Ownership plays a major role in copyright law, especially when an individual would like to enforce their rights against another person. Copyright law is concerned with the protection of expressions of ideas which include literary and artistic works. Literary and artistic works include books, lectures, dramatic works, musical compositions, drawings, photographic works, illustrations, etc. Copyright law is concerned with the protection of the expressions of ideas rather than the ideas themselves.[1]
For a work to be protected, the work needs to meet four requirements namely:
1. the work must be a defined work as contemplated in section 2 of the Copyright Act of 1978 (the Act);
2. the work must be original;
3. the work must be reduced to a material form;
4. the work must be conferred by virtue of nationality, domicile or resident
The nine classes of works that are eligible for copyright are:
1. literary works;
2. musical works;
3. artistic works;
4. cinematographic films;
5. sound recordings;
6. broadcasts;
7. programme-carrying signals;
8. published editions; and
9. computer programs[2]
The next requirement is that the work should be original but the Act does not define what “original” means, however, the court held in Haupt t/a Soft copy v Brewers Marketing Intelligence[3] that a work can be considered original,
“if it has not been copied from an existing source and if its production required a substantial (or not trivial) degree of skill, judgment or labour.”
A great example of this is the Bible. The Bible itself cannot be copyrighted but its translations and interpretations are, hence, we have a variant of the Christian bible. Those translations are based on an existing source and are protected by copyright.
As mentioned previously, copyright law is not concerned with protecting ideas but instead protects the manifestation of the ideas and the last requirement speaks to the protection of works that were created by a person or entity that resides or is domiciled or registered in South Africa.
Section 21 (a) of the Act states that ownership of any copyright vests in the author, this is the general rule, however, there are exceptions to this rule. Section 21 (b) and (c )of the Act go further and create a clear distinction between a person who creates the work (author) and the person who owns the work once it comes to existence (copyright owner).
Section 21 (b) states that “where a literary work or artistic work that is made by the author in the course of his employment …” the employer would be the owner. However, this is different for freelance writers as they are not employed under a contract of service. The freelance writer would be the author and owner of the work, but the freelance writer can assign the rights of the work to the publisher.
Section 21 (c )states that “where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure…” the person who commissioned or paid for the work is the owner of the work.
In a situation where Mfumo hires Seadimo (a photographer) to take pictures of his wedding, Seadimo would be considered the “author” of the pictures as she took them, but Mfumo would be the owner as he commissioned Seadimo to take those pictures. However, this position (of ownership) can be changed by a contract.
It is interesting to note that the Copyright Amendment Bill (the Amendment Bill) “changes” the default setting of who is the owner of a commissioned work i.e. photographs, paintings, etc.
Section 22 of the amendment bill states that:
“Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of an audiovisual work or the making of the sound recording and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, the ownership of any copyright subsisting in the work shall, subject to subsection (3), be governed by written agreement between the parties.
If or when the amendment bill is signed it would be important to state in the contract whom the ownership rests with, but in cases where the contract does not stipulate who the owner of the right is, the amendment bill states that in a case where the owner is not stated in the contract, “…the ownership of the copyright shall vest in the person who commissioned the work…”
To answer the question, s/he who commissions the work is the owner thereof.
(This article is provided for informational purposes only)
[1] https://medium.com/@igama.com/religious-works-and-their-copyright-status-a62d3dc41fb0
[2] Section 2 of the Copyright Act
[3] Haupt t/a Soft copy v Brewers Marketing Intelligence (Pty) Ltd and Others 2006 (4) SA 458 (SCA) at para 35
