In examining some of the provisions of the Copyright Act 98 of 1978 (“the Act”) insofar as they relate to written works, were addressing those who’s stock in trade is the written word. While it is unlikely that this column will effect an increase in the much lamented rates paid to writers, it is hoped that it will encourage a more thorough understanding of this area of law and perhaps better equip writers in negotiations relating to the exploitation of their work.
The Act refers to written works as literary works, which reference you may be relieved or concerned to know bears no relation to the literary quality of a particular work, but covers any combination of letters and/or numbers which embody the results of some intellectual effort or skill. What many do not realise is that copyright is not a single right, but actually consists of the sole and exclusive right to do a number of different things in relation to a work. Copyright in the case of a literary work consists of the exclusive right to do the following:- reproduce the work in any manner or form;-publish the work;-broadcast the work;-cause the work to be transmitted in a diffusion service;-make an adaptation of the work, which would include translating the work.
When reference is made to the copyright in a work, what is actually being referred to is the right to perform the activities that are listed. Creators of literary works trade with these rights either by disposing of them (individually or as a bundle) or by agreeing to allow an interested party to exercise some or all of them.
The disposal of the rights of copyright is referred to as an assignment. The effect of an assignment is that the owner of copyright no longer owns any of the rights, and the rights become the property of the party to whom they have been assigned. After an assignment, the copyright owner no longer has a claim to any of the rights which have been assigned and is not entitled to perform any of the acts covered by the rights of copyright.
Today, assignments are the exception rather than the norm. The favoured mechanism for dealing with copyright is by apportioning the various rights constituting copyright and then licensing them to interested parties. The important distinction between a licence and an assignment is that in an assignment rights are given away, whereas in the case of a licence the owner retains ownership over the rights concerned even though he/she may have agreed not to exercise the rights during the term of the licence.
The bundle of rights comprising copyright in a written work can be apportioned in many different ways. They can be apportioned according to the way in which the work will be dealt with, the geographical area in which it will be exploited, the duration of exploitation, or even a combination of all of the above. In the case of a magazine article like this one, for example, the owner of copyright can licence to one party the right to publish the article in a specific publication in South Africa, to another the right to publish the article in book form as part of a collection of media articles, and to other parties the rights to translate the work.
So, in order to maximise the potential income from the exploitation of a work, it is often in the best interests of the copyright owner to strategically limit the scope of rights granted whether that limitation is based on the way in which the work may be used, the area in which it may be used, or the period of time for which it may be used.