Welcome!
I trust that this column will provide the reader with insight and practical guidelines to negotiate the sometimes perilous waters of the entertainment and media industry. Our first letter, from Howard Thomas, fields quite an interesting set of facts.
Question
<>Howard: I have been working for some years on a concept for a TV drama. I have detailed the whole story, and laid it out in précis and treatment format. I intend having it ready for the next time a broadcaster calls for unsolicited proposals. Yesterday, I was paging through a prominent local women’s consumer magazine, and there, to my horror, is a short story which bears an uncanny resemblance to my concept. Of course I have spoken about this concept – I have been researching it for two years, so lots of people know about it. It seems one person knows enough to pre-empt me like this. Can the law protect me?
Answer
Anton: Many people have come to accept that ideas and its brother, the “concept” (a connection or aggregate of ideas) is protected by the laws of intellectual property, and specifically the law of copyright.
However, this is just one of many legal urban legends that deserve busting. Strictly speaking, as far as copyright is concerned, it is not the idea or concept in itself that is protected, but the manner in which that idea or concept is expressed in a material format. For example, the concept of a TV drama in itself is not protected, but a specific TV drama, like “Isidingo”, would deserve protection in all of its constituent material elements (e.g. the screenplay, the characters, the set, etc).
Historically, the authors of certain creations have been granted a monopoly over their creations to enable them to properly exploit the rights thereto for a limited period, normally fifty years depending on the type of creation. After the protected period expires, the creation falls into the public domain, which means that anyone can make use of the creation without regard to the author or other rights holders.
The philosophy underlying this release into the public domain, is that progress can only take place effectively if people are allowed at some point in time to build and advance their ideas freely upon previous expressions (of ideas).
However, copyright law as it stands today endeavours to strike a balance between the right of the greater public to access and build on existing expressions and that of the author to exploit his or her own work.
Copyright in South Africa is regulated by the Copyright Act 98 of 1978 and by virtue of the Berne Convention, South African-based authors shall also receive the same protection in other countries that are also signatories of the Convention.
Briefly, in order for Howard to receive copyright protection for his work, the following requirements need to be met:
- (i) The work must be original, thus a product of Howard’s own labour and effort.
- (ii) The work must have been reduced to writing or some other material form.
- (iii) The author must at the time of the work’s creation have been working or living in a Berne Convention country.
If the short story in the magazine resembles Howard’s works closely enough, then it can be accepted that it infringed upon Howard’s copyright in his works. How close the article resembles the précis and treatment will be a question of fact to be answered by the court.
Advocate Anton Alberts runs a certificate course in Entertainment Law at the University of Johannesburg. This is the only course of its kind in South Africa. Courses are run in Johannesburg and Cape Town twice annually. For more information, contact Adv Alberts at : [email protected] or Ms Corrie Hasse at UJ on 011 489-2889; [email protected].