South Africa is a member of the Berne Convention which means that copyright will subsist in a “work” as defined in the Copyright Act 1978 once it is reduced to physical form and it will be protected as such in all the member countries. At the last count, there were approximately 164 countries which are members of the Berne Convention including the United States of America, the United Kingdom, Australia, China and India.
As a signatory to the Berne Convention, South Africa has agreed to offer to other member nations the same protection for literary and artistic works as they would provide in terms of their own copyright legislation. This is commonly known as the principle of national treatment. Works published by signatories to the Berne Convention are, therefore, afforded full protection of copyright in South Africa and vice versa.
As a general rule, the author of a “work” is usually the owner. Section 21 of the Copyright Act commences with the statement that: ownership of any copyright vests in the author. There is, however, a clear distinction between the person who creates the work and is the author and the person who owns the work once it comes into existence. For instance, sec 21(1)(b) itself prescribes that 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, and is made for the purpose of publication in the periodical concerned, the proprietor is the owner of the copyright in the work. This does not, however, preclude the author from concluding a contract with the proprietor to the contrary.
The position of a freelance writer is different. He or she is not employed under a contract of service and will approach the proprietor of the periodical in question to sell an article which is considered newsworthy or interesting. Accordingly, the proprietor is not able to claim ownership and the general rule referred to above thus applies to the freelancer writer who is also the owner of the copyright.
But even as an employee may alter his or her position by contract, so too, can the freelancer. He or she could agree to assign ownership in the copyright to the proprietor or could, instead, contract in regard to the use which the proprietor is entitled to make of the article. Without some form of contractual restraint, a publisher to whom the copyright in an article has been assigned, could probably publish it in a periodical other than that for which it was originally tendered by the author.
Furthermore, if the article were sold for use in some foreign publication the author would probably not, without a contractual right, be entitled to receive any portion of the proceeds. If the author assigns the ownership of the copyright without any form of reservation, he or she is probably without any remedy which makes it imperative for the freelance author to insist upon a contract which protects the author’s rights.
Some proprietors object to having their hands tied in any way in regard to an article which they have bought but freelance writers should attempt to retain some control over the use of the article which they have sold to ensure, for instance, that it is not used world-wide without any of the profits accruing from such use reaching the author. A contract is essential because the law does not provide detailed answers for each situation which may arise.
The freelance writer would, however, still have his “moral rights” which he could exercise in regard to his article or other work. Moral rights entitle the author to claim authorship of the work and by reason thereof, to object to any distortion, mutilation or other modification thereof where this would be prejudicial to the honour or reputation of the author. These rights remain with the author for his or her lifetime and are not lost even if copyright in the work has been fully assigned to the assignee.
The position in regard to photographs is different. Section 21 of the Copyright Act provides that: “Where a person commissions … and pays or agrees to pay for it in money or in 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 if any copyright … subsisting therein”. The owner may exploit the rights and sell the photographs to whomsoever it chooses. As in the case of literary works, the usual position may be varied by contract and sec 21 specifically provides that the photographer may agree, notwithstanding having been commissioned to take the photographs, that he will retain the ownership.
Although it is open to the author and the photographer to protect their respective positions by contract and to this end should have some form of standard agreement available for signature by a proprietor of a periodical or a person commissioning photographs, the position of the freelance writer, wishing to sell his writing, is not always sufficiently strong for him to insist upon his own contractual terms. In the absence of any legislative protection, other than that set out above, the writer will always have to decide between his or her desired protection and the hard reality of wanting to sell the work involved.
NOTE: This information should not be regarded as legal advice and is merely provided for information purposes on various aspects of intellectual property law.
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