MBOMBELA – In the age of social media, the term “copyright” has been thrown around by Internet users threatening to sue the reproducers of their work. Many have done so in caps lock, blissfully unaware of the fact that it is, in some cases, permissible. Where the reproducer is the media, it has even more leeway. Lowvelder consulted various sources* for clarity on these issues.
• When does copyright cover a work?
A work is protected by copyright when it exists in material form and was published in South Africa (or any country that forms part of the Berne Convention) for the first time. The Berne Convention bound a vast number of countries over decades and assists in regulating copyright in member countries.
• Who is the holder of copyright?
Copyright vests in a work’s author. It comes into existence when the work is created and does not have to be registered. If a literary or artistic work is made by the employee of a newspaper, magazine or other news provider, the employer will hold the copyright. The same applies to situations where a person is ordered and paid to take a photo or produce a video. The party who ordered the production will hold the copyright.
• Does copyright last indefinitely?
No. Where the work is a literary, artistic or musical one, it expires 50 years after the author thereof has died.
Where the work is a film, photograph or computer programme, it will last for the longest of these two periods: Fifty years after the product was made available to the public or 50 years after the work was first published. Copyright may be transferred wholly or in part.
• When may a work, covered by copyright, be reproduced?
– When the author’s consent has been obtained and subject to the reasonable conditions thereof.
– If the work is artistic, photos, broadcasts or from published editions and used for private study or research.
– For criticism or review. However, the reproducer must mention the source and author of the material he is commenting on. (Limited to the use of artistic works, photos, broadcasts, published editions, cinematograph films, sound recordings and computer programmes.)
– When a journalist uses it to report on current events. The source of the work and the name of its author, if available, must be cited. (Limited to the use of artistic works, photos, broadcasts, published editions, films, sound recordings and computer programmes.)
– Where quote from another’s written text is used, it must be limited in as far as the use thereof is necessary for its purpose.
• Rule of thumb: The fair practice/fair dealing rule:
If you need to reproduce another’s work, do so in a limited way (the extent of the reproduction must be limited with the consideration of its purpose.) The reproducer must go to all reasonable lengths to obtain the owner or creator’s permission to reproduce his or her work. If this cannot be obtained, the reproducer must nonetheless cite the source of the work (Facebook, for example).
• What is the position when photos, placed online, are distributed?
The Copyright Act states what the reproduction of artistic work will not amount to a violation of copyrights if the artistic work is in public view on a permanent basis. Statues in town squares serve as an example, as do famous paintings permanently on display in museums. No South African court has ruled on whether social media platforms qualify as places of public display for the purposes of the act.
Also read: The ultimate social media checklist
Our courts have ruled that social media users should heed to the privacy settings of other users. If a user has limited the audience of his post to “friends,” he does not intend for it to be viewed by the public. Reproducing it to a broader audience would be in violation of his privacy preference. On the other hand, courts have also mentioned that any post placed on a public forum, should not be made if the user’s intention is not to make it publicly visible. Experts have said that self-regulation, with the emphasis on caution, seems to be key when it comes to the online world.
• What is the difference between copyright and trademarks?
Whereas copyright vests in a work without the work or the rights relating thereto having been registered, a trademark is registered in terms of the Trade Mark Act.
It deals with the mark associated with a brand of goods or services, that distinguishes it from other goods or services that might have the same nature.
• Can I have both copyright and trademark rights in the same work?
Yes. If I draw a picture and I choose to register that picture as a trademark that will distinguish my services from that of another, I may do so. The copyrights relating to the picture have automatically vested in me, while the trademark will have to be registered to the same picture.
• How does someone infringe upon trademark rights?
– By “stealing” a trademark and placing it on their goods or services, which are materially similar to the goods or services that the trademark in question has been registered to.
– By diluting a trademark through reference. An example would be printing a well-known trademark with adapted text. If a court finds that diluting of the trademark has taken unfair advantage of the original trademark, tarnished its reputation or has otherwise prejudiced the trademark, the court may rule that the trademark was unfairly diluted by the wrongdoer’s reference.
* Sources: Copyright Act, A Practical Guide to Media Law. By Dario Milo and Pamela Stein, Trademark Act.
Images: Flickr (Licence: Commercial use)
