A common issue nowadays is who owns the copyright in content posted to web site posts or blogs – content in the form of text, visual images or the like, where a web site allows this sort of participation by users. We often receive queries around (1) who owns the copyright in a blog or post posted to a web site; (2) when will you infringe copyright of someone else when blogging or posting to a web site; and (3) who can be held liable for copyright infringement of postings?
Recent changes to Facebook’s terms had many users unhappy. In terms of the amendment, a user now gives Facebook an unlimited licence for use of user content shared on the web site, beyond removal of the content by the user. Users reacted strongly to this. From these reactions it is evident that web site users are becoming more and more aware of them “owning” the material that they share on the Web. However it is important to remember that there is a difference between giving a licence to use copyrighted work and to assign copyright in a work (transfer ownership) – a topic for another time.
When reading on the topic of copyright you will immediately find that it is a worldwide concern and a lot has been written on copyright and infringement on the Web in different countries. One problem with online copyright and infringement is that there is not one set of rules governing it or one body applying it globally. Secondly, as with so many other pieces of law, it is sometimes difficult to apply the laws dealing with copyright to the online world. A third problem is that the layman often does not know when it is infringing someone else’s copyright or when it actually owns copyright in a work shared on the Web.
Users that are not experts in copyright law, use the Web daily in various ways. These include searching for information, using available information, sharing information and advertising. All of these involve copyright in one way or the other.
In South Africa copyright is regulated by the Copyright Act 98 of 1978, including its Schedules (“the Act”). To say that all copyright legislation throughout other countries regulate copyright on exactly the same principles as the Act will not be correct. But most certainly certain general principles can be identified throughout most of the different pieces of legislation dealing with copyright in different countries. Despite different countries applying different pieces of legislation, according to Dean (the writer of Handbook of South African Copyright law), it can be said that there is an “international network of copyright protection” which aims to standardize protection of foreign works between different countries. The two major international copyright conventions currently in global operation are the Berne Convention and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). South Africa is a party to both agreements.
South African copyright law in general
A copyright owner has some exclusive rights in a work eligible for copyright protection, including control over the further use of the copyrighted work. On balance, most text, visual images, photos, recordings and other postings to web sites will qualify as a “work” for protection under the Act. These could fall into one of the many different classes of works that qualify for protection, in many instances as “literary” or “artistic” works under the Act and we accordingly focus our discussion on these classes.
Works must meet certain general and specific criteria for copyright protection. Without discussing each of these in detail, a work must in general be
- original; and
- exist in a material form;
and specifically be
- created by an author that is a “qualified person” in terms of the Act (different definitions for authors exist, depending on which work it is); or
- first published in the Republic of South Africa or a country listed in the Schedule to the Act.
Who is regarded to be a “qualified person”? A qualified person is a South African citizen (or someone residing or domiciled here) or a juristic person incorporated in South Africa or a citizen or juristic person from a country outside South Africa, but listed in the Schedule to the Act to which the operation of the Act has been extended. The countries listed in the Schedule are signatories to the Berne Convention. Almost two hundred countries are listed in the Schedule to the Act which means in practice that the protection of the Act extends to works from many countries globally.
Who owns copyright in a post
In terms of our law, the author (the maker or creator) of the work is generally the first owner of the copyright in the work, subject to certain exceptions like creating a work under an employment contract. This is in line with copyright principles in other countries. So once it is established that the work qualify for copyright protection in terms of the above general requirements, the crucial question is who the author of the work is. The author of a literary work can be said to be the person who creates an idea into a material form, by applying some form of intellectual effort and skill. This means that subject to the other requirements being met and no exceptions applying, the person writing or creating a post on a web site, is the author and first owner of the copyright in that post.
The next question that can be raised is whether anonymous works also qualify for copyright protection under the Act, as people often post to web sites without revealing their identity. The issue of anonymous posting has recently received wide media cover in the UK, after a judge refused to protect the anonymity of the author of the popular “NightJack” blog. According to The Times, the judge ruled that “Mr Horton had no ‘reasonable expectation’ to anonymity because ‘blogging is essentially a public rather than a private activity'”. This ruling must not be viewed out of context though. It does not mean that a blogger may not blog anonymously and must reveal its identity. It simply means that bloggers do not have a right to stay anonymous and should therefore take the necessary precautions to remain anonymous, if they so wish.
Although the author is unknown when blogging anonymously, the anonymous works are indeed protected against copyright infringement. It seems that many of the different pieces of legislation worldwide, including the Berne Convention, make provision for protection of anonymous works for a certain time period since lawfully made available to the public. The same applies in South Africa.
In practice, our opinion is that the chances are fairly good that an author of a post will qualify as a “qualified person” and accordingly be protected by the Act, because as seen above, authors from many different countries will qualify as “qualified persons”.
If copyright is not conferred by means of a “qualified person” being the author, it could be conferred by way of “publication”. If the work was first published in South Africa or a listed country, the Act will apply. According to South African writers on this issue, a work will be taken to have been published “if copies have been issued to the public with the consent of the copyright owner in sufficient quantities as reasonably to meet the demands of the public having regard to the nature of the work”. This leaves us with questions because we may not know who the owner is and the place of publication may be difficult to determine in the online world. And our case law has not given the answers yet.
The Act reserves certain acts in respect of each work eligible for copyright, to the owner of the copyright. To name only a few, these include the reproduction, copying, and adaptation of the work.
The Act differentiates between direct and indirect infringement. Direct infringement occurs when a person does one of the acts reserved by the Act for copyright owners without the owner’s permission. This includes situations where only a part of a work is copied, reproduced, etc, provided that it must be a “substantial” part. Whether it is a substantial part or not, will be determined on a case by case basis.
Two forms of indirect infringement can occur, namely (1) when someone without authorization deals with infringing copies of a work and (2) if someone permits an infringing public performance of a work.
Of course there are several exceptions to infringement of copyright of which “fair use” or “fair dealing” as it is described in the Act, is probably the most popular one. With reference to literary and artistic works, fair dealing includes inter alia (1) use for private or personal use, (2) criticism or review of a work and (3) quoting from a literary work that is lawfully available to the public. Quotes must be limited to the purpose for which the quote is used and the source and name of the author must be mentioned.
The person infringing the copyright in a work will be liable for copyright infringement under the Act. This can include liability for any of the acts mentioned in the previous paragraph. In practical terms it means that in general you can not copy, adapt or reproduce content from the Web and use it in your post as if it was your own original work. And you may not knowingly deal with infringing copies of works.
The available remedies for copyright infringement include an Interdict, an action for damages suffered and in certain instances an infringer can also be charged criminally.
In short, postings to your web site may very well qualify for protection under the Act and should not be used unless the necessary consent has been obtained or unless one of the exceptions against infringement applies. From the other perspective, be careful when making a post and ensure that you do not infringe on someone else’s copyright.