Copyright

The Berne Copyright Convention covers most countries of the world, including South Africa and lays down basic principles of copyright law that all member countries have to comply with. The discussion that follows focuses on the law in South Africa, but many aspects are also valid in foreign countries, broadly speaking Berne extends your copyrights internationally. However, make a point of consulting an expert!

What does copyright protect?

The following works, if they are original, qualify for copyright: Literary works, musical works, artistic works, cinematograph films, sound recordings, broadcasts, programme-carrying signals, published editions and computer programs.

The category of copyright works most relevant for product design will be artistic works. ‘Artistic work’ is defined to include drawings (including drawings of a technical nature or any diagram, map chart or plan), paintings, sculptures, engravings and photographs, all irrespective of their artistic quality; works of architecture; and works of craftsmanship (including works of artistic craftsmanship as well as works of craftsmanship of a technical nature). ‘Drawings’ would thus include engineering and industrial design drawings. The concept ‘works of craftsmanship’ would include three-dimensional articles, for example prototypes and models prepared in the course of design work.

In the case of your artistic works, a person who makes a three-dimensional reproduction (eg in the form of a usable article) of your two-dimensional artistic work such as a drawing, infringes your copyright in that drawing. This may also include the making of a two-dimensional reproduction of your three-dimensional work.

It is important to remember that copyright does not protect the underlying concepts of a design, only the particular rendition of it, which you have reduced to material form (including in a computer).

Who is protected by copyright?

You, the author or creator of a copyright work will usually become the first owner of the copyright in the work, unless you were in employment under a contract of service or apprenticeship, in which case your employer becomes the owner. (But see further below “Who owns Copyright“.)

Copyright can be assigned (ie transferred) or licensed, but an assignment and an exclusive licence have to be in writing.

How does copyright protect you?

Copyright arises automatically when a work is made, in all Berne Convention countries.

Copyright protection affords you, the copyright owner the right, generally speaking, to prevent others from making a reproduction (or copy) of the copyright work, from publishing the work, and, in some instances, from offering it for hire by way of trade. A person who carries out any of these acts without your authority commits an act of direct infringement of your copyright in the work. To constitute a direct infringement of copyright, actual copying must have taken place, and the reproduction must be substantially similar to the original work.

The protection afforded you also extends to so-called acts of indirect infringement, which will occur where a person deals in certain ways with copies of a copyright work, knowing that they are infringing copies. These ways include importing, selling or dealing in the infringing copies or acquiring a computer program.

Copyright law protects the reputation and identity of the author, by giving a right of action against  distortion or mutilation of the work in a way which is to the detriment of the honour or reputation of the author. This applies, even if the ownership of the copyright resides in another person or company. This protection of the author can not be taken from him or her.

Are there any exceptions to copyright protection?

In the usual course of events, it will also be an infringement of the copyright in a work if a reproduction of another reproduction of the work is made. However, important exceptions apply to spare parts throughout the world and in South Africa three-dimensional products placed in the market by authority of the copyright owner and which are primarily utilitarian and have been made by an industrial process, are excluded from copyright. Copying these does not infringe copyright in the original work, but taking legal advice beforehand is well advisable because this area of copyright law is controversial and very complex.

A general exception is research or private study or personal use and fair review or criticism or reporting of current events.

Who owns the copyright?

As mentioned above, the author is the owner, unless employed in a contract of service or apprenticeship.

Where the employer is the proprietor of a newspaper or magazine, the proprietor owns copyright only for purposes of publication.

For works created between January 1, 1979 and May 23, 1980, these exceptions do not apply in South Africa, unless the work was done for the state or an international organisation.

Another exception is where certain copyright works (namely photographs, painted or drawn portraits, films, sound recordings and gravures) are made on commission and on payment of money, in which case the person who commissioned the work becomes the owner of the copyright.

The effect of these exceptions as to ownership can be changed by agreement in writing between the parties concerned, i.e. assignment.

How long does copyright protect you?

Copyright is immediate and for artistic works (except for photographs), copyright endures for the entire lifetime of the author and for a period of 50 years after his death. In the case of photographs (also cine films and computer programs), the period of copyright is 50 years after the work is first lawfully made available to the public.

What will copyright protection cost you?

There is no registration fee, since copyright arises automatically by law, this is a ground principle of the Berne Convention. However, some countries (eg USA) allow an optional registration, to help prove and enforce your copyright there. Only film copyright can be registered in South Africa.

What are the registration requirements for copyright?

No prior registration or any other formality is required (besides preferably having the date, your name and a copyright statement (eg Copyright reserved) witnessed on your original copy). You can have that copy authenticated by a notary or commissioner of oaths. As mentioned optional registration is available in some countries.

What countries are covered by copyright protection?

The list of Berne Convention countries is obtainable from the Government Printer, or consult a specialist lawyer. The few non-Berne Convention countries may well have copyright law available to you, but you would have to investigate.

Tips and comments on copyright protection

If you forget to register your design, then copyright may save the day if you habitually keep all original drawings, date them and have them witnessed and have the copyright symbol and notice on all drawings.

It is preferable to use the copyright warning notice. The abbreviated form is the year of first publication of the work followed by the encircled ©, and the name of the copyright owner. Very often the words “ALL RIGHTS RESERVED” are added to the notice (this is actually required in most South American countries).

When subcontracting work, check that the terms of the contract provide in writing that you, as the commissioner become the copyright owner or are acknowledged as the existing owner.