By Gary Boruchowitz Senior Associate and Frank Sebatana Candidate Attorney
Background
With societies worldwide forced to move swiftly into a digital reality due to the Covid-19 pandemic, it will become increasingly important to protect your original work from copyright infringement.
Many tech savvy copyright infringers exist on the web and will illegally appropriate your work for their own commercial benefit without your permission, nor by you granting them a license to utilise your work in return for a substantial sum of money.
Copyright
In South Africa, copyright is regulated by the Copyright Act 98 of 1978 (“the Act”). A common misconception is that one has to register copyright over their work for it to be protected. This is not true. Original work that is eligible for copyright is automatically assigned the moment that it has been created.
The following works, if original, are eligible for copyright protection: –
- Literary Works (e.g. novels, poems, textbooks, letters, reports, lectures, speeches);
- Musical Works;
- Artistic Works (e.g. paintings, drawings, photographs);
- Cinematograph Films; and
- Sound Recordings, etc.
Infringement of Copyright
Infringement of copyright happens when an infringer copies, uses, sells, rents out, imports or disposes, stores and makes available copyright protected works without authorisation from the copyright holder, or without having obtained permission from a copyright holder, or entering into a license agreement with the copyright holder.
Your copyright is also infringed when it is reproduced by converting the work into a three-dimensional form, or, if it was already three-dimensional, by converting it into two-dimensional. It is further infringed when adapted, which adaptation includes transforming the work in the manner that the original or substantial features thereof remain recognisable.
Many copyright infringers raise the defence that they utilised a photograph that you shot merely by way of background, or incidental to the principal matters represented on the infringer’s website or other online platform. However, on further scrutiny, it is established that the infringed work was deliberately part of the composite whole of the website or online publication. It is important to advise the infringer that a website or online publication is not a cinematograph film or a transmission in a diffusion service and, therefore, this defence stands to fail in a court of law.
A copyright infringer may also argue that it utilised your protected work merely for illustrative purposes but it is clearly obvious, to any objective viewer, that it was used for commercial purposes, to drive traffic to the infringer’s website or online publication in order to increase sales.
Copyright holder
One needs to be acutely aware that a distinguishing feature of South African copyright law is that copyright rights very often do not subsist in the original creator of the work.
If an individual or entity is mandated to create photographs by a third party, the mandator/third party and not the creator of the original work holds the copyright right in terms of section 21 of the Act.
This is true also of employees who create an original literary work in the employ of their employer, which employer is, for example, the proprietor of a newspaper, magazine or similar publication. The copyright right is held by the employer, not the employee, even though the employee was the author of the literary work. According to section 21(1)(b) of the Act, the author holds the copyright right until the work comes into existence and is published, at which point the proprietor becomes the owner of the work.
This, however, does not preclude the author/creator of the literary work from entering into a contract, where the converse is the case, and we encourage employees to do so if this can be negotiated.
On the other hand, Independent contractors, particularly freelance writers, own their original work that is published in a newspaper, magazine or similar publication. The proprietor is not able to claim ownership and the freelance writer is also the owner of the copyright in his or her literary work.
Assignment, cession and licensing of copyright
The mandator/third party or freelancer referred to above can, however, assign their rights in this work to another person or entity if they so wish. This is done by way of an assignment agreement.
Copyright in an article or image may also be ceded and/or transferred by way of a cession agreement to a third party, which includes the copyright holder’s accrued rights of action and claims against third parties arising out of past infringements of the copyright in the aforesaid artistic works.
It would be prudent for all creators of original work to ensure that, when they are mandated to produce an original work, they simultaneously enter into an assignment agreement with the mandator/third party, where the mandator/third party assigns the original piece of work to the creator, or the parties enter into a license agreement, which allows the creator to utilize their work under license from the mandator/third party.
The same is true for employees. Many unscrupulous entities and employers will take advantage of this legal position to deny you access to and control of your original work, which they know is of high value and which can be exploited by the mandator or employer for their own financial gain, which will see you miss out on potentially large sums of money flowing from the creation of your work which is being used for commercial purposes by large institutions or companies.
A license agreement grants the licensee usage rights of the copyright works to reproduce, use and/or rent the work protected through the agreement. It is important to note that such rights can vary, for instance from usage rights to master reseller rights. The copyright holder is paid for such usage rights.
A qualified person
This refers to any person that is a citizen or permanent resident of South Africa and, in the case of a company, a body incorporated under the laws of the Republic. Only a qualified person is protected by the Act.
Berne Convention signatories
However, the copyright treaty known as the “Berne Convention for the Protection of Literary and Artistic Works” states that, if copyright exists in one of these countries, then this copyright is valid in all member countries (contracting parties) who are signatories to the Berne Convention. At present, there are 178 signatory countries out of 195 countries in the world today.
In cases where a foreign national or a foreign entity has his, or her or its, original work unlawfully infringed in a particular foreign jurisdiction, this work is protected, if the foreign national or entity is from any of the 178 signatory countries of the Berne Convention.
Duration of Copyright
Copyright has different lifespans and varies depending on the work eligible for copyright, but has an average lifespan of 50 years from a specific date.
Copyright laws and regulations are applicable to online infringement of eligible copyright material, just as it does to offline material.
The internet is a threat to copyright law as a result of digital piracy, which involves the illegal obtaining and sharing of copyright protected material. One method to deter online infringement is to bring proceedings against internet service providers (ISPs) to prevent profit theft and deter others from indulging in online piracy. There are a number of online copyright cases brought against those who actively provide internet users with the ability and means to infringe copyright.
Where account holders are provided with the technological means by an ISP to infringe copyright, and where the ISP appears to have been established particularly for the purpose of allowing copyright infringement to occur, an ISP will be liable for authorising or inducing copyright infringement. However, an ISP may escape liability where it was established for legitimate purposes and it does not intend to assist copyright infringement.
The Covid-19 environment
Education, be it for schooling or corporate training, appears to be the most prone to copyright infringement in the current environment. Covid-19 has completely halted face-to-face classes/lectures/seminars and has caused may institutions to move online.
Copyright experts are beginning to scrutinise the legality of displaying copyright protected material during virtual classes/lectures and what has now replaced seminars and is commonly being referred to as webinars.
Teachers, lecturers, presenters and panellists are recording videos whilst reading from books/texts/manuscripts/websites, which is deemed to be a reproduction of material in which copyright rights may subsist and for which permission is required to make use of. Uploading these videos online could amount to an act of reproduction.
Live streaming may be considered a performance, alternatively a broadcast, whilst the downloading of this video would constitute an act of reproduction.
In this new virtual learning environment, where access to learning material is limited by copyright protection, it is recommended that the necessary permission for use of the material is obtained.
Conclusion
Copyright infringement is nothing more than the theft of your property, property that often has a high value attached to it, and, in many cases, as high a value as some of your more cherished corporeal property. Do not underestimate the value of your intellectual property, or let anyone take advantage of the fact that copyright is often not protected with the same gusto and prudence as other forms of property.
If you are battling to protect, prove and enforce your copyright rights or are unsure if you may be infringing copyright, contact legal professional and copyright specialist Gary Boruchowitz from Schindlers Attorneys and Notaries.
