The issue of relinquishing copyright ownership in an original piece of writing, an artwork or a musical composition is a complex and delicate issue. Fortunately, South African law provides some guidelines as to what is morally fair for authors or creators of such works.
The author of a work is typically the first owner of the copyright in a work subject to certain exceptions. These exceptions include for instance where a work was made during the course and scope of an employee’s employment (employer = copyright owner), where certain limited works are commissioned by another person or where the ownership of the copyright is transferred by way of agreement.
Copyright vests automatically in certain works (e.g., literary, artistic or musical works, cinematograph films, computer programmes etc.) provided such work is original and has been reduced to material form. Further requirements are more fully set out in the Copyright Act of 1978 (the Act). The Act provides for i.e., the type of works that are copyright protectable, who would be the owner of such copyright and ascribes certain exclusive rights to the owner of the copyright in a work in South Africa.
In essence copyright grants the copyright owner the exclusive right to do or to authorise the doing of certain acts (adaptation, reproduction, publication, performance…) in relation to a work of copyright or to transfer such rights. Copyright can be transferred from one owner to another by way of either formal assignment or testamentary disposition. Such transfer must be in writing and signed by the copyright owner to be valid. Should the author of a work not be the owner of the copyright in that work the author legally has no say in the execution of the exclusive rights or subsequent transfer of such rights.
This does seem unfair. However, the Act does provide a consolation prize to authors of works in the form of what is called the author’s ‘moral rights’. Section 20 of the Act provides for two distinct types of moral rights being:
- Paternity rights:
Paternity rights, although a somewhat antiquated term, provides that notwithstanding the transfer of the copyright in a literary, musical or artistic work, in a cinematograph film or in a computer program, the author retains the right to claim authorship of the work. I.e. the right to put his/her/their name to a work.
- Integrity rights:
Whereas under integrity rights the author of a work retains the right 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.
This integrity right is subject to the proviso that:
- an author who authorizes the use of his work in a cinematograph film or a television broadcast; or
- an author of a computer program or a work associated with a computer program
may not prevent or object to modifications that are absolutely necessary on technical grounds or for the purpose of commercial exploitation of the work. The type of work and modifications required would thus have to be considered on a case-by-case basis to determine what modifications would prove to be absolutely necessary in such instances.
Any infringement of the author’s paternity or integrity rights would be treated as an infringement of copyright in terms of the Act. The author would then be deemed to be the owner of the copyright in the work and would have the same remedies available for relief. These remedies could include an interdict, damages, or in lieu of damages a reasonable royalty. Caselaw on this is however little to none. The enforcement of moral rights is not likely to be met with any substantial monetary reward but is rather there to ensure that authors or artists retain the right to claim recognition for their works as created.
Accordingly, as I’ve written this piece during the course and scope of my employment with Adams & Adams, Adams & Adams would be the owner of the copyright in this literary work despite me being the author. That said, I still have the right to claim that my name appears with this article (see above) (my paternity right) and for it not to be ripped apart (my integrity right). Thus legally and morally fair and square.
Daniëlle van Deventer
Senior Associate | Trade Mark Attorney