Many individuals and organisations often fall victim to copyright being “stolen” by third parties with whom they would have entrusted their work without much thought on the implications of their disclosure to those third parties.  

Often these individuals and organisations find difficulty in taking legal action against those third parties based on copyright infringement as they do not have sufficient evidence to prove that they are, in fact, the owner of the work in question – a critical criteria to meet in order to succeed in a claim of copyright infringement.  

Set out below is a brief explanation on copyright and what practical steps individuals and organisations can take to ensure that they do not fall victim to “stolen” copyright, or if they do, they are able to take action timeously and effectively. 

What is copyright? 

Copyright is an exclusive right granted by law for a limited period of time which protects original works of authorship. These works include (amongst others) literary works (such as books) artistic works (such as photographs and paintings), musical works, sound recordings and cinematograph films. A full list of all works capable of enjoying copyright protection is set out in section 2 of the Copyright Act No. 98 of 1978. 

Can copyright be registered? 

Copyright automatically subsists in a work that is eligible for protection, provided all the conditions for the subsistence of copyright have been met. These conditions include that the work must be original and reduced to a material form, and that the author (original creator) of the work is a qualified person (i.e, a South African resident or resident of a country that is a member of the Berne Convention).  As far as the South African law is concerned, there are no prescribed formalities for the acquisition of rights to copyright, as it vests automatically in the original creator. Simply put, copyright arises as you express your ideas in a material form, for example the moment you write down the words on a page for your next book. No registration is required (or even possible) for such protection to subsist.  

What can individuals and organisations do to prove authorship and ownership of a protected work? 

It is imperative that creators keep detailed records of when they commenced conceptualizing, writing or creating their work, as well as when any disclosures of the work were made to third parties. This can be in the form of dated documents, drafts and communications, stored safely (and preferably electronically).  

Ensuring that adequate contracts and non-disclosure agreements are in place, which deal with the issue of authorship, ownership and use of the intellectual property rights vesting in the work, is also important, particularly when individuals and organisations are seeking funding or investment from third parties. 

Once individuals and organisations have detailed records of their works and adequate contracts in place, the burden of proving authorship and/or ownership in a possible copyright infringement claim against unauthorized third-party users becomes far less onerous. 

KISCH IP has experience in all aspects of copyright law and is able to advise individuals and organisations on how and when copyright subsists, how best to protect and enforce copyright, and how to control the commercial exploitation of these rights. KISCH IP can also assist individuals and organisations in safely and securely storing their works for possible future enforcement purposes, or provide suitable contracts and non-disclosure agreements, and vet any existing contracts and agreements to ensure that they contain adequate copyright and intellectual property clauses.   

Contact one of our experts at: tammip@kisch-ip.com or shaawnl@kisch-ip.com