Whose work is it anyway?

by Nikita Theodosiou. I am sure you have all heard of copyright but do you know what it really is, what is protected by copyright, how it comes into being and how ownership is determined? Copyright exists in any piece of work (an article, an artwork, a book, a photograph, a song, a movie, a computer program and so forth) that has been created by a human being (animals, for example, cannot own copyright in a work, even if they unintentionally walked paint across a canvas or pressed the trigger on a camera to take a selfie).

Copyright ownership prevents others from copying, reproducing or adapting the work that you expended time and effort in creating (or that which you commissioned someone else to create on your behalf) without your explicit consent. Copyright does not exist in an idea, a concept or a plan, only in physically manifested works. In fact, copyright subsists automatically upon the creation of a work and unlike patents, registered designs and, to an extent, trademarks. it does not require registration in order to be enforced, at least not in terms of South African law. There needn’t be any form of creative or artistic expression for a copyright to subsist in a work, as long as you have spent time and effort in creating an original work, copyright will attach to that work.

Copyright exists in a wide range of artistic, literary, musical works, films, sound recordings, broadcasts and programme-carrying signals from mathematical formulas (as long as they have been reduced to writing or physically manifested in some way); to yoga sequences that have been performed, sport timetables and fixtures, YouTube videos and podcasts… it is an endless list. Considering the extensive ambit of copyright, I am sure you can see why it is important for companies and individuals to protect their copyright and that it can be a very valuable asset to have.

It is also important to note that copyright does not last forever. The lifespan of copyright is different for different types of works. For example, copyright in literary, musical works and artistic works (except photographs) will be in effect and enforceable for the lifespan of the author plus 50 years after the author’s death. Copyright in photographs will last for 50 years from the date on which the photograph was lawfully made available to the public, and failing such public release, 50 years from the end of the year in which the photograph was taken. The general rule of thumb is that the author of the work owns the copyright to the work but there are a few exceptions to this general rule. The first being that in a situation where a person is hired or commissioned by another to take a particular photograph, to paint a portrait or to make a film or a sound recording in exchange for payment of an agreed sum of money, the person who commissions the work is deemed to be the owner of the copyright in the work.

Ownership

Similarly, when an employee produces a work within the course of their employment, their employer will own the copyright to such work. This common law principle was re-affirmed in the Supreme Court of Appeal case of King v SA Weather Services. Interestingly, in that case, King, who had not been employed as a software developer, developed software to assist him with performing his job better and more efficiently. He had developed this software after working hours and in his free time, but the Court held that because he had ultimately developed the software to assist him with his job, the software had been developed ‘within the course of his employment’ and accordingly, the SA Weather Service owned the copyright in, and the rights, to the software.

On the other hand, section 21(b) of the South African Copyright Act (No. 98 of 1978) provides that “where a literary or artistic work is made by an author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship; and is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall be the owner of the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical or to reproduction of the work for the purpose of its being so published; but in all other respects the author shall be the owner of any copyright subsisting in the work.”

The above means that, in the absence of contractually agreed provisions dealing with the ownership of the copyright in any work produced by the author for the newspaper or magazine, the newspaper, magazine or the like will own the literary or artistic work in so far as it is published in their medium and they will thus have the right to make copies of such work for distribution, and so on, but the author of the work will retain some rights to the copyright and would be entitled to use their work for their own benefit.

Accordingly, if I was employed by a publication to write articles, the magazine would own the copyright to this article and I would have no claim to same. If I am not employed at the publication, but commissioned to write a specific article and paid for producing this article, then the magazine would own the copyright to the article and I would have no claim to same. Whereas, if I was not an employee of the publication, but had been asked by it to write an article for publication, on a topic of my choice, whether I am to be paid for the article or not, and we hadn’t agreed to specific contractual provisions dealing with the ownership of copyright, the magazine would have the rights to publish this article, to print and to reproduce it. Yet, I could set up a personal blog and publish the exact same article there and the publication would have no recourse against me for ‘re-using’ the article.

As you can see from the above, establishing ownership of the copyright in a work can be confusing and accordingly, it is recommended to include protection of copyright (and other Intellectual Property) clauses in your agreements in order to make it explicitly clear who will own the Intellectual Property created by either party, including any improvements made thereto. These clauses can also provide for the cession and assignment of Intellectual Property from one party to the either. At least, in this way, both parties will be aware of where they stand.

Main image credit: Photo by bruce mars on Unsplash.

Nikita Theodosiou is an Associate at Consilium Legal Services.

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