Commissioned works – with special reference to literary works

Posted on Sep 11, 2018

Commissioned works – with special reference to literary works

There is a common misconception concerning copyright works, namely, that the person who has commissioned the creation of a copyright work also owns the copyright in such a work.  This article will illustrate that, in the absence of an express contractual arrangement, it is only in a limited number of situations that the commissioner of a copyright work will also be the copyright owner of such a work.

Copyright protection is provided for by the Copyright Act 98 of 1978 (“the Act”).  The Act determines what types of works are protected, and, in the absence of any contractual arrangement, who the owner is of copyright in a work.  For example, copyright protection exists in original literary works (such as, novels, stories, poems, textbooks, biographies, essays and articles), artistic works (such as, paintings, sculptures, drawings, engravings and photographs), and musical works.

It is important to note that authorship (namely, who the author of a copyright work is) and ownership (namely, who owns the copyright) are distinct concepts in copyright law.  While it is possible for the author of a copyright work to also own the copyright, that is not necessarily the case.  In order to determine who owns the copyright in a work, it is necessary to first determine who the author of that work is.  The Act, in section 1, defines who the author of a particular kind of copyright work is, and “author” is, therefore, a technical concept.  In respect of some types of copyright work, such as, as computer program, the author of work may not correspond to the common meaning of that term.  However, in the case of literary works, it does: it is the person who first created the work.  It should be noted that it is possible for there to be more than one author of a copyright work, if each of such persons has made a non-trivial contribution to its creation and the contributions are not separable.

A copyright work, such as, a literary work, will have been created when it is reduced to a material expression.  For example, it must have been written down on paper or have been written on a computer.  There is an old adage in copyright law which underscores this requirement, namely, that copyright does not exist in ideas but only in particular material expressions of an idea. Thus, no person has copyright in a particular concept or genre of literary work.  Anyone is free to write a novel about the adventures of children who attend a school for magicians, or romance novels involving vampire boyfriends, provided that they have not appropriated any substantial part of another author’s story, plot, incidents or characterisation (names, traits or attributes). It should be apparent that copyright protection is not confined to the literal copying of a copyright work, as there may also be copying by way of non-literal copying.

As far as the ownership of copyright is concerned, the Act also regulates that issue in section 21.  Unless one of the exceptions provided for in section 21 apply, the author of a copyright work will also be the owner of the copyright in that work. In other words, the default position is that the author (or joint authors) of a copyright work will be the first owner (or co-owners) of the copyright in that work.  The exceptions, which will be described shortly, thus establish the distinction, or separation, between authorship and ownership, that is, when the default rule does not apply.

The first exception provided for is in respect of literary or artistic works made by an author as a consequence of his (or her) employment by the proprietor of a newspaper, magazine or similar periodical.  In this case, the copyright is split between the employer and the employee (author).  The employer is the owner of the copyright work in so far as the copyright relates to the relevant publication for which it was intended, but in all other respects the author is the owner of the copyright.

The second exception concerns specifiedcommissioned copyright works.  If someone has commissioned the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording, that person (namely, the commissioner) will be the copyright owner of the commissioned work.  Note that the exception will not apply to any other types of copyright work which may have been commissioned, such as, literary works or a computer program.  It does not even apply to commissioned paintings or drawings generally, but only to the painting or drawing of a portrait.  If the commissioner of another type of work wishes to own the copyright in the commissioned work, that can only be achieved by way of contract between the commissioner and the author provided for the transfer (assignment) of copyright in such work to the commissioner.

The third exception concerns copyright works created in the course of employment (other than in the context of a newspaper, magazine or similar periodical).  In these cases, the relevant employer will be owner of copyright in a copyright work created in the course of employment.  The exception is not limited to any types of copyright work.

Importantly, the application of the three exceptions to the default rule can be varied by contract between the relevant parties. It should also be noted that if a copyright work is made by or under the direction or control of the state or recognised international organisations, the copyright will be owned by the state or the relevant international organisation.

Thus, it should be clear from the aforementioned that if someone has been commissioned to, for example, translate a literary work, such as, a novel, the commissioner is not the owner of the copyright in the translation, unless the parties have contractually agreed that that would be the case by way of an assignment of the copyright to the commissioner.  For completeness, it should, however, be noted that the making of translation of a copyright work (for any reason other than the permitted exceptions provided for in the Act, such as, for personal use) requires the copyright owner’s permission as it will amount to making an adaptation of the literary work, which is one of the exclusive rights given to the copyright owner of a literary work.

Accordingly, beware of who actually owns the copyright in a work, it may not be the author, and generally would not be the commissioner of a copyright work.

Sadulla Karjiker

This article first appeared in Afrikaans as part of the PEN Afrikaans series on Litnet, available here.