COPYRIGHT #4 from Louis-The-Lawyer: (1) Transfer (Include Moral Right), (2) Licence & (3) Ideas

Copyright can be transferred by the author to third parties. Such transfer is embodied in a written, signed cession and assignment agreement (‘Deed of Assignment’) and can also be reflected in a testamentary disposition (Section 23 of the Act).

The parameters of such an assignment e.g. to a publisher is circumscribed in such a Deed of Assignment and can include for example whether it is of a temporary or permanent nature and the country or geographical area.

The assignor must warrant the originality of the work and it must reflect an unequivocal intention of the assignor to transfer and the assignee to acquire the copyright.     

Despite such assignment, the issue of the moral rights of the author have to be borne in mind. It means that the author retains the right to claim the authorship and that gives the author the right to object to any distortion or modification of the work if such action may be prejudicial to the honour or reputation to the author (Section 20 of the Act). Exclusions in this regard is with respect to cinematograph film, television broadcast or a computer program – in these cases the licensor is allowed to make modifications that are required on technical grounds or for the purposes of commercial exploitation of the work. However the author can waive this moral right.    

Copyright can also be licensed to a licensee for royalties. It is important to note that as with assignment, a license can be exclusive which will preclude anyone else, including the author from using the work. Such license agreement must meet the same requirements discussed for assignment above e.g. must be in writing and signed by the licensor. It can also be non-exclusive in which event the owner can continue exploiting the work and may grant more than one license.
 

A question that is often asked is ‘Is there copyright in an idea’? You may recall the following from my 1st insert: Copyright protection is automatic the minute that an original creative work takes a tangible form – this means that until you have reduced your idea to a ‘tangible form’ it enjoys no copyright, not to forget that it must be original and reflect a degree of creativity. The next related question is what is meant by ‘tangible form’?

It means one or more of the following:    

•    written down, recorded, painted or designed 
•    graphic form, on a computer disk or other medium, or otherwise stored in or available through electronic or other form
•    a physical or tangible product that does exist: recorded, filmed or captured electronically.

More about photography and material sourced from the internet in the next insert.

Aspects of the above is with acknowledgement of the following:
https://study.com/academy/lesson/what-are-copyright-laws-definition-lesson-quiz.html - D M kisch/Kisch Inc/https:/insider.com/dictionary/tangible-form; https://www.lexology.com/library/detail

© ADV LOUIS NEL

LOUIS-THE-LAWYER

JUNE 27 2024

DISCLAIMER - Each case depends on its own facts & merits - the above does not constitute advice - independent advice should be obtained in all instances

LOUIS’ LEGAL ADVICE CLUB (‘LAC’) – obtaining legal advice & guidance can be quite costly (See below*) hence my LAC via which you can obtain an hour’s legal advice for R750, 00 per month once you’ve joined AND the fee for additional hours is

R1850 per hour! Furthermore you are dealing with a lawyer who has been in tourism since 1982!  

      
* The AVERAGE hourly rate is R2700 - https://www.myggsa.co.za/how-much-do-lawyers-charge-per-hour-in-south-africa/