As the fire for creativity and innovation in Lesotho continues to grow, the question of rights and their ownership is one that is often asked by many.
Creators of innovative and creative work would like to know the extent to which they have privilege and monopoly on the control and usage of their works. They would like to know of the legal implications of having jointly created works.
They ask, “What happens to copyright in works created in the course of employment by our employers? Who owns the rights in works of a joint effort? Do consumers of our creative work have a share in our copyright ownership? What is the difference between an author of a work and an owner of copyright?”
These grey areas have become a concern in the emerging creative industry today and this article shall serve to shed some light thereof.
What is a work?
A work is anything that is copyrightable. As you may have learned from the previous article, anything expressed in a material form, and is a result of independent skill, judgement and effort is a copyrightable work.
A work is anything that falls within the ambit of literary, artistic and scientific works as described by the copyright law and it is important to put weight on this point , the knowledge of which will result in creatives knowing whether or not they have legal protection over their creations.
Who is an Author?
Under the copyright law of Lesotho, an author is a creator of a work. This is the person who conceptualizes an idea and brings it to life. It is more than just the master mind; it is the actual potter of the clay pots, the actual sculptor moulding with his hands, the actual composer of that hit single, and the actual camera operator whose finger hits the shutter button. So on and so forth, in exactly that particular trend.
The person(s) who uses their independent skill, judgement and effort in order to materialize their mental activity; these are the authors. With regard to the enquiry of how many authors there can be in a work, there is absolutely no limit.
If two or more people contribute to creating a work, they are referred to under copyright law as joint authors and the determining factor in that regard is the element of their substantial contribution.
Two or more people will be called co-authors or joint authors if there is proof that they have together contributed substantially to the making of the work.
Be that as it may, it is important not to overlook the crucial fact that copyright is a creature of statute. Therefore some of the principles may differ from country to country. For example, Authorship in the South Africa Copyright Act 1978 does not not only mean a person who carry out the actual creation of the work. With regard to computer programs, it defines an author as someone who excercised control over the making of the program. With regard to sound recordings and cinematographic work, an author means the whom the arrangements for the creation of those works was made.
Who is an owner?
An owner of copyright is a person who has the right over the copyright in the work. The copyright law provides that the right of ownership shall be in the first instance owned by the author or authors who created a work.
In situations where work has been jointly created, the co-authors shall also be co-owners of the said work. Ownership can therefore be explained as a legal right over the intangible value of the creation.
In instances where the actual creator of the work is unknown, the law provides a solution by stipulating that unless there is proof to the contrary, the owner of the work will be the one whose name has been revealed as the author.
There are a few other ways in which a person can become an owner of copyright even though they have not created the work, those include, acquisition by way of inheritance. Rights of the author in his copyrighted work can be inherited by his beneficiaries upon his death.
There is also by way of assignment, which is the transfer of ownership by the owner to a non-owner by means of a written/ verbal agreement. The copyright Act of Lesotho requires that assignment of these rights should be made by way of writing stamped with signatures both parties (assignor and assignee). Right of ownership may be assigned partly or in totality, and this will be determined by the agreement between the parties.
There is a misconception that having bought a copyrighted work gives the consumer a right to utilize the work in any way they desire. That is absolutely not true. The consumer only has physical property right over the tangible piece of work they are in possession of, not the actual intellectual property right over the work.
This means the rights of the consumer go as far as his personal usage of the work, and limited utilization of the physical copy. The owner on the other hand continues to have legal control over the right to copy, reproduce, communicate, distribute and rearrange the work.
There are exceptions of course to these rights of the owner. Wherein the third party can reproduce, communicate and or even distribute the work without the permission of the owner. These are instances such as private usage, educational purposes, news reporting, parody, review and or criticism. All this is called fair dealing, and the particulars of every usage will be determined by the kind of work involved therein.
Producing copyrighted works in the workplace
The copyright law provides that where a work is produced by person in the course of fulfillment of his duties under a contract of employment, unless otherwise stipulated to the contrary, the rights of ownership over that work shall be deemed to have been assigned to the employer. The employee remains the author of the work.
Authorship is a non transferable right of a creator of a copyright right. It is directly linked to their persona. Even if they may not own the Copyright in the work, authorship will forever be theirs.
Adv. Leisa Leisanyane
Business and Entertainment lawyer. LLM in Intellectual Property law candidate at Stellenbosch University. Co-founder of Leinn Inc. Legal advisor of Lesotho Music Rights Association and legal counsel for Junior Chamber of Commerce Lesotho.