Whilst it is a logical assumption that the author of a work eligible for copyright protection is also the owner, this is not always the case. Only the copyright owner has locus standi if a work in which copyright vests become the subject of an infringement action.
The author is defined by the Copyright Act 98 of 1978 as follows:
- for literary, musical or artistic works, the person who first makes or creates the work;
- for photographs, the person who is responsible for the composition of the photograph;
- for sound recordings and cinematograph films, the person by whom the arrangements for making the sound recording or cinematograph film is made;
- for broadcast, the first broadcaster;
- for published editions, the publisher of the edition;
- for literary, dramatic, musical or artistic work or computer programs which are computer generated, the person by whom the arrangements necessary for the creation of the work were made; and
- for computer programs, the person who exercised control over the making of the computer program.
It is therefore only the author of a literary, musical or artistic work, who is also automatically becomes the owner of the work. In all other categories of works, a person other than the creator of the work is considered to be the author.
The first rule of copyright is that the author is also the first owner, but this is not always the case.
Where employees of a newspaper, magazine or similar periodical creates a literary or artistic work, which work is intended for publication in the newspaper, magazine or periodical, the newspaper, magazine or periodical is the owner of the work. However, in all other aspects, the employee, who is the author, remains the owner of the copyright. For instance, he or she may decide to publish a book containing the articles and/or photos he or she has created during his or her career.
In the commissioning of a photograph, the painting or drawing of a portrait, the making of a gravure, cinematograph film or sound recording, which is paid for by the person commissioning the work, the ownership of that work resides in the person commissioning the work.
Lastly, the ownership in a work created by an employee in the course and scope of his employment and acting under a contract of service, belongs to the employer.
For managing copyrighted works and to ensure that ownership of copyrighted works vests in the commissioning party, so that the commissioning party has locus standi in future infringement matters, it is important to ensure that the proper non-circumvention, confidentiality, and restraint agreements are in place with both employees and (particularly) third-party contractors.
Should you have a copyright ownership query, please contact us.