How to protect fruit of your creativity

How many of us understand the Copyright Act and know how to use it to protect one's work? How many millions of rands are lost yearly to piracy?

Why is this realm still fraught with misunderstanding and piracy despite the Copyright Act having been in existence since 1979 to protect one's intellectual property?

For those working in the creative world, the concern of having one's work copied without gaining any benefit or acknowledgement is very real. To those who may not know, the Copyright Act does not require any registration to protect one's rights, unlike other intellectual property acts.

Neither is it dependent on the literary quality, mode or form in which the work exists.

In fact, a registration procedure is only necessary for films, according to Bridgett Majola, an associate at Shepstone & Wylie.

Anything from literature to stage direction, scriptwriting, advertising, sermons, computer programmes, works of art, works of architecture, technical and engineering drawings, music, radio and television broadcasts are protected.

But know that the Act does not protect ideas unless they are on paper or in a tangible form, and this, according to Majola, is where confusion can creep in.

Last year the Cape Provincial Division, in the case of Peter-Ross vs Ramesar and another, confirmed that "though there is no copyright in ideas, a literary work is most often a vehicle for ideas. Once ideas have been captured in words on paper, the ideas are an important part of the literary work".

In this case, Peter-Ross and Ramesar had worked together on a draft of an article. However, when the final article was submitted for publication in an industry journal, Peter-Ross cited herself as the sole author of the article. Ramesar objected to the article's publication because he believed the article embodied work done jointly by him and Peter-Ross.

The court ruled that the article unlawfully infringed Ramesar's joint copyright in the draft.

Majola says you can take simple steps to protect your work by marking it with the symbol C or the words "all rights reserved" followed by the name of the owner of the copyright. One can also use the international copyright symbol © followed by the name of the author and the year in which the copyright came into being.

There are some copyright exceptions, unless one negotiates a contract that states differently, says Majola. If the work has been commissioned and paid for or if the work was done during the course of employment or under a contract, then the ownership of copyright is transferred to the employer or the person who paid for the work.

In the case of a computer programme, the author and owner of the copyright is "the person who exercised control over the making of the programme".

Copyright generally lasts for 50 years. For literary, musical and artistic works (excluding photographs) this is from the end of the year in which the author dies. For computer programmes, the period is from the year in which legitimate copies were first made public. For published films, including, among others, music, radio and television broadcasts, the period starts from the end of the year in which the work was first published. Should a copyright be infringed, one may apply for an interdict preventing the unauthorised person from using the work, and one may also claim damages for this infringement.

This claim cannot have an unlimited price, as many believe. It must be market-related and the court will assess the value.

"It is not an infringement of copyright if the work is used for private study, criticism, review, reporting of current events or for teaching, provided it is properly referenced. Nor is it an infringement to reproduce a public lecture, address or similar work for information purposes," she says.