One of the challenges which face our South African creative industry today is the exploitation of their work, either by global or local companies or individuals without fair or even any compensation. According to pundits in our local creative industry, this was nearly exacerbated by the Copyright Amendment Bill of 2015 (hereinafter referred to as “the Bill”), which the President, Mr Cyril Ramaphosa referred back to Parliament due to its controversial nature, and strong opposition from the creative industry.
Another significant concern was that the Bill is an infringement of Section 25 of the Constitution South Africa, Act No. 108, 1996. In this article, we will be discussing what constitutes an infringement of copyright and how copyrights can be transferred by way of assignment or licensing.
In terms of Section 23(1)(a) of the Copyright Act No.98 of 1978 (hereinafter referred to as “the Act”), direct infringement occurs when someone other than the copyright holder produces unauthorized copying, adaptation or publication of a work without permission.
However, when determining a direct infringement, the following dual test is applied according to the Act:
- Is there an infringing work present?
- i) Firstly, there must be sufficient objective similarity between the copyrighted work and the infringing work. This requires an objective comparison of the two works to determine similarities.
- ii) Secondly, there must be a link between the creation of the infringing work and the copyrighted work (causal link). Both of these elements have to be satisfied.
- Has an act of infringement been committed?
The infringer must exercise one or more of the reserved entitlements contained in sections 6 to 11B of the Act. For example, the publication of an unauthorized or translation of the protected work or the reproduction of the work by, for example, a photocopy or the rewriting or re-typing thereof or the placing of the work on a website.
According to Section 23(2) of the Act, the infringer does not actually commit any of the restricted acts himself/herself but deals with direct infringements in some way. For example, by importing or selling pirated DVDs, whenever the infringer deals with infringing copies.
As a general rule, the copyrighted material must be used for commercial gain as opposed to private or personal use to constitute copyright infringement.
Transfer of copyright by Assignment
Assignment is when there is a divestment of rights and the copyright holder no longer retains rights in the work. For this to happen, the owner has to enter into a valid assignment agreement. The agreement must be in writing, signed by or on behalf of the copyright holder and it must contain an explicit agreement to transfer clearly indicating an intention to transfer and acquire copyrights.
Transfer of copyright by granting of an exclusive license
The copyright owner still retains the right, but the assignee can exercise the right exclusively. This can take place in two folds, either by granting of exclusive rights or non-exclusive rights.
The assignee may exercise the exclusive rights – the right is granted to the exclusion of all others, including the holder.
The non-exclusive right is granted to the assignee, but the holder can continue to exploit the work and may grant more than one license.
Unlike any other Intellectual property rights, copyrights do not need to be registered if you are a South African Citizen or if your work was produced in South Africa. The protection automatically exists except for films.
Written By: Petrus Khumalo of Schoemanlaw Inc.