Is your pitch protected?

Introduction

Copyright protection, in South Africa, grants the creator of specific works exclusive rights to perform certain acts in terms of the Copyright Act No, 98 of 1978 (“the Act”). Copyright arises automatically by creation of a work. There are finite categories of works which are eligible for protection in terms of the Act. These categories are as follows:

1. Literary works
2. Artistic Works
3. Computer Programs
4. Musical Works
5. Cinematograph Films
6. Sound Recordings
7. Broadcasts
8. Programme-carrying signals; and
9. Published Editions

Length of Protection

The works are granted different copyright protections according to their respective categories. Literary works, artistic works (other than photographs), and musical works have copyright protections granted for the creator’s life and for 50 years from the end of the year in which the author dies. Published editions are granted 50 years protection from the end of the year in which the edition was first published. Sound recordings are granted 50 years protection from the end of the year in which the broadcast first takes place. Computer programs, photographs, and cinematograph films are granted 50 years protection from the end of the year in which the work is lawfully available to the public or is first published whichever term is longer. If the computer programs, photographs, or cinematograph films are never made available to the public or published then the protection will be granted from the end of the year in which the work is made.  As advised above, if the proposal were to qualify as work in terms of the Act then it would likely fall into the category of literary work.

Types of Protection

Sections 6 to 11B of the Act details the types of protections afforded for works which fall within the ambit of the Act. For example, section 6 of the Act lists the following acts which vest exclusively to the copyright holder or to their duly authorized assignee for literary work.  

1. Reproducing the work in any manner or form;
2. Publishing the work;
3. Performing the work in public;
4. Broadcasting the work;
5. Causing the work to be transmitted in a diffusion service, unless such service transmits a lawful broadcast including the work, and is the original broadcast;
6. Make an adaptation of the work; and
7. Doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (e) (i.e., numbers 1 to 5 above).

For an infringement of your copyright to exist, one or more of the protected acts granted exclusively to a copyright holder or their duly authorized assignee must be committed by another party.

Infringement Test

The Act creates a dual test which has been applied by the courts to determine whether an infringement has occurred. There must be sufficient objective similarity between the copyrighted work and infringing work. This will require the two works to be objectively compared for differences and similarities. If the courts determine there is an existing work with objective similarities, then the infringing work must have a causal link with the copyrighted work (i.e., its creation was caused by the existence of the copyrighted work).  If both legs of the test are satisfied, then an infringement is likely to have occurred.

Conclusion

The first hurdle is whether the proposal amounts to work which would grant you exclusive rights in terms of the Act. As previously mentioned, ideas cannot be copyrighted. The idea must be reduced to material form for it to amount to work in terms of the Act. This is why we suggest that parties enter into confidentiality and/or non-disclosure and/or restraint agreements prior to pitching their ideas. These contractual obligations create the terms with which information is shared and expressly state the intention of the disclosing party to retain the rights of their idea. Furthermore, these contracts set the tone for the method by which an idea my be pitched and the intention behind the parties involved.

Should you need assistance in drafting the applicable agreement then definitely contact us at Legalese. Additionally, if you are unsure of the rights you and/or a dispute has arisen then we highly recommend contacting us to provide some clarity and assist in creating a strategy going forward. 

Christian Tabor-Raeside – 03 May 2021

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