Copyright in SA

So What . . . About Copyright?

So What . . . About Copyright?              
What Artists Need to Know About Copyright & Trademarks

For filmmakers, visual artists, and writers

Edited by David Bollier, Gigi Bradford,Laurie Racine and Gigi B. Sohn
Produced by PUBLIC KNOWLEDGE “The public’s voice in the digital age.” 

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Please note that this PDF is based on United States of America Law and acts only a reference.

Who owns your Photograph

Who owns Your Photograph?
Chris Reilly 2005

The subject of photographic copyright ownership in South Africa is complex and fraught with controversy and emotion, no more so than amongst professional photographers.

Modern laws of copyright ownership are intended to allow people who create original artworks, literature, designs and inventions to claim authorship of their creations, make money selling them, and to prevent unauthorised copying by others.

The concept of copyright was first realised when Johann Gutenberg invented the movable-type printing press in Germany in 1455, and printed several copies of the Mazarin Bible. However, it was the Americans who first formalised the notion of copyright ownership laws when they included the following clause into their Constitution in 1787, over 200 years ago; Photography was only invented 50 years later:

“The Congress shall have Power To promote the progress of science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

At the end of World War II in 1945, South Africa was a founding member of the United Nations. However, when the UN General Assembly proclaimed the Universal Declaration of Human Rights in 1948, General Smuts, then South Africa’s prime minister, refused to sign it. It was regrettable since Article 27 of the declaration included the following clause:

“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

The moral interest mentioned above refers to the author’s right to be identified as such, and the material interest refers to the author’s right to reap the financial rewards of exploiting his artistic productions. So the basis for copyright ownership by authors has a long and hard-won pedigree. But only as recently as 1978 did American professional photographers get an amended Copyright Act that unequivocally made them the copyright owners of commissioned photography.

Ironically, in 1980, the South African Copyright Amendment Act No. 56 of 1980 did exactly the opposite; it removed copyright ownership of commissioned works (granted two years earlier in the SA Copyright Act of 1978) from South African photographers and handed it, on a platter, to their clients. That Act is still in operation today over a quarter-century later. The specific and much hated clause, Section 21(1)(c), slightly abridged, states:

“Where a person commissions the taking of a photograph, the painting or drawing of a portrait, and the making of a film or sound recording, such person shall be the owner of any copyright subsisting therein.”

Not only does the above clause discriminate against freelance professional photographers, but also portrait painters, film makers and the entire population of artists in the SA music industry! And, more than a decade into South Africa’s Liberation, its professional photographers (and musicians) have yet to be liberated.

Fortunately, paragraph (e) of the same Section allows for the exclusion of the above clause if the client verbally agrees to it. That is, it does NOT have to be in writing. This is an important lever for professional photographers to claim ownership of copyright in commissioned works. But it MUST be used in conjunction with a formal pricing and usage structure such as that found in the PPSA Price & Usage Guide 2000.

The Professional Photographers of Southern Africa (PPSA) spent twenty years battling to achieve several aims: To have the discriminatory aspects of the Copyright Act removed, to get the photographers to unite as a body in meeting with the publishing and advertising associations, and to establish a system of professional pricing, copyright management and usage fees for commissioned photography.

When the Constitution of the New South Africa was being planned in 1992, the public was invited to submit their aspirations and desires of what should be in the New Constitution. The PPSA (Professional Photographers of Southern Africa) submitted a proposal that Article 27 of the UN Declaration of Human Rights (see above) be included in the South African Bill of Rights to protect intellectual property rights.

When the New Constitution was promulgated in 1996, Article 27 was nowhere to be found. The subsequent interference by government in the South African pharmaceutical industry is suddenly no mystery. It was planned all along. Although cheaper medicines for all is a noble cause, the lack of constitutional protection of intellectual property has impacted ordinary citizens. Photographers and other authors still have NO protection of their intellectual property rights in the Bill of Rights. What’s even more ominous is the SA Human Rights Commission (HRC) pamphlet entitled Protecting Your Rights, in which it defines the following:

Equality: You cannot be discriminated against. But affirmative action and fair discrimination are allowed. (Discrimination against professional photographers is not fair.)

Property: Your property can only be taken away from you if the proper rules are followed. (This depends on who is making the rules.)

Fortunately, it also states: Freedom of Expression: All people, including the press, can say whatever they want.

It’s time for South African photographers, and indeed all authors, artists and intellectuals, to say what they want!


What is copyright?

The Copyright Act 98 of 1978, as amended, does not include a definition for "copyright" per se.

Copyright can broadly be described as person’s exclusive right to do or to authorise the doing of certain acts in relation to specific works which are subject to copyright protection and which are owned by that person.

What are the requirements for copyright?

Save for cinematograph films, it is not possible to obtain registration of copyright works in South Africa. Copyright subsists automatically, provided that certain requirements are met.

One of the most important requirements is that the work must be produced in material form. In this regard, no copyright subsists in ideas per se, but only in expressed ideas.

Another very important requirement for copyright is “originality”. This does not mean that the work must necessarily be novel. It simply means that the author must have spent considerable time, skill and efforts to create the work.

The work must furthermore be listed in Section 2(1) of the Copyright Act, as a work which may qualify for copyright protection. This list includes amongst other things, artistic works, literary works, musical works, published editions, sound recordings, computer programs and cinematograph films.

Considering this list, it is possible that, for instance, a single magazine may incorporate a number of different and separate types of works, such as artistic (which includes photographs), literary works and published editions (which relate to the lay-out of the contents). If the magazine is published in electronic format, it may also incorporate a computer program and possibly also a number of sound recordings and cinematograph films.

Who owns copyright?

When considering protecting copyright, it is very important to consider who the author (creator) and owner are of each specific type of work involved.

The general rule is that the author is the initial owner of the copyright. However, there are certain important exceptions. In this regard, it is particularly important to consider the contribution and capacity of any person who assisted with the creation of any work involved, whether or not you paid them for their contribution. In this regard, it is important to bear in mind that assignment and exclusive licensing of copyright has to be done in writing.

If you have incorporated parts of existing copyrighted works in your work, it is also important to consider what you copied and whether it is likely that you infringe on any person’s rights.

It is often advisable and more convenient to assign the copyright in the different works to a single legal entity, such as a company or close corporation, to manage and commercially exploit the product effectively. This is a good approach to consider when consider managing or selling copyright vesting in computer software products.

How do you protect copyright?

Save for cinematograph films, which is possible to register in South Africa, the most common ways to protect copyrighted works against infringements would be to mark works with copyright notices and to enter into written copyright agreements.

Copyright notices serve as a warning to third parties that copyright subsists in a work. Generally, copyright notices should include the following elements:

  • The name of the owner
  • The international copyright symbol ie ©
  • The year in which the work was created
If any person made a contribution to your work or you have incorporated a part of a work belonging to someone else, written copyright assignment agreements should be considered to transfer any relevant rights to the owner of the complete product.

If any person is authorised to use your work or a part thereof, although it is not compulsory in all instances, it is advisable to always enter into written agreement with such licencee or authorised user.
Why is copyright important for the publishing industry?

Copyright applies to most publications, irrespective of the literary quality, whether published in hard copy or electronically.

The business of a publisher revolves around the developing of books, magazines and other publications which are usually subject to copyright protection and which are offered for sale and sold and distributed for money.

Copyright is therefore a very important aspect of the publishing industry for authors, editors, publishers, illustrators, graphic designers, photographers and other creative persons contributing to the final product.

Who owns copyright in a publication?

A single publication, for instance a paper based book, may embody a number of different "works" which are eligible for copyright protection and which are created and/or owned by different persons.

A traditional book publication would usually at least incorporate a "literary work" and a "published edition". The literary work relates to the novel or the story written by the author. The published edition relates to the typographical arrangement of the literary work on the pages of the book. This includes, for instance, the paragraph spacing, lay-out, font and page numbers. The published edition is created and owned by the publisher.

If a publication includes, for instance, a photograph, such photograph could constitute an "artistic work" which is created and possibly owned by a separate person. For example, let us consider the example of a magazine article. X, a travel and independent writer, emails a photo article on the Okavango Delta to the editor of a travel magazine. It is accepted for publication, edited and appears in the magazine four months later.

Generally speaking, copyright in the literary work (the narrative accompanying the photographs) would belong to X. The author of a photograph is by definition the person who is responsible for the composition of the photograph, but there are a number of important exceptions to this rule. If, for instance, spouse commissioned and paid a professional photographer to take the photographs that form part of the travel article, the copyright therein would belong to the wife.

Furthermore, the magazine publisher would own the copyright in the published edition of the version of the article as it published in the magazine. Therefore, even though X and his wife hold copyright in the literary work and the photographs respectively, they could be infringing on the magazine's copyright in the published edition, if they make unauthorised photocopies of the article as it appears in the magazine and send it to all their family and friends.

From the example above, it is evident that a single magazine article, or a single page or chapter from a book for that matter, can embody different copyright works. What is more, the copyright in each such work can belong to totally different persons. To complicate matters further, copyright gets passed down to the author's heirs, if he or she dies before the copyright expires.

Recommendations for authors::

Authors are usually individuals who do not work with copyright agreements on a daily basis. When dealing with a commercial publisher, you may be requested to sign a publishing agreement to authorise the publisher to publish the work and sell the publication.

Most publishing agreements make provision for the assignment of the copyright of the author's literary work. Most agreements also provide for the author to warrant to the publisher that the work does not violate any existing copyright.

Please do not wait until your manuscript is nearly finished before considering copyright. It would save a lot of time, money, and trouble to consult with a copyright attorney, publisher or someone else who is knowledgeable on copyright before starting to gather material for your work.

Recommendations for publishers:

From a publisher's perspective, it is very important to request authors to sign written publishing agreements. In this regard, it is important to borne in mind that copyright can only be assigned in writing.

It is generally necessary for publishers to take assignment of the author's copyright in a literary work, at least for a term. In our view, there are two important reasons for this.

Firstly, the publisher must obtain all the rights in a publication to be in a position to legally trade with the final product on its own. If the publisher does not hold all the rights in the works embodied in a final product, it would have to involve, for instance, the author in all dealings with the publication. This can frustrate the workflow and income of the publisher.

The publisher must further ensure that its publishing agreement is clear and comprehensive enough to provide it with all rights necessary to deal with the publication in the manner envisaged. In this regard, the agreement must be clear on aspects like reprints, translations, film rights, whether the publication would be published in hard copy and/or electronic format, and which countries the publication will be sold and distributed.

Secondly, most publishers mandate collective rights organisations to licence use of their publications. If a publisher is not the owner of the copyright vesting in the different works embodied in a publication, it would not be in a position to mandate a collective rights organisation. Especially in the case of learning and academic institutions, it may be necessary to negotiate and consider blanket licenses to authorise lecturers and students to make necessary reproductions of published works for study purposes.

In South Africa, the Dramatic, Artistic, Literary Rights Organisation (DALRO) is the only collective rights organisation which receive mandates from authors and publishers to licence the use of their dramatic, artistic and literary works. DALRO administers the licence schemes for dramatic, artistic and literary works, collect and pay over royalties to authors and publishers. DALRO is a non-profit organisation and requires an administrative fee for this service.