South Africa: Copyright: The Unsung Hero

Last Updated: 5 April 2017
Article by Nola R. Bond
Most Read Contributor in South Africa, November 2018

If copyright could be compared to a continent, it would be Africa: exciting, diverse, multi-faceted, often misunderstood and far too expansive to cover in a few hundred words!

Copyright is one of the statutory forms of intellectual property which enjoys global recognition but which is often overlooked by business owners in their hurry to register patents, designs and trade marks. Unlike other forms of intellectual property like patents, trade marks and designs, registration of copyright is generally not required in order to be enforceable and in many countries no procedure exists for its registration. There are some important exceptions to this situation, but those will be touched on a little later.

To start with, let us consider the question - what is copyright? In essence, copyright is the material embodiment of a creative work, produced by the author's own endeavours which gives the author a monopoly to do as he/she wishes with the work, to the exclusion of others. Importantly, for copyright to subsist in a work, it must be original. This does not mean it has to be inventive (in the patent sense) or that it has to have intellectual or artistic value, although these elements may exist. The most obvious forms of copyright are found in creative works in the field of arts and entertainment but copyright extends far beyond that and also covers software, broadcasts and programme carrying signals. It is also found in technical and artistic drawings, instruction manuals and materials, packaging designs, original numbering systems (such as those used to catalogue spare parts), letterhead designs and business card and website layouts. In fact, virtually every aspect of a business has a potential copyright element which is often overlooked or not appreciated. This is particularly because copyright is not always identified at the time of creation and its existence is simply overlooked or not realised.

An additional complication surrounding copyright lies in the distinction between authorship and ownership. The author is the person responsible for creating the work – i.e. reducing the idea or concept to material form. Where more than one person is responsible for the production of the work, co-authorship may exist. A typical example of this is software, where one person may write the original software and another is responsible for the updates to the software.

Ownership is a far more tricky issue and will depend on the laws of the country where the work is created and the provisions relating to ownership. In South Africa, if a person is employed by a company to fulfil a particular role, the copyright that is created during the course of that employment will be owned by the employer. As soon as we step outside of the realms of direct employment to relationships with independent contractors this may change and a separate contractual relationship regulating the ownership of copyright may be required to ensure it vests with the rightful owner. An example of this would be a graphic designer who is employed by a company and creates a new product label as part of his or her duties. Here the company automatically owns the copyright by virtue of the employment relationship. On the other hand, if an advertising agency is engaged to design the new product label, in the absence of an agreement to the contrary, ownership of the copyright will remain with the advertising agency. As mentioned, this is the situation in South Africa, but the position in a number of other countries is that if a person commissions a job and pays for the work to be created, then that person will own the copyright in that work.

Another reason why copyright can be a thorny matter is that it is difficult to prove authorship and ownership where no proper records showing when and by whom the work was created have been kept, as is often the case. In addition, South African law provides that ownership of copyright can only be validly transferred if the transfer is in writing and signed by or on behalf of the transferring party.

As mentioned, most countries do not require registration of copyright and, in fact, few countries even have laws or regulations which allow for registration, although certain obvious exceptions exist, the most notable of which are the USA, China and India.

Although copyright, like most other intellectual property rights, is very much a territorial right, it is enforceable globally amongst members of the Berne Convention. The Berne Convention states that member countries must afford the nationals of other member countries the same protection for their works of copyright as their local laws afford to their own nationals. According to the World Intellectual Property Organisation (WIPO) there are presently 171 contracting parties to the Berne Convention including South Africa, the USA, the UK and many European countries. There are also additional industry-specific and other intellectual property laws and treaties which impact on copyright, which are beyond the scope of this discussion but which can be accessed through the WIPO website.

In countries where registration of copyright is an option, it is important to note that registration does not affect the subsistence of the right but there are certain commercial advantages which warrant obtaining registered protection, the primary advantage being that a registration serves as proof of the existence of the right, which facilitates easier enforcement and serves as a notice to would-be infringers and counterfeiters of the owner's legal title. Unlike other forms of intellectual property, copyright is not classified into classes which allows for more flexible and widespread enforcement. A recent example that shows the importance and strength of copyright is that of a well-known South African rugby franchise that had its logo and brand copied by a Malaysian soft drinks producer. Not only was the rugby franchise able to rely on its copyright to ensure that the offending products were removed from the market place, but it was also able to force the Malaysian counterparty's conflicting trade mark applications to be withdrawn. Without the copyright, the rugby franchise would have had no statutory legal remedies because it had not registered its trade mark in Malaysia (which is understandable given that Malaysia is not exactly a big rugby-playing nation).

With a world relying more and more on e-commerce, unauthorised products and counterfeit goods are reaching destinations more rapidly in ever growing numbers. Copyright is one of the strongest intellectual property rights that can be relied upon in curbing this scourge because of its global recognition and enforceability.   

So what should businesses be doing to ensure its valuable intangible assets are secure? It starts with education, early identification and keeping good records. Regular intellectual property audits should be carried out to assist in identifying copyright and other intellectual property rights which may have been overlooked. A review of employment contracts, consultancy agreements and third party contracts is also highly recommended to address the ownership of copyright and other rights. In tandem with business strategies, copyright owners need to utilise these rights to the maximum benefit of their organisations by developing strategies for identification, commercialisation and enforement. Known copyright should be marked with a copyright notice or the © symbol, which serves to give notice to third parties of existing rights. 

Copyright also enjoys a high level of longevity - in most cases 50 years after the death of the author - which certainly makes it an asset worth caring for.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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