Who is the author?
Who owns the copyright in a work is dependent upon who the author is, and so we need to look at this more closely. Identifying the author is not always clear-cut. The different kinds of works have different criteria for authorship.
Literary work
The author is the human being (a natural person) who makes or creates the work. Often, two or more people will work together in creating a literary work — film scripts are a good example. They will then be joint authors.
Musical work
Again, the author is the human being who makes or creates the work.
Artistic work (except photographs)
The author is the human being who makes or creates the work.
Photograph
The author is the person who is responsible for the composition of the photograph.
The person who clicks the camera might not be this person. For example, you give your niece’s friend the camera and tell her to press the button when you say ‘now’. You then set about telling everybody in the family gathering where to stand, where to sit, you get someone to fetch the pet dogs and hold them, and you even tell the young girl where to stand to get the best of the afternoon light. She is the photographer, but you have composed the photograph — so you are the author.
There was a court case in America recently about who owns the copyright in this picture, which is actually a selfie taken by a crested macaque.
David Slater — who was on an assignment in Indonesia — set up his camera amongst the macaques to see what would happen. He claimed the copyright. The Court judged that Slater could not claim copyright because he was not the author, and the macaque who pressed the button could not have copyright because only a human being can be an author.
Sound recording
The author of a sound recording is the person who made the arrangements for making the sound recording. Say an orchestra is performing at the Artscape Theatre in Cape Town. The conductor wants the concert recorded and contacts various local recording studios to get quotes. He appoints one, and spends the entire morning before the show planning and discussing where the microphones must be placed. The sound engineer who presses the buttons on the mixing desk and adjusts the controls is making the sound recording, but the conductor was also involved in making the arrangements for the making of the sound recording. They are co-authors.
Cinematograph film
The author is the person who made the arrangements for the making of the film. This is usually the producer: he hires the crew, appoints the actors, attends to the financial and legal aspects, sources locations, takes out the insurances, etc. As we will see shortly, because the producer often does this in the course of his employment by a film studio, the film studio owns the copyright even though the producer is the author.
Broadcast
The author of a broadcast is the first broadcaster. This can be a corporation (called a juristic person). A company in other words.
Programme-carrying signal
The author is the natural or juristic person who first sends the signal to satellite.
Published edition
The author is the publisher of the particular edition.
Computer program
The author is the person who exercised control over the making of the program.
In a recent case about a cattle herd management system, the Court held that the coder was the author even though he sought information from the Agricultural Research Council to ensure that the program served its purpose, and submitted it for periodic reviews on development. The coder was the one who exercised control over the making of the program as required by the definition.
The detail is important. It is not always the person who made the program. If the coder was acting under instructions from someone else who supervised the technical aspects, directed what the program must do, and when, and who ran quality control checks along the way, then this other person probably exercised control over the coder who was making the program. In fact, that person might not be a coder himself.
Computer-generated work
Where a computer program or a literary, musical or artistic work has been generated by a computer, the author is the person who undertook the arrangements necessary for the creation of the work.
It was decided by a South African court that a ‘computer-generated work’ is one created by a computer in circumstances where there is no human author. However, this definition (of the author of a computer-generated work) comes from a time before the existence of artificial intelligence as we know it.
It has been decided by courts (elsewhere in the world) that artificial intelligence, or AI, cannot be an ‘author’ because only a human being can author literary, musical and artistic works.
Computer-generated works (and AI) is an area of uncertainty. Get expert advice!
It is quite simple really. Copyright will subsist in a work if:
- It is original;
- It has been recorded in some form; and
- Its author was a citizen or permanent resident of South Africa at the time the work was made; or
- It was first published in South Africa.
If one of these requirements is missing, there is no copyright. This is what I mean about boxes to be ticked.