Intellectual Property
Intellectual property is the term used to describe the products of the mind which embrace all forms of creative expression and technological innovation. Most countries protect intellectual property with laws of copyright, patents, trademarks, and designs.
Copyright Protection
Assignment refers to when a copyright holder, for the duration of the copyright or for a specific period or area, transfers some or all their rights to a work, to a third-party. The copyright in question is then the property of the third-party, and the original copyright holder can no longer exercise the rights which have been assigned in relation to the work, as per agreement.
In South Africa one does not register copyright. Copyright arises automatically when a work meets certain requirements, which include originality and the work being in material form.
It is always encouraged that you save drafts with a date and time stamp of the creation while it is still in progress, for example, so that its development is clear. Once the work is completed, you can:
- Deposit it with a lawyer;
- Place it in a safety deposit box with a time and date stamp;
- Sign a mandate with DALRO, if you fulfil the criteria, so that your work is uploaded to our licensing system.
It is also advisable that you enter into a non-disclosure agreement which describes your work before having discussions about your work, including pitching it to a prospective producer.
DALRO
DALRO is a multi-purpose copyright society established in 1967 which administers (or licenses) various aspects of copyright on behalf of writers, artists and publishers- copyright holders. We provide the link between the copyright holders and the licensees who use their works.
Our main areas of administration are reprographic reproduction rights (from published editions), public performance rights (including stage rights for musicals and plays) and reproduction rights (granted for both publishing and copying) in works of visual art.
You become a mandating copyright holder by signing a contract with DALRO, which allows DALRO to administer the copyright in your works on your behalf. Administering means DALRO acts as an agent for the copyright holder and gives licenses to copyright users to use the mandated works, collects royalties from copyright users and distributes royalties to copyright holders. DALRO does not charge a sign-up or subscription fee even after it has signed a mandate with a copyright holder.
You become a licensed copyright user by applying for either a blanket or transactional license to use the work of a copyright holder and by paying the required fee. In the case of a blanket license, you are also required to sign a contract with DALRO which states the terms and conditions of use for DALRO’s repertoire and in the case of a transactional license, you will receive the license which sets out the terms of usage.
DALRO administers published works for reproduction by third parties, so copyright holders can approach DALRO any time after the work is published and after they become a copyright holder. Copyright holders can choose to give DALRO a general mandate covering all their works.
In the case of a copyright user, it is important to engage DALRO before using a copyright holder’s work.
Yes, each copyright holder must mandate DALRO separately, even those who are members of a rightsholder association.
Yes, DALRO is a different business to the above and helps you protect rights originating from your works in a different way than the above mentioned persons.
Copyright Usage
Licensing fees differ depending on the work and type of reproduction. Please contact DALRO to discuss your needs.
A blanket license gives the copyright user permission to use works in DALRO’s repertoire in accordance with the terms of the licensing agreement. This means a copyright user does not need to apply before using a work and is therefore less administratively intense than a transactional license. It ensures that copyright users do not fall foul of copyright law (provided they use within the bound of the licensing agreement). This is ideal for institutions with many people and/or where reproduction is a regular part of their activities.
A transactional license gives the copyright user permission to use work on a work-by-work or single-use basis (in accordance with the terms of the license) and does not cover the entire repertoire of a CMO.
Not necessarily, this depends on usage. Blanket licensing is ideal for rapid or bulk copyright users, while transactional licensing is ideal for one-time or infrequent copyright users.
Any form of reproduction (whether digital or non-digital) requires authorisation.
It is easy to assume that because works are available on an online platform, that they’re in the public domain and free to use. However, this is not correct. The fact that works are freely available on the internet does not mean that those works aren’t protected by copyright.
Using somebody else’s work requires permission unless the use falls within the exceptions.
Yes, it’s better to get permission late and retrospectively license your usage, than no permission at all. This will also help remove some of the associated risks that come with copyright infringements.
It is understandable that trying to identify and contact copyright holders can be an onerous process. It often takes a lot of research. For any reproduction request, make DALRO or your local CMO your first port of call.
However, it is important to use your best efforts and exhaust all channels of attempting to contact the copyright holder, and be able to prove that you have, before making the choice to reproduce a copyright protected work without permission. The onus will be on you to prove that you have tried to license your usage. This will be assessed on a case-by-case basis.
It would also be prudent to have a disclaimer stating that you’ve made all efforts to contact the copyright holder and should anyone have information on the rights holder to please contact you at a specific contact number and email address for you to retrospectively license your usage.
In South Africa, the general rule is that copyright subsists in a work for the duration of the lifetime of the creator and for 50 years after they’ve died. If your usage falls within that time, you will need a license.
It is important to note that certain works, which might seem to be obviously in the public domain (like ancient Greek plays) might still be copyright protected if the specific translation or adaptation is still within the copyright period. Therefore, it is best to contact DALRO for guidance before using any work.
The quantity of the work is not a determining factor. The Copyright Act does not specify the quantity that can be reproduced. The test for fair dealing is qualitative as well as quantitative. Fair dealing is based on:
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of the portion used in relation to the whole
- the effect of the use on the potential market for the work
Multiple copies are not fair dealing because they deprive the copyright holder of income and are therefore not fair. It is best to contact DALRO to find out if your usage needs to be licensed.
No, the license has clear stipulations around how the work is to be used. You will need to request permission before you use the work for any other reason.
No, buying a work does not give you the right to reproduce it. This right still belongs to the creator of the work. You will need to apply for a license to reproduce the work.
For example, if you bought a script, you still need a license to perform it; if you bought a painting you will still need a license to copy it or use the image in a pamphlet; and if you bought a newspaper you still need permission to copy and distribute an article in the newspaper.
Contact DALRO. DALRO has mandating agreements with local and international writers, agents, publishers and a number of representation agreements with foreign CMOs. This gives copyright users access to a vast repertoire of works.
Contact DALRO with the details of the works and permission required and, where possible, DALRO will assist.
Infringement
The unauthorised use of a copyright holder’s work.
The common ways in which copyright user infringe copyright include:
- Making multiple copies of newspaper clipping, an article or an extract and disseminating them without permission;
- Including artistic works in magazines, postcards or articles without permission;
- Sharing digital content (including e-books) without permission;
- Downloading and storing electronic copies of articles without permission;
- Copying textbooks without permission;
- Performing plays and musicals without permission;
- Creating artistic works and passing them off as those belonging to DALRO copyright holders.
In relation to retrospective licensing and royalty collection:
- if you are not a DALRO member, join up and give us details of the infringement and we’ll get in touch with them;
- if you are a DALRO member, give us details of the infringement, and we’ll get in touch with them and license them. If you do not want to give permission for a retrospective licensing, we may be able to assist you to stop the infringement.
The above does not take away from the copyright holder’s right to take criminal and/or civil action against the infringing party.
The infringing-user can be charged with a criminal offence and/or be held liable civilly, and be ordered to pay damages to the copyright holder. Infringement is also damaging reputationally.