Perhaps we should start off by breaking down what copyright is. This will help to do away with any misconceptions that have been held to its definition.
Copyright is exactly what it says it is. It is the exclusive right of creators of artistic, literary and scientific works over their creations. The rights to reproduce, make adaptations, rearrange, distribute, perform and publicly communicate their works exclusively without the interference of any third parties.
It is also the right vested on the creators to cede or assign part or whole of these exclusive rights to whoever they desire at any time. The rationale behind the granting of this protection to creators of the mentioned works is basically to reward them for their independent efforts when producing these works – sweat of the brow.
It is to, as John Locke puts it, “compensate every man for his labor” because if “anyone has created something, they should be able to get something in return for it”.
By preventing copycats from freely riding over these works, copyright protection seeks also to create an environment that will encourage further creation and improvement of these works.
To give a monopoly to creators to be able to use their works in whichever way they may desire in pursuit of maximizing their wealth. These are the basic justifications of this phenomenon.
What is copyrightable? Who owns copyright?
What are the requirements? What is an original creation? Can I copyright my ideas? These are frequently asked questions that I suppose we need to also address in this piece.
Copyright being a creature of law, the law defines what is copyrightable and what isn’t. An international agreement of which Lesotho and South Africa are party to and 173 other countries is the Berne Convention for the Protection of Literary and Artistic Works (1886).
This agreement stipulates that “every production in the literary, scientific and artistic domain, whatever the mode or form of its expression” (Article 2(1) of the Convention) should be protected and section 2 of Copyright Order No. 13 of 1989 of Lesotho sets off the same categories in the agreement as works eligible for copyright.
South African Copyright Act 98 of 1978 section 2 also adheres to the same categories. The person(s) who shall own copyright according to these laws and the convention shall be the author or authors who created the work. That explanation should clear all uncertainties regarding copyright ownership.
Being in possession of an artistic or literary work (book or Compact Disk of your favorite musician) does not render one the copyright owner of such a work, they simply own the tangible property while all right to reproduce, copy, distribute and broadcast belong to the author of that book or compact disk. As a person who bought the copyrighted work, your rights to are limited to personal usage.
What are the requirements for protection?
Creators need to cease from being frustrated by their concern of registering their creative works. The convention and the legislation provide for copyright an automatic protection. This means no registration is needed in any way whatsoever, as long the work artistic, literary, or scientific and is a fixed original expression.
Originality in copyright as is a common misconception does not necessarily mean newness. It means the works or expression should be as result of the independent skill, judgement and effort of the author.
For instance, it could be a drawing of a human face, the world is full of human face drawing depictions everywhere, but in order for it to be called original, it should not be a copy of existing human face drawings, and the drawing should be seen as a product of the creator’s independent judgement and skill.
This is what originality entails and a creator while trying to establish whether or not their work is eligible for protection, they should ask themselves the question of whether they have clearly engaged an independent skill, judgement and effort into creating that artistic, literary or scientific work.
Fixed means the work should be in a material form and in breaking this down the question of protection of ideas also surfaces. The law requires that in order for works to be eligible for copyright, they should be expressed in a material form. The material expression need not be enticing, or commercially valuable, as long as it is original copyright will subsist.
Having had an idea of producing a charts topping hit trap single titled “coogie sweater”, with 808s, drums and synthesizers hard hitting rhythmically through the speakers, or a best-selling book on a particular fictional concept, or a movie on a certain storyline, or a computer program that does so and so, is not enough to attract copyright protection.
The author is actually required to express those ideas in a material form. Have that song, choreographic work, film, book, poem, photograph, leather craft, sculpture, clothing line, instrumental all documented in order to attract copyright protection.
A lot of criticisms have been made regarding this standing by the copyright law of refusal to protect ideas, but I maintain that it is more advantageous not to do so. Ideas are not measurable, it will cause a problem on the test of originality – independent skill, effort and judgement, ought to be applied to them.
Two people may have the same idea, but the degree of their difference will be notable upon their expression. Not protecting ideas is also a way of encouraging creativity and innovation in society which will eventually lead to a better standard of living among the people.
Imagine if the idea of a clothing was protected, and the first person to have conceptualized it was granted the exclusive right to the production of clothes – pants, shirts, jackets etc, what would society be like? Many more examples can be made in this regard.
Copyright protection does not vest in any other creation except categories of works mentioned above. The legislation breaks down the scope of each category, for instance, artistic works include, irrespective of quality thereof, paintings, sculptures, drawing, engravings, photographs, works of craftsmanship and few others.
It is important to note that as much as there are general principles regarding intellectual property and copyright, laws regulating these works may differ from jurisdiction to jurisdiction. For instance, the duration of protection, scope of protected works, administration of these rights in different works, royalties, so and so forth.
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.