1. What is copyright?

Copyright is that exclusive right given by law to the creator of an original work to allow others to use and exploit that work.

In terms of the Copyright Act 98 of 1978 copyright applies to the following works:
* Literary, musical and artistic works;
* Cinematographic films;
* Sound recordings;
* Broadcasts;
* Program-carrying signals;
* Published editions; and
* Computer programmes.

Examples of copyrighted assets include books, newspapers, magazines, databases, web site content, computer software, pictures, photos, course packs and other multi-media products.

2. When does copyright subsists in a work?

Copyright is not registered but applies automatically to any work, if it is original, reduced to material form and created by a South African. Note however, that international treaties state that copyrighted assets created in other countries have protection from infringement in South Africa and vice versa. The inclusion of a copyright sign © is not a requirement in terms of South African law in order for copyright to subsist in a work. In terms of the Copyright Act, the general rule is that the author or creator of a work owns the copyright therein.

There are, however, certain exceptions to this general rule:

*	The employer owns copyright in works created by employees;
*	The employer owns the copyright created for a newspaper and magazine, but only insofar such works are used in that newspaper or magazine; and
*	A person who commissions another to create or produce a photo, gravure, film and sound recording and pays for it, owns the copyright in that work.

As to the ownership of copyright in software, web site design, databases and electronic rights in paper based works commissioned and paid for, there are current uncertainty and this uncertainty should be addressed in a properly drafted assignment agreement. The difference between ownership of copyright and ownership in the medium the copyrighted work is presented in is very important. For example, if a person purchase a book, CD, newspaper or magazine he/she is the owner of that book, CD, newspaper or magazine. However, he/she does not own the copyright in that book, CD, newspaper or magazine and cannot copy it and sell or distribute IT to others. In these cases there are two rights involved, a proprietary right in the medium and a limited use right in the copyright.

The general rule is that copyright subsists in a work for 50 years from the date of first publication, and:

*	For literary (books, newspaper, course packs and magazines), artistic (paintings and sculptures) and musical works, copyright subsists for the life of the author PLUS 50 years.
*	For software, copyright subsists in the program for 50 years from the date it was made available to the public. Therefor, there will be no copyright protection for Windows 2000 in the year 2050.
*	It must be noted that, although the author of a work might be dead for fifty years and his work may be in the public domain, a publisher may still have the copyright in the layout, spelling, page numbers, font and paraphrasing of that work. Extreme caution is advised when public domain works are exploited by any Company or Business Unit.

The original creator or author of a copyrighted asset could allow others to exploit these assets and such permissions are given in the form of licences or assignments. It is important to understand the difference between an assignment of copyright and a licence to exploit certain rights:

*	A licence is a limited, non-exclusive right given by the copyright owner to others to exploit certain limited rights in a work, e.g. an author licence a publisher to produce, market and sell his copyrighted asset in the form of a book (if the copyrighted asset could be compared to a house, a licence could be compared to the owner allowing someone else to rent one room for a limited time). A licence could be a verbal agreement. In the electronic environment a licence could be created when a person opens a software application (cling wrap agreements) or click on a "yes" or "I accept" button (click wrap agreements).
*	An assignment of copyright is an exclusive, full transfer of rights in a copyright asset, e.g. if an author assigns all his rights in a copyrighted work to a publisher the publisher has all the rights to print, sell, translate and market the work in any format like a book, a CD-ROM or an Internet download (if the copyrighted asset could be compared to a house, an assignment could be compared to a sale of the house). An assignment must always be a written agreement signed by the parties.
*	Note that an author or creator of a copyrighted work retains certain moral rights in his/her work even after assignment. These rights include a right to be credited as author or creator of the work and the right to prevent manipulation of his/her work in such a way that it would damage the reputation of the original author. Moral rights could be waived by agreement.

3. How is copyright infringed?

Copyright is infringed when a person uses or exploits a copyrighted work outside the scope of a written, verbal or implied licence or assignment. Generally copyright is infringed by the making of a reproduction, publication or dealing and broadcasting the work without the necessary rights. In this regard it should be noted that the law of copyright infringement is moving away from the Copyright Act towards agreements (licences and assignments) entered into between the created and exploiter. Also note that a company that was grated the right to publish a work once or publish a work in a book or newspaper may not have the necessary right to publish such a work in an electronic database or online version of such magazine or newspaper:

*	In Random House v Rosetta Books, the plaintive is suing an e-Book publisher over ownership of electronic copyright for eight previously published works. The authors gave "book" publishing rights to Random House before the Internet even existed and at a time when "book" had no other meaning than ink on paper. Electronic rights where not addressed in the contracts. These authors then gave their electronic rights in the titles to Rosetta Books. Random House argued that an e-book is just another kind of book and that the authors had no right to allow Rosetta Books to publish the titles in electronic form. Rosetta Books argued that an e-book and electronic rights are totally different from book rights - an e-book is produced, used, searched and enjoyed differently than an ink on paper book. This case has caused widespread concern among authors and publishers. All publishers that did not negotiate electronic rights could now see their "books" being published electronically by another publisher.
*	In Greenberg v National Geographic a three judge panel ruled that the National Geographic violated copyright law when it reproduced its magazine on a CD-ROM without getting permission from the photographer to do so. The agreement between National Geographic and Greenberg allow the magazine to use his photographs once and after publication all rights in the photos reverted back to Greenberg. It was also ruled that the CD-ROM version was a new work and not merely an electronic reprint of the original magazine. This case also caused havoc in the publishing industry. Publishers would have to be careful about how they use materials from earlier publications. It is now necessary that contracts with artists for pictures, photo's and cover designs should also address electronic rights.
*	In Tasini et al v New York Times the U.S. Court of Appeals issued a ruling that could create a legal minefield for freelancers and publishers. The three-judge panel held that newspaper and magazine publishers that publish works by freelance writers in their hardcopy editions couldn't include such works in electronic versions of those editions without the permission of the writers. A copy of the decision is online at http://www.tourolaw.edu/2ndCircuit/September99/97-9181.html

Digital Rights Management is a term used to explain all the actions and steps taken by big companies to avoid copyright liability in the electronic environment and to protect their own content from infringement. It entails getting permissions to use works electronically, monitoring online use of rights granted and saving the necessary meta-data with such works. Some acts that would normally be copyright infringement are exempted by the Copyright Act; these "fair use" circumstances include use for research, private study, private use, back-up of software, criticism, review and reporting on current events, use by the SABC, judicial proceedings, quotations, teaching, and lectures.

4. Copyright general

The following is a list if copyright myths that would not be defences against infringement claims and illustrates how the public sometimes regard copyright:

*	Everything on the Internet is in the public domain and not protected by copyright;
*	Anyone that puts material on the Internet wants others to use it and therefore I can do anything with such material without getting permission;
*	I am allowed to use other people's copyrighted assets as long as I do not charge others for it;
*	My book, CD or web site will be a wonderful showcase for the author's work, so I do not need permission to use it.
*	If I copy or scan somebody else's copyrighted asset I have the copyright in the photostat or scanned copy;
*	The copyright owner will never know I used his/her material;
*	I paid for the book, CD, newspaper or magazine that I copied, so I already have the rights copy and exploit the copyright therein;
*	The infringement was innocent rather than intentional so I didn't need permission;
*	I will only use the copyrighted material on my company's intranet and therefore do not need permission to use it;
*	I do not need permission if I got the copyrighted material from a non-profit organisation;
*	The work I copied had no copyright notice on it, so I may use it without permission;
*	I gave credit to all the authors, so I may use and copy their work;
*	I do not need permission because I will change the copyrighted work; and
*	The original author lives in England, therefore the work is not protected in South Africa.

Reinhardt Buys is a partner at Buys Incorporated, a law firm specialising in internet, media and intellectual property law. Click here to visit their site.

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