FAQ'S - Frequently Asked Questions
Intellectual property lies at the heart of the publishing industry. Book publishers are creators, acquirers, custodians and managers of intellectual property rights, with a responsibility to exploit such rights to the best advantage of themselves, authors and users and in the interests of cultural advancement and the flow of knowledge and information.
Copyright is so central to industry development that an integrated approach is required to issues such as policy, legislation, infringement and enforcement, national and regional development agendas, copyright in digital materials, the growth of a climate of respect for intellectual property, encouraging and sustaining creative production, and knowledge generation and distribution.
In the midst of these big-picture copyright issues, publishers are often confronted with specific and practical questions. The following are some of the questions on copyright most frequently asked of the Publishers' Association of South Africa.
What is copyright?
"the exclusive right in relation to work embodying intellectual content the product of the intellect to do or to authorise others to do certain acts in relation to that work acts [ which ] represent the manner in which that work can be exploited for personal gain or for profit. " (Owen Dean. 1989. Handbook of South African Copyright Law, Juta & Co Ltd.)
Very simply put, and in the context of publishing, copyright is the positive right of an author or publisher to exploit his or her creation in certain ways and, at the same time, the negative right to prevent others from doing so.
What is the difference between 'copyright' and 'intellectual property'?
Intellectual property is, as Owen Dean has said, the product of the intellect, or mind. Patents, trademarks, designs and copyright are the four forms of intellectual property (the first three are sometimes known as industrial property. Copyright, as we have said, includes the right to protect one's intellectual property from unauthorised usage.
Is there a statute governing copyright?
Yes, the Copyright Act 98 of 1978, as amended, governs copyright.
What kinds of works are eligible for copyright protection?
Literary (written), musical and artistic works; cinematograph films; sound recordings; broadcasts; programme-carrying signals; published editions and computer programs.
How long does copyright last?
In every book, journal, periodical or magazine there exist two separate but interlinked copyrights:
In the content, the literary work itself. Copyright in the work usually belongs to the author (unless he or she has assigned it to the publisher). In South Africa, the duration of copyright is the life of the author plus 50 years from the end of the year in which the author dies. When copyright expires, the work falls into the public domain, and may be freely used and exploited by anyone.
In the published edition or typographical arrangement on the page. Copyright in the published edition belongs to the publisher. Copyright in the published edition lasts for 50 years from date of publication. Thus, even when copyright in the literary work has expired, copyright in the published edition may still subsist.
How do I get copyright in my book?
In South Africa one does not register copyright (apart from cinematograph films). Copyright arises automatically, as you express your ideas on the page.
How can I protect my work?
Strictly speaking, you don't have to do anything, as your work is automatically protected. But if someone copied it, and you challenged them, you would have to prove in court that you are the owner of copyright.
If I tell someone my idea for a plot, and they subsequently write a book, how can I prove the idea was mine?
It is said that there is no copyright in ideas, partly because the law cannot protect something as ephemeral, and sometimes fleeting, as an idea. Once the idea has been written down, however, it enjoys copyright protection.
What are moral rights?
The author of a work has the right to claim authorship and to object to any distortion, mutilation or other modification of the work where such action is or would be prejudicial to his or her honour or reputation. This means that the author has the right to be identified as the author (right of paternity) and the right to object to any adaptation of the work which would reflect badly on him or her (the right of integrity).
What is plagiarism?
If someone passes off your work as his or her own (e.g. publishes it without acknowledgement) this is plagiarism.
What is copyright infringement?
Only the copyright owner may do, or authorise the doing, the following in respect of his or her work: reproduce it in any manner or form; publish it; perform it in public; broadcast it; transmit it in a diffusion service; or adapt it. Anyone who performs any of these actions without permission in respect of the work has infringed copyright.
How, then, might I get my work published, if only I am allowed to publish it?
By signing a contract with a publisher, you give him or her an exclusive licence to publish your work. An exclusive licence means that only the publisher with whom you have contracted may publish your work.
Am I allowed to photocopy part of a book for my own personal and private use?
Copyright is not infringed by any fair dealing with a literary work for the purposes of the personal or private use of the work by the person making the copy. What is 'fair' in any given situation will always depend on the circumstances of that situation.
Is it correct that as long as I photocopy 10% or less of a published work, this is permitted?
No, it's not correct. The Copyright Act says nothing about any percentage. 10% may be 'fair' but then again, it may not, since the test for fair dealing is qualitative as well as quantitative.
But surely I am allowed to make more than one copy if there is no commercial gain involved?
The regulations to the Act offer certain concessions for educational institutions and for non-profit libraries. These include a defined number of multiple copies strictly for classroom use or discussion, but exclude compilations.
I want my each of students to copy for themselves an article from a journal. Can I put a photocopy of the article on the reserve shelf in my educational institution's library for each student to copy under 'fair dealing'?
No. The copy on the reserve shelf is an infringing copy because it is not made for the private use or study of the person making it.
How about if I put the journal itself (not a photocopy) on the reserve shelf and tell my students to copy it for themselves?
Although each student may make a 'fair dealing' copy, 100 students each making a copy results in 100 copies, whereas fair dealing is intended to apply in the case of the single copy made by the person using the work.
What, then, must I do if I need to make multiple copies for my students in excess of what the law allows?
You may only legally make them under licence. A licence for reprographic reproduction (photocopying) of up to 10% or one chapter of a book, or one article from a serial publication, may be obtained from the Dramatic, Artistic and Literary Rights Organisation (DALRO) (Tel: 011 489 5000 or e-mail firstname.lastname@example.org ) or from the publisher of the work to be copied.
The photocopying of whole books by students as a substitute for buying them is not a licensable activity. DALRO only licences extracts for internal use and in instances where the book itself would not have been bought anyway.
May I download and print out an article from the Internet and photocopy it for my class of 20 students?
You may print out a copy for your personal or private use but you may not further reproduce it for students without permission from the rights' owner. Fair dealing applies in the digital as well as the analogue environment.
How about newspapers and magazines?
Newspapers and magazines usually administer their own reprographic reproduction rights. Your first stop should therefore be the publication itself.
If the book I want to copy from is out of print, surely I can go ahead?
No. 'Out of print' does not mean 'out of copyright'.
But if the book is out of print and unavailable, the publisher is not losing any sales by my copying his book.
It is wrong to imagine that publishers and authors exploit a work only when it is in print, or that sales are the only means of exploiting a work. Long after the book is out of print it may still generate revenues for its creators through the sale of, for example, translation rights, film rights and photocopying rights.
Since DALRO does not own copyright in the books and journals, how can it license the photocopying of them?
It is not necessary to own copyright in a work in order to license its reprographic reproduction. Copyright consists of a whole bundle of rights: the right to reproduce a work; to publish it; to publish it in a certain territory, or in a certain language; to adapt it (e.g. make a film script from a book or turn a long and complex novel into a easy reader for adults); to include it in an anthology of short stories and poems, and so on. In order to license a photocopy, a person or entity other than the copyright owner needs only to possess the right of reproduction.
How does DALRO get the right of reproduction?
It enters into agreements with authors and publishers whereby it is mandated to administer this right.
What steps can publishers take against, for example, a copyshop making unauthorised copies for students?
- A publisher who wishes to take action against unauthorised copying of a book should rely primarily on the copyright in the published edition.
- The infringement of the copyright in a literary work or a published edition can give rise to a civil law claim, and in most instances to a criminal offence, under the Copyright Act. In both instances the legal action can be instigated by the copyright owner or by an exclusive licensee. In civil proceedings an interdict restraining the unlawful conduct, damages, delivery up of infringing copies and various other forms of ancillary relief can be obtained. In the case of criminal copyright infringement the State can prosecute the offender and the court can impose a penalty of R3 000 or five years imprisonment, or both, for each infringing article, in the case of a first offence.
- If a book which is reproduced features a registered trade mark, for instance the publisher's trade mark the sale of an unauthorised copy can also constitute trade mark infringement under the Trade Marks Act.
- The Counterfeit Goods Act could render the making and sale of unauthorised copies of a book an act of dealing in counterfeit goods. The Counterfeit Goods Act gives wide ranging powers of search and seizure to inspectors (police officers, customs officials, and the inspectors appointed by the Department of Trade and Industry). The Counterfeit Goods Act has certain advantages over the Copyright Act the mere possession of counterfeit goods in the course of trade is a criminal offence, whereas under the Copyright Act in equivalent circumstances proving that the goods have been made and/or sold by the accused is necessary before an offence can take place.
- When a copyshop makes an unauthorised copy of a book, and assuming that the book features or bears the publisher's registered trade mark, that copyshop perpetrates one or more of the following unlawful acts:
- The infringement of the copyright in the literary work and the published edition - both a civil wrong and a criminal offence.
- The infringement of the publisher's registered trademark.
- An offence under the Counterfeit Goods Act.
- This will entitle the publisher to institute civil proceedings for copyright infringement and/or trademark infringement and to lay a criminal complaint of copyright infringement and/or dealing in counterfeit goods.
- Before any action is taken, the enforcement options should be discussed with a knowledgeable attorney.
Acknowledgement: Ms Monica Seeber & Dr Owen Dean