Episode 24: Copyright and the law

Synopsis

Summit TV speaks to Marilyn Krige from Adams & Adams about the complex laws around copyright and when rights of ownership may turn out to not quite be as expected.

Transcript

Summit TV speaks to Marilyn Krige from Adams & Adams about the complex laws around copyright and when rights of ownership may turn out to not quite be as expected.

Stephan Lamprecht: Welcome to the Intellectual Property show on Summit TV. Probably the most common form of intellectual property impacting on all of us is copyright. In the studio tonight is Marilyn Krige from Adams & Adams to talk about this key aspect of intellectual property management. Marilyn, what is copyright?

Marilyn Krige: I think it’s often a misunderstood concept. It impacts on all of us - really it’s an original work that’s created with independent skill and effort, and that could extend to various types of works from the literary to artistic work, to a sound recording or even a broadcast. Its ambit is very wide. The important part is it exists by virtue of its creation. Other than for a cinematographic film there is no actual way of registering a copyright…

Stephan Lamprecht: So if I have written a document then there is copyright in that document?

Marilyn Krige: There would be. The way you would tell the world out there that there was copyright is to place a copyright notice on it - which would usually be the C in the circle that I’m sure you’ve all seen on websites and similar documents, with the year of its creation and the person who claims to own that copyright work. The reason copyright becomes complicated is because it often doesn’t follow the ordinary rules that you would expect it to - for example when a person take a photograph you would think the photographer is the author and the owner of the photograph. Not so. In fact the person making the arrangements for the taking of the photograph - the art director may in fact be the copyright owner. By virtue of his position and the organisation and the contract he has with them the organisation may in fact own the copyright.

Stephan Lamprecht: Just for interest sake you’re touching on the photograph issue - I’m standing in public and somebody comes and takes a photograph where I’m in the photograph. They didn’t specifically take a photograph of me - do I have any rights?

Marilyn Krige: You have certain personality rights which are slightly different. Certainly they couldn’t just take a picture - unless you were background. There is provision made for that especially as you will understand in the film context where often pictures are taken of bystanders but in the context of being a bystander…

Stephan Lamprecht: Now take for example if I file and register a patent I get 20 years of protection if it’s approved - what is the situation with copyright?

Marilyn Krige: Copyright extends a bit longer. It’s 50 years from the death of the author - or from the date of publication when it went into the public domain. In the USA they’ve now extended that copyright term to 70 years - so it offers a fairly long extension period of protection. The importance is to make sure that your rights are protected. There the important thing is always to realise that copyright can generally not be transferred without a written contract of assignment. The important thing there - and I think many people don’t realise it - is you decide that you’re going to commission a design agency to come up with a new prototype or a new television advertisement, and because it’s a television advertisement it would fall into the exceptions and a commission is allowed in those circumstances. If it’s a television work - a cinematograph film - you can commission that as long as you’ve paid for it. But if you ask somebody to simply create a print advertisement - and there was no written deed of assignment transferring those rights to the company who in fact asked for the work to be created - the design company or the advertising agency may actually own the copyright to that work…

Stephan Lamprecht: So if I for example go and write a book and I give this book to somebody to print - they go and design a cover for the book, and there’s an artwork on that cover - I don’t necessarily own the design and artwork even though I paid them for it?

Marilyn Krige: In the context of your book scenario the fact that you wrote the work - and the words are your own - you would own the copyright in the words. But where it becomes a bit more complicated is that you would then have copyright in the published edition. The published edition copyright would probably vest in the publisher. Then it comes to the design of the book cover - and let’s assume it was an outside party, that party would in fact own the artistic creation and they would own it until such time as it was assigned either to you or the publisher who may own certain rights in respect to that work.

Stephan Lamprecht: In the real world what do you find - do most people realise this? After they have contracted somebody to go and design a web logo or a trademark or something - do they actually go and get the reassignment?

Marilyn Krige: Regrettably they often only realise too late - they realise once the situation has arisen where the copyright work where they want to enforce it, or they’ve changed ad agency, or their prototype is suddenly being used to create another prototype - and they say “this is not acceptable, what about the rights we had in it?” That’s only to find out they didn’t secure their rights upfront. The best advice is always upfront to make sure that you have a contract covering what you’ve instructed any other party to create on your behalf - and that all the copyright in that document or whatever it is vests in you. Take for example a music compact disc - there’s about five or six different types of copyright work in that, which explains sometimes why the costs are what they are. There is the person who created the musical score, the person who created the words, the person who created the sound recording, there’s the artistic cover that’s another form of artistic copyright - so there’s all of these things together. So it’s important when thinking of copyright to think outside the box and look at a contract to make sure you’ve secured those rights.

Stephan Lamprecht: You mentioned the 50 years - or 70 years if it’s in the US - do I have to pay any maintenance fees or anything like that to keep it regular?

Marilyn Krige: Absolutely not. Again the importance here - and especially in a company - is to ensure that you keep very accurate records of the copyright that you’ve created and that you can sustain showing who the author was. Authors to be honest are generally individuals or humans employed by your company - and in that fifty year period you may need to prove your copyright. If you don’t have a good database with the information showing how that work was created and proving that it’s going to be that much more difficult.

Stephan Lamprecht: In terms of copyright is the way that we practice copyright in South Africa from an IP point of view similar to the rest of the world?

Marilyn Krige: It is very similar to the rest of the world. The good thing is South Africa is a member of the Berne Convention that provides a copyright created in South Africa - or in any other country that’s a member - would be protected in South Africa.

Stephan Lamprecht: Obviously the internet is a very different scenario. I wrote something - I’m the copyright owner by virtue of publishing it. Maybe it becomes available on the internet - now suddenly it’s accessible all over the world - do I still have rights?

Marilyn Krige: You do. Again copyright is what we call in the legal profession a “negative right.” It’s one of those things that you need to take action to enforce your rights against other parties…

Stephan Lamprecht: So I’ve got to write someone a letter or tell them “you are infringing on my copyright…”

Marilyn Krige: Correct. I think with the internet and the explosion of internet technology we are starting to think how we identify copyright and how we define it - because our copyright is probably infringed every day by other people. They think it’s quite acceptable to lift a photograph from somebody else’s site and use it on their own. That is not correct. In the same way you cannot lift pieces of an article. I think some people have this mistaken perception that if you only take out 10 lines it’s acceptable. Not at all - it goes to whether or not that is the essential part of the work. It could be a one line like: “We will fight them on the beaches.” That could be the copyrighted statement that you would be infringing if you copied it.

Stephan Lamprecht: So remember to always think about the ownership of your intellectual property - especially the copyright inherent in designs and trademarks - as you may not own the underlying intellectual property.