Copyright in Traditional Works

Good progress has been made in South Africa to establish and provide for the adequate protection of traditional works over the past few years. One of the first being the formulation of the Intellectual Property Laws Amendment Act No. 28 of 2013 (the IPLAA), which came into effect on 10 December 2013.

The aim of the IPLAA is to provide for the recognition and protection of certain manifestations of indigenous knowledge as a species of intellectual property, through the amendment of the existing South African Intellectual Property Framework.

One of the Intellectual Property species amended by the IPLAA to account for traditional works is the copyright. Unlike most other types of intellectual property , which require a formal registration process of the subject matter, copyright protection is enjoyed upon the fulfilment of various statutory requirements set out in the Copyright Act No. 98 of 1978 (the Copyright Act).

In light of the above, this article briefly identifies that which is categorised as a traditional work and when such a traditional work will be eligible for copyright protection in terms of the amendments implemented by the IPLAA.

The IPLAA introduced traditional works as a new and distinct type of work eligible for copyright protection and are defined in the IPLAA as “a derivative indigenous work and an indigenous work”.

A derivative indigenous work is defined as any type of work forming the subject of the Copyright Act, i.e. literary, musical, artistic works etc., applied to any form of indigenous work recognised by an indigenous community as having an indigenous or traditional origin, and a substantial part of which was derived from indigenous cultural expressions or knowledge irrespective of whether such derivative indigenous work was derived before or after the commencement of the IPLAA.

The IPLAA defines an indigenous work as being a literary, artistic or musical work with an indigenous or traditional origin, including indigenous cultural expressions or knowledge which was created by persons who are, or were, members, currently or historically, of an indigenous community and which literary, artistic or musical work is regarded as part of the heritage of such indigenous community.

An indigenous community is defined in the IPLAA as any recognisable community of people originated in or historically settled in a geographic area or areas located within the borders of the Republic, existing at the date of commencement of the IPLAA, characterised by social, cultural and economic conditions which distinguish them from other sections of the national community, and who identify themselves and are recognised by other groups as a distinct collective.

Indigenous cultural expressions or knowledge in turn, is defined in the IPLAA as any form, tangible or intangible, or a combination thereof, in which traditional culture and knowledge are embodied, passed on between generations, and tangible or intangible forms of creativity of indigenous communities, such as amongst others; stories, epics, legends, poetry, riddles, songs, rhythms, instrumental music, the sounds which are the expression of rituals, dances, plays, ceremonies, rituals, expressions of spirituality or religion, sports, traditional games, puppet performances, other performances whether fixed or unfixed, handicrafts, architecture, tangible spiritual forms, and expressions of sacred places.

The IPLAA then provides in Section 28B that copyright shall only be conferred onto a traditional work if such traditional work is an indigenous work, as defined above, or in the case of a derivative indigenous work, copyright shall only be conferred onto the traditional work in question, subject to the eligibility requirements set out in the Copyright Act, and on the following two conditions:

•    only if the work was created on or after the date of commencement of the IPLAA; and

•    the indigenous community from which the work, or a substantial part thereof originated, is or was an indigenous community when the work was created.

In essence the above provision provides that derivative indigenous works created prior to 10 December 2013 (being the date of commencement of the Intellectual Property Laws Amendment Act) are not eligible for copyright protection under the Copyright Act and accordingly no retrospective application of the Copyright Act is created for derivative indigenous works.

However, if the traditional work is an indigenous work, subject to the eligibility requirements set out in the Copyright Act, the provisions of the Copyright Act will apply to the indigenous work regardless of when the work was created, and is therefore not subject to the point of creation limitation that derivative indigenous works are subject to.

The proprietorship of a traditional work is a separate enquiry under the IPLAA and, where derivative indigenous works are concerned, there are corresponding provisions in the IPLAA for the payment of royalties to the indigenous community vested with rights in the indigenous work, from which the derivative indigenous work was derived