Legislation governing copyright ownership is contained in the Copyright Act 1978 with subsequent amendments and is quite clear on the initial ownership of copyright.

Non-Commissioned Work

Any freelancer producing non-commissioned work owns the initial copyright. Note that the copyright is not in the idea(s) involved, it is in the execution of that idea. The copyright only comes in to force when the idea is expressed in some physical form.

Commissioned Work

For commissioned work, the position is different. All freelancers except photographers, those painting or drawing a portrait, those making gravures and those making films are the initial owners of copyright. For the exceptions listed, the commissioner of the work owns the initial copyright.

General

Note that the Copyright Act only governs copyright ownership within South Africa. Outside South Africa, the Berne Convention and Tripps Agreements apply.

The law gives copyright protection in the absence of any agreement specifying copyright ownership rights. If an agreement (which should be in writing) is made, the agreement will override the legal protection given by the Copyright Act. It is possible to legally own copyright but lose ownership because of an agreement. The agreement will take precedence over the Copyright Law.

This leads to the conclusion that for all but the exceptions noted above, agreements normally lead to a loss of rights. For the exceptions (photographers particularly), agreements lead to a gain in rights.

Contracts

a) General

Contracts are a thorny and contentious area most freelancers wish to avoid. They are, however, an inevitable part of our workload. Contracts should, at their most basic, cover copyright ownership and the allowed usages of a particular piece of work. They can extend to cover other areas, such as terms of payment, extended uses of work (more later about digital rights), geographical limits of use and so on.

The key point about contracts is that dealing with them should not be a passive exercise in the sense that we should wait and see what is asked from us before negotiating. A more active approach involves thinking in terms of what we want from a particular assignment and presenting these points as a basis for the client to negotiate from rather than the other way around. It is always good policy to start with a contract which restricts a clients rights as much as possible and then to negotiate additional rights for additional payments.

Agreements should be written up in a contractual form. Even if you, as the freelancer, own the copyright, it is best to ensure that the copyright ownership position is understood by all the parties involved and is stated in a contractual form. The reason for this is that should a disagreement arise somewhere along the line, a contractual agreement would be dealt with under contract law whereas actions under copyright law are much more difficult (and expensive) to pursue.

Note that agreements are generally made before work starts on a project. Agreements may evolve during the project or even after but the initial agreement should always be signed off at the quotation stage or before work is handed in. Agreements shown on the invoice will be difficult to enforce if a dispute subsequently arises.

b) Rights

A right granted to a client is, in effect, a licence to use the work for a particular or series of purposes for which a payment is made. A right negotiated from the freelancer is one less opportunity to benefit from an independent use of the work but may, however, provide an earning opportunity through the client. Rights are inextricably linked to earnings and, because of this, should not be negotiated away without adequate compensation.

Freelancers should be aware that a knowledge of and a respect for rights is not an industry given and this reinforces the need to commit agreements to writing.

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