August 04 2008
In South Africa, commissioned authors of photographs have begun to find their work being syndicated internationally by the South African copyright owner without any further compensation and – perhaps even more crucially – without their permission. Some have taken the view that the international rights to the works, which are governed by the Berne Convention, belong to them as the authors of the works, even though the local copyright in South Africa unquestionably belongs to the person that commissioned the work.
The Copyright Act (98/1978, as amended) governs the rights of an owner of a photograph in South Africa. The act affords the owner of the copyright in a photograph the exclusive rights to, or to authorize others to, reproduce or publish the work. Therefore, the act affords the owner the right to exploit, or at least reap, the economic benefits of such ownership. Thus, the direct link between ownership in the copyright and the economic benefit becomes evident.
It is important to distinguish between 'authorship' of the photograph (which is the term used in the Berne Convention) and 'ownership' of the copyright in that photograph. Generally, authorship and ownership are co-extensive and the section in the act which deals generally with ownership, Section 21, commences with the general statement that ownership vests in the author. The section contains a number of exceptions to that general statement and sets out a number of cases where the original ownership does not vest in the author.
One of these exceptions is where a photograph is commissioned. Section 21(1)(c) of the act provides that:
“[W[here a person commissions the taking of a photograph…and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, such person shall, subject to the provisions of paragraph (b), be the owner of the copyright subsisting therein.”
Thus, the person who instructs the author to create the photograph owns the copyright in that photograph, but is not the author of it. In the local South African context the owner has the exclusive rights to control and benefit from the publication and reproduction of the photograph and to reap the financial and economic benefits of the photograph without having to pay any further compensation, beyond whatever the commission consideration was, to the author of the work. It is also questionable whether the author even has the moral right to his or her work because Section 20, which deals with moral rights, specifies that the moral right remains with the author where the work is assigned, but is silent on the position where the ownership did not vest in the author at the outset.
Section 21(1)(e) of the act permits the commissioned photographer to negotiate his or her way out of the default terms created by Section 21(1)(c), but this can occur only if the commissioner is in agreement, which will rarely be the case – especially given that the person commissioning the work is typically financially dominant and the photographer is typically an individually of weaker economic capacity. As a result, photographers who want to work are effectively obliged to waive all rights to the work in South Africa.
Outside South Africa, the international agreements and conventions to which South Africa is a signatory will apply, namely the Berne Convention and the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).
According to Article 9(1) of the Berne Convention,“[a]uthors of literary and artistic works protected by this convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form”.
Article 9(2) goes on to state that:
“It shall be a matter for legislation in the countries of the union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”
Furthermore, according to Part 2, Section 1 of TRIPs, “[m]embers shall comply with Articles 1 through 21 of the Berne Convention and the appendix thereto”. There appears to be no special provision in these treaties which confer any rights on an 'owner' as distinct from an 'author'.
Therefore, it would seem to follow that despite the local position, the international position is that the author is protected by the copyright laws of the signatory countries and any use of a photograph outside South Africa by the local owner who is not an author, and does not derive his or her right from an assignment by the author, amounts to infringement.
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