By Dr. Wim Alberts
There is often uncertainty about copyright subsisting in literary works. In general, copyright legislation requires a particular work to be original, and to exist in a material form. Insofar as originality is concerned, it is usually said that the particular work should not necessarily be innovative, but it should be based on the authorís own efforts. It should thus not be based on other works. It is however possible for a work to be based to an extent on a previous work without necessarily excluding protection. In terms of the Copyright Act a literary work can include a number of items including novels and poetry, treatises, essays, articles as well as letters, reports and memoranda. Lectures, speeches and sermons can also qualify for protection. The courts have applied these definitions in a number of instances. In one decision it was held that an invoice form used by medical practitioners qualified for protection as literary works, and they made a similar finding in relation to a spare parts catalogue, and wage and salary forms. This should be contrasted with a decision that held that the layout of the pages of a diary does not qualify for protection as a literary work.
The author of a work that is also the owner of the copyright therein will have various rights. These include the right to prevent the reproduction of the work in any manner of form, the publication thereof, the performance thereof in public, as well as the broadcasting of the work. It is often not understood that there is no specific form or procedure in terms of South African Legislation which would provide for the registration of copyright. In terms of the Act, all that is required is for the work concerned to comply with the requirements stated in the Act, and then copyright will subsist automatically. In the event that the copyright of a particular work is infringed, the existence of copyright in the particular work would of course have to be proved in court. In this regard it would be necessary for the owner to prove that he himself, or otherwise the author, produced the work through independent skill and effort. For this purpose it is advisable that all earlier drafts of that particular work should be retained, preferably with an indication of the date on which it was created. This will facilitate the establishment of the existence of copyright in the particular work.
It is also of importance to note that, in general, copyright law does not protect an idea. In other words, it is only when a particular idea has been embodied in a material form that copyright would subsist. It is often not wise to discuss an idea for a particular venture without such an idea having been put into writing. A safety mechanism that might be used, for instance when architects or advertising agencies make a pitch for work, is to let the other party sign a non-disclosure agreement. In terms of such an agreement, the third party would then be prevented from using the idea, in particular if the assignment concerned is not awarded to the party making the pitch.