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The South African Copyright Act 98 of 1978 (as amended) can be a little challenging for photographers. This is our part in demystifying it.
Copyright Overview
Photographers copyright is currently a highly contentious issue with the explosion of the internet and the blatant theft of images from photographers web sites, or perhaps worse, the claiming of license to use and sub-license images by social media web sites and networks like Facebook and Instagram. However, it is not all doom and gloom.
It is essential for photographers to know the truth about copyright, especially in South Africa, as the true financial value in photography is not in day rates or selling a picture but is in owning the copyright to your photographs empowering you to sell the license for use of your work.
Bill Gates is one of the wealthiest men in the world today. He did not make his fortune selling software, he made it selling license for use of his software. He understood the true value of intellectual property, as do the businesses who exploit photographers in South Africa. Even though many businesses present photographers with contracts to sign on a ‘take it or leave it’ basis, claiming ownership of their work, every contract is negotiable. The successful negotiation of a contract starts with knowing the truth about your rights.
Copyright is a legislated right that forms part of Intellectual Property (IP) law. Other IP rights are patents, trade marks and registered designs. Unlike other IP rights, copyright is an automatic right and does not have to be registered in order to be enforced. The name copyright is actually the right to prevent copying and in Europe is also referred to as ‘author’s right’ or ‘originators right’.
The copyright law of the Republic of South Africa (RSA) that is applicable to photographers is very different from that of most first world countries. The international standard for copyright for photographers is that the photographer owns the copyright to all images created by the photographer, regardless of who commissions the images and what the images will be used for, unless an agreement is entered into specifying otherwise.
The basic underlying principle of the protection of copyright is that the work must be original. This means that the work must originate from the author (creator) and must not be copied from another authors work. The work should be the result of the author’s independent labour and not an imitation of an earlier work. There is a fine line between copying, appropriating and referencing.
Copying is the act of making something similar or identical to an original. The problem is telling which is the original and which is the copy. The best example of this in photography is a photographer photographing another photographers photograph, the challenge being in determining which is the original.
Appropriating is a nice way of saying stealing and is to take something for someone’s own use without the owner’s permission. Millions of photographs are appropriated from the internet every day which is illegal blatant copyright infringement.
Referencing is legal and is the act of mentioning or alluding to someone else’s work, using their work as a source of information or inspiration and then creating a new, original work.
South Africa’s Copyright Act of 1978 (Act 98 of 1978, as amended) covers literary, musical and artistic works, cinematograph films, sound recordings, broadcasts, program- carrying signals, published editions and computer programs. ‘Artistic work’ includes paintings, sculptures, drawings, engravings and photographs, irrespective of the artistic quality thereof.
For further information you can purchase ‘EXPOSED – The Business of Photography’ by Deryck van Steenderen.
Human Rights
The United Nations values the protection of intellectual property so highly that it enshrined it in the Universal Declaration of Human Rights.
Article 27
- Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
- Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Both the Berne Convention and the United Nations Universal Declaration of Human Rights specify that the Author of the works has the right to protection NOT the owner of the copyright therein, if the owner of the copyright is not the Author of the works.
The Republic of South Africa is a member of the United Nations and a signatory to the WIPO.
According to WIPO, “copyright and related rights protect the rights of authors, performers, producers and broadcasters, and contribute to the cultural and economic development of nations. This protection fulfils a decisive role in clarifying the rights of different stakeholders and the relationship between them and the public.The purpose of copyright and related rights is to encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.”
Copyright protects the right of the Author (creator) to reproduce the work in any manner or form unless otherwise agreed. Limited private or personal use of the work by others is allowed without payment. The ownership of copyright ensures that the creator of the work can earn an income from the commercial use of a significant part of the work, or through unacknowledged use of the work.
In many countries copyright can be assigned, sold or licensed to others. Some countries do not allow the separation of authorship and ownership of copyright. The Author is the owner of the copyright to the works by default and cannot assign the copyright but they can sell license for use of the works.
For further information you can purchase ‘EXPOSED – The Business of Photography’ by Deryck van Steenderen.
Moral Rights
Moral rights are quite simply the right of the Author (Photographer) to be named as the Author of the work he/she creates as well as to object to the distortion or mutilation of that work.
Section 20 of the Copyright Act refers to Moral Rights.
- Notwithstanding the transfer of the copyright in a literary, musical or artistic work, in a cinematograph film or in a computer program, the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of the work where such action is or would be prejudicial to the honour or reputation of the author.
- Any infringement of the provisions of this section shall be treated as an infringement of copyright under Chapter 2, and for the purposes of the provisions of the said Chapter the author shall be deemed to be the owner of the copyright in question. [S. 20 substituted by s. 19 of Act No. 125 of 1992.]
The Author of the work must assert the right to be named as the author of that work and again, this should form part of your basic business documentation.
Ownership of Copyright
The part of the South Africa copyright act that is particularly relevant to photography is section 21(1) under the heading ‘Ownership of copyright’.
a) Subject to the provisions of this section, the ownership of any copyright conferred by section 3 or 4 on any work shall vest in the author or, in the case of a work of joint authorship, in the co-authors of the work.
Section 21(1)a) of the Copyright Act clearly states that photographers who create their own images (not commissioned) own the copyright to those images by default and are entitled to sell the License for Use of the images. This is in line with internationally accepted copyright for photographers standards. However, sections (b)-(d) are the sections that are problematic for photographers in South Africa.
b) 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 by virtue of section 3 or 4.
Section 21(1)b) states that if a photographer is employed by a periodical (newspaper/magazine) then the employer owns the copyright to the images the photographer creates during the course of their employment by default. Unless otherwise agreed. This only applies to photographs that are created by the photographer during work hours. Any images created by the photographer outside of work hours are not covered by this.
c) Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a 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, such person shall, subject to the provisions of paragraph (b), be the owner of any copyright subsisting therein by virtue of section 3 or 4.
Section 21(1)c) states that should a photographer be commissioned to create photographs and the photographs are created in pursuance of that commission, then the commissioning agent owns the copyright to the commissioned images by default. Unless otherwise agreed.
d) Where in a case not falling within either paragraph (b) or (c) a work is made in the course of the author’s employment by another person under a contract of service or apprenticeship, that other person shall be the owner of any copyright subsisting in the work by virtue of section 3 or 4.
Section 21(1)d) states that should a photographer be employed in any other capacity then the employer will own the copyright to images created by the photographer during the course of his/her employment. Unless otherwise agreed.
Section 21(1)e) is the section that empowers photographers to agree otherwise.
e) Paragraphs (b), (c) and (d) shall in any particular case have effect subject to any agreement excluding the operation thereof and subject to the provisions of section 20.
This means that whilst the employer/commissioning agent owns the copyright by default in Sections 21(1)b)-d), the Author (photographer) is empowered to change this by mutual agreement, and bring it in-line with what is internationally accepted. This can form part of the Photographers job documentation for ease of use.
Section 21(2) states that:
Ownership of any copyright conferred by section 5 shall initially vest in the state or the international organisation concerned, and not the author.
Section 5(2) states that:
Copyright shall be conferred by this section on every work which is illegible for copyright and which is made by or under the direction or control of the state or such international organisations as may be prescribed.
Essentially this means that the copyright to photographs created by employees of, or commissioned by the state, is the property of the state, or prescribed international organisations, for the lifespan of the copyright.
The Copyright Act is applicable to the Republic of South Africa ONLY and does not extend beyond it’s borders. Images commissioned in South Africa for use in South Africa that are then used outside of South Africa fall under the World Trade Organisation Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), that includes the Berne Convention.
For further information you can purchase ‘EXPOSED – The Business of Photography’ by Deryck van Steenderen.
The TRIPS Agreement
South Africa has been a World Trade Organisation (WTO) member since 1 January 1995 including the World Trade Organisation Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) that includes the Berne Convention for the Protection of Literary and Artistic Works. South Africa has been a member of the Berne Convention since 1928. The USA became a member of the Berne Convention in 1989. Prior to this a bilateral agreement existed between the RSA and the USA that was withdrawn in 1991.
The TRIPS Agreement was established to protect intellectual property rights internationally including photography. In terms of this agreement the copyright legislation of the country in which the images are used applies. That is, if a photographer is commissioned to create images in South Africa and the images are then used in Germany then German copyright law applies. In this case the commissioning agent would have to buy the rights to use the image in Germany from the photographer.
The Berne Convention for the protection of Literary and Artistic works was established in 1886. Countries that are signatories to the Berne Convention, like South Africa, are bound to protect the rights of authors from other member countries in the same way as they protect their own. This is known as the principle of national treatment. The copyright is by default the automatic property of the author of the work who may assign the copyright or sell license for use thereof, in most member countries, regardless of whether the author owns the copyright to their work in their own country.
Article 9(1) of the Berne Convention states,“Authors of literary and artistic works protected by this convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form.”
Article 9(2) states that:
“It shall be a matter for legislation in the countries of the union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”
According to Part 2, Section 1 of TRIPs, “Members shall comply with Articles 1 through 21 of the Berne Convention and the appendix thereto.” There is no special provision in these treaties that determines any rights for an ‘owner’ of copyright as opposed to an ‘author’ of that work. The rights are very clearly the Author’s.
Despite local copyright law, the international position is that the author is protected by the copyright laws of the signatory countries and any use of a photograph outside South Africa by the local owner, who is not the author of the work, amounts to copyright infringement.
Information in this article may be verified on the International Law Office’s web site in an article written by Attorney Ron Wheeldon.
For further information you can purchase ‘EXPOSED – The Business of Photography’ by Deryck van Steenderen.