Study Unit 2.3 - Copyright acquisition and transfer

Question 1

In which ways may copyright be transferred ?

Answer 1

• By assignment
• By testamentary disposition
• By operation of law (ex lege).

Question 2

What is the general rule on copyright ownership ?

Answer 2

Subject to the provisions of this section, the ownership of any copyright conferred by section 3 or 4 on any work shall vest in the author or, in the case of a work of joint authorship, in the co-authors of the work.

Question 3

What are the exceptions to the general rule ?

Answer 3

• Section 21(1)(b).
• Section 21(1)(c).
• Section 21(1)(d).
• Section 21(1)(e).

Question 4

Discuss section 21(1)(b).

Answer 4

• Where an author creates a literary or artistic work during employment under a contract; and it is for the purpose of publication, then the proprietor (employer) will be the owner of the copyright in terms of the publication or reproduction of the work.
• However, the author remains the owner in every other respect.

Question 5

Discuss section 21(1)(c).

Answer 5

Where you commission a work; and pay or agree to pay for it in money or money’s worth; and the work is made in pursuance of that commission; then the person who commissioned it owns it.

Question 6

Discuss section 21(1)(d).

Answer 6

• If someone creates a work (like a piece of writing, art, or software) as part of their job or apprenticeship, the copyright for that work usually belongs to their employer or the person who provided the apprenticeship.
• This is true even if the work doesn’t fit other specific rules.

Question 7

Discuss section 21(1)(e).

Answer 7

• Parties may contract out of the exceptions and have the actual author, or an entirely different entity own the copyright in such work.
• The vesting of ownership by virtue of the exceptions is subject to the provisions of section 20 (moral rights).

Question 8

Discuss works created under the direction and control of the State.

Answer 8

According to section 21(2) ownership of any copyright conferred by section 5 shall initially vest in the State or the international organization
concerned, and not in the author.

Question 9

Discuss the effect of an assignment.

Answer 9

• When copyright rights are transferred (or “assigned”) from one person to another, the new owner (the assignee) takes over those rights.
• This means the assignee can now enforce those rights and sue if someone uses the work without permission.
• After the transfer, the original owner (the assignor) no longer has any claim to those rights.

Question 10

What are the formal requirements for assignment ?

Answer 10

• Must be in writing.
• Be signed by or on behalf of the assignor.
• The assignment instrument should clearly indicate the intentions and consensus of the parties to transfer ownership and receive ownership thereof.
• Must clearly identify the subject of the assignment.

Question 11

Discuss the author infringing copyright in his own work.

Answer 11

In the Galago Publishers case, the court established the test for infringement by reproduction:

• Similarity; the new work must be objectively similar to the original work, or a substantial part of it.
• Causal Connection; the new work must have been derived from the original work, showing a clear connection between them.

Question 12

Discuss exclusive, non-exclusive and sole licenses.

Answer 12

• A licence does not constitute transfer in the ownership of copyright.
• It is a permission, authorisation or approval
  granted by the owner of copyright to another (or others) to perform an act falling within the monopoly afforded to the owner.
• A licensee is generally entitled to authorise a third party to exercise the rights that they have acquired from the licensor, unless this is precluded by the terms of the licence.

Question 13

Discuss exclusive licenses.

Answer 13

• An exclusive license lets someone use a work in certain ways and keeps others, including the copyright owner, from using it.
• The licensee has special rights to use the work but doesn’t own the copyright.
• The licensee can sue if someone copies the work without permission, but they must inform the original copyright owner first.
• This lets the owner also claim damages or royalties if they’re owed.

Question 14

Discuss non-exclusive licenses.

Answer 14

• A non-exclusive license can be given in any way—spoken, written, or through actions.
• The owner can give this type of license to many people (multiple licenses).
• The license can be canceled or revoked anytime by the original giver or someone authorized to do so.

Question 15

Discuss sole licenses.

Answer 15

• A sole licence is a licence which affords the licensee to the exclusion of all other persons, besides the licensor, the right to perform the acts as agreed upon in relation to the subject work.
• The standard principles apply to non-exclusive licences also apply to sole licences.
• Unlike with exclusive licences, the licensor may exercise any rights in terms of the copyright despite the license’s existence.

Question 16

What are ‘needletime’ licenses ?

Answer 16

Section 9(d) and (3) of the Copyright Act gives a sound recording copyright owner the right to authorise or control the use of a sound recording in broadcasts and in public performances of music and other material carried by the record.

Question 17

Discuss hypothecation and attachment.

Answer 17

This involves using intellectual property, in this case copyright, as collateral to secure a debt.