Friday, 19 September 2014

Copyright in South Africa

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Copyright in South Africa
by David Alexander – Sheer Publishing

“People of Orphalese, you can muffle the drum, and you can loosen the strings of the lyre, but who shall command the skylark not to sing?”
The Prophet, Kahlil Gibran

How do I copyright my music and lyrics?

Copyright law secures for the creator of a creative effort the exclusive right to control who can make copies, or make works derived from the original work. There are a lot of subtleties and international variations but that’s the gist of it. If you create something, and it fits the definition of a creative work, you get to control who can make copies of it and how they make copies.

Contrary to popular misconception there is no great mystery on how to copyright your original music and lyrics. According to the SA Copyright law as soon as you affix your music and lyrics in a tangible medium it is afforded copyright protection. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph discs (“phonorecords”), or both.”

What is not protected by copyright?

Ideas for compositions are not protected, nor are styles of performing or new ways of generating sounds. A composition that exists only in the composer’s head is not eligible for copyright protection. Similarly, the content of an improvisational jazz performance is not covered unless it has been recorded.

Generally the title of a composition, song, book, or other writing lacks sufficient literary content to be copyrighted. However, other statutes could be violated should one creative entity be passed off as another, or if income is lost as the result of confusion between identical titles.

What is a tangible medium?

Any real thing used to capture and store a suitable representation of the music and lyrics such as a recordings on a cassette, chords, melody, and lyrics written on paper, etc.

Do I need to include the copyright symbol?

No you do not need to include the copyright symbol but it is always a good idea to do so. The correct format is:

© 2001 David Alexander, Sheer Publishing

The circled “c” and the word copyright are interchangeable

What are my precise rights when I copyright music and lyrics?

The owner of the copyright is the author of the original work. The owner has, the exclusive rights to do and to authorise any of the following:

  • To reproduce the copyrighted work in copies;
  • To prepare derivative works based upon the copyrighted work;
    T to distribute copies to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the copyrighted work publicly; and
  • To display the copyrighted work publicly.

These five rights are exclusive. These rights can be enforced at the owner’s discretion and at any time. It is illegal for anyone to violate any of the rights provided to the owner of the copyright.

In its simplest form making copies is making copies. Computers have added some recent complications, like the temporary copies in packet buffers or on screens, and copies left on backup tape. But you can go pretty far by assuming that just about any computerized operation on a work involves copying it.

Who is the copyright owner or author?

The person who creates, owns. This clever phrase simplifies the entire copyright law. One exception to this rule is the “work for hire”. A work that is prepared “by an employee within the scope of his or her employment” is considered a work made for hire. The copyright ownership belongs to the employer. Put simply, an employee automatically forfeits copyright ownership. A freelance, independent contractor automatically retains copyright ownership. Both situations can be reversed through a signed, written agreement.

Are there any exceptions to my copyright?

“The fair use of copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use. . . is a fair use, the factors to be considered include:

  • The purposes and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.”

How long does my copyright last?

Copyright in a work subsists from its creation and endures for the life of the author and fifty years after the author’s death.

If I collaborate with one or more writers, how is the term of copyright measured?

As long as you and your collaborators do not work for hire, the 50-year period is measured from the date of the death of the last surviving collaborator.

Do I need to register my copyright?

Registration of a copyrighted work is not mandatory. A common misconception is that a work is not copyrighted until it is registered. This is wrong! The work is copyrighted the moment it is fixed in a tangible medium. Another misconception is that by registering the work, you prove authorship. This is also quite misleading. Registration allows the author to “stake a claim” to the work in question.

What about the poor man’s copyright where you mail yourself a cassette via registered mail?

Since you are given copyright protection the instant you record your song on the cassette, there is absolutely no need to mail a copy by registered mail. The poor man’s copyright is simply this: create a record of your song. Write it down (chords, melody, and lyric) or record it in some form (tape, digital computer file, et al.).

That is all you really must do! However, evidence is evidence and this step may help your case. You would be much better off, though, to give your tape to a lawyer to hold for you along with a dated notarised affidavit.

What are the advantages if I register my copyright?

Registration establishes a public record of the copyright claim.
Registration is ordinarily necessary before any infringement suits may be filed in court.
If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate; and
If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.”

What about sampling?

Sampling is the use of portions of prior recordings, which are incorporated into a new composition. Sampling has become an integral part of many genres of music today. When you sample someone’s song without permission, it is an instant copyright violation. It is the unauthorized use of copyrighted material owned by another. Sampling without permission violates two copyrights-the sound recording copyright (usually owned by the record company) and the copyright in the song itself (usually owned by the songwriter or the publishing company).

If you want to use a sample legally, you must obtain permission from the copyright owner. The copyright owner is usually a publishing company or record label. Remember that you must obtain permission from both the owner of the sound recording and the copyright owner of the underlying musical work. The fee for a license to use a sample can vary tremendously. The fee will depend on how much of the sample you intend to use (a quarter second is a minor use; five seconds, a major use), the music you intend to sample (a Madonna chorus will cost more than an obscure drum beat), and the intended use of the sample in your song (it is more costly to build your entire song around the sample than to give it only minor attention).

MIO would like to thank David for writing this article for us. His contact details are below.

David Alexander
Sheer Publishing
Tel: (011) 448 – 1133
Fax: (011) 444 – 2275
publishing@sheer.co.za

Author: guest