Intellectual Property Streetwise doc

Χοντεντσ: What creative workers need to know about IP Different IP mechanisms Check your contracts IP rights in different creative industries Writing and Publishing 13 Film and Video .14 Music and Broadcasting 16 Art and Craft 17 Heritage 17 General information .19 Νοτε: The IP field is a complex one The purpose of this booklet is to give general information only More information will be available on the forthcoming Cultural Observatory website (contact ubaduza@hsrc.ac.za for details) As a second phase of the project we hope to develop specific guidance for authors, artists, musicians and other people working in the cultural industries If you have a specific problem we advise you to contact organisations in your sector, the government agency responsible for administering IP rights (CIPRO) or a lawyer specialising in a relevant area of intellectual property (contact the SAIIPL to find one) See the end of this booklet for the relevant contact details Social Cohesion and Integration Research Programme Senior Editor: Prof Wilmot James, Executive Director, Social Cohesion and Integration Research Programme, Human Sciences Research Council (HSRC) Published by HSRC Publishers Private Bag X1982, Cape Town, 8000, South Africa www.hsrcpublishers.ac.za © Human Sciences Research Council 2004 First Published 2004 All Rights reserved No part of this book may be printed or reproduced or utilised in any form or by any electronic, mechanical , or other means, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers ISBN 0-7969-2085-0 Production by ComPress Acknowledgements: This paper was developed by the HSRC’s Social Cohesion and Integration Unit in Cape Town as part of the Cultural Observatory initiative of the Department of Arts and Culture It was written by Harriet Deacon with the assistance of Sandra Prosalendis and Utando Baduza Advice on the legal aspects of the document was kindly given by Monica Seeber and Lawrence Reyburn We would also like to thank the following people for their assistance in drafting the document: Eve Gray, Arlette Franks, Leonard Shapiro, Gavin Tonks, Kit Reynolds, Steve Kromberg, Erica Elk, Elitha van der Sandt, Gerard Robinson, and Jill Galanakis Παγε Ωηατ χρεατιϖε ωορκερσ νεεδ το κνοω αβουτ ιντελλεχτυαλ προπερτψ As creative workers, we rely on IP for our livelihood but are particularly vulnerable to transgression of our IP rights because we work on a small scale, not usually earn enough to employ specialist lawyers or go to court, and find it difficult to access information about our rights This booklet is intended to provide some basic information on what IP is and how to protect your IP rights Intellectual property (IP) is a legal term, describing the fact that people can acquire rights as a result of their creativity and innovation IP rights cannot be held over ideas but only over the way they are expressed in material form: writing, painting or sculpture, film, music, designs, inventions, etc If you want to protect the IP rights to your ideas try and express them as fully as possible in some material form, for example, by writing them down, recording them on tape, making a sculpture, music or artwork Locking your work away in a drawer may sound like the best option for protecting your IP rights – but it won’t help you to earn money from or get exposure for your work Protecting your IP rights in something you make only benefits you financially when other people want to buy it, or when you can get a financial settlement by proving that others have copied your creative expressions and made money from them There are several mechanisms by which the creator’s IP rights can be established over a work: copyright, patents, trademarks, industrial designs, performer’s rights, confidential know-how, and indigenous knowledge Some kinds of IP mechanisms (e.g copyright) are automatic and not require registration, others require quite complex registration processes (e.g patents) Whatever route you take, make sure you have established your rights over the work in a way that can stand up in court Use the table in this booklet to find out what IP mechanisms you will be dealing with in your sector Underlying IP law is the general idea that people who create original works should be recognised as the authors of those works and receive benefit from money generated by the commercial use, or economic exploitation, of those works Intellectual Property Rights (IPRs) are legal rights granted to people who have made an original creative work If you have created a work, you have IP rights over it irrespective of Παγε whether you are a famous (or even a good) artist, musician or writer, whether the work is a good one, or even whether it is complete Owning IP rights is different from owning objects both because IP rights generally not last forever, and because IP rights often exist in the creativity expressed in something rather than in the object itself In order to establish your claim to the IP associated with your creativity, you have to create something material (e.g a piece of writing or an artwork) but your rights to the IP in that book or artwork are not tied to your possession of the material object You can sell a sculpture or book, for example, without selling your IP rights over it IP rights are actually a bundle of different rights that can be transferred to different people by the original creator, usually for a payment of some kind For example, the author of a book owns the moral right to be identified as the author and the copyright over the way words have been used to express his or her ideas in the book Through negotiations with the author, a publisher may acquire the license to publish the book the author has written, and a filmmaker may acquire the rights to produce a film of the book (these rights are often limited to specific countries, languages and specific time periods) Rights owners not have to transfer all their intellectual property rights to one person or company, but in some industry sectors this may be the norm IT COULD HAPPEN TO YOU… These are fictional examples based on experiences in the sector The price of a date: FB was a visual artist who created stone and wood sculptures She created designs that were copied by a company manufacturing garden gnomes and registered as industrial designs However when she looked into it with a lawyer, FB could not prove that the designs were initially hers because she had not dated her work This meant that the company would not pay her any royalties and could actually sue her for copying their designs Preventive measures: always sign and date your work so you can prove you own the copyright should your rights be challenged or transgressed Keep dated and signed records of your creative processes – sketchbooks, logbooks, journals etc Protect your IP rights: This can be done by registering designs, trademarks and patents; dating, signing and copyright-marking your work Read more about how to this below You can also sign contracts with people you work for or show your work to – see the checklist for contracts in this booklet Παγε Defend your IP rights: Any public exposure of your work exposes it to potential unauthorised use and copying – but it is necessary in order to earn money from the work It can be expensive to enforce your IP rights through the courts, but sometimes it is worth it – you need to work out the costs and potential benefits Don’t be afraid to negotiate costs with your lawyer Don’t infringe other people’s rights: If you are borrowing creative ideas from other people or registering your own trademarks and brands, it is important to make sure you are not infringing other people’s IP rights This is not only unethical, but it can also be costly if they challenge you, and it can lead to brand confusion or to loss of profits through unnecessary advertising and legal fees IT COULD HAPPEN TO YOU… These are fictional examples based on experiences in the sector Stolen goods: Crafter NM from a small town in the Eastern Cape sold a number of beaded craft designs to a foreign tourist visiting her town The man went back to his country and proceeded to mass-produce the beaded designs there at low cost Although NM could prove that she was the author of the designs she was not aware of the problem for some time and in any event did not have the money to pursue a court case Fortunately an angry letter to the press from a well-informed customer in the foreign country highlighted her plight and embarrassed the man’s company into sending her some of the royalties due to her Not everyone is so lucky, however Preventive measures: many people have their designs stolen, both here and abroad, and it is difficult to seek low-cost remedies Public exposure of illegal and dishonest behaviour by large companies can sometimes work as well as, if not better than, legal action However, you may find yourself in difficulties if you make allegations that cannot stand up in court Also, many designs are stolen by small concerns, not big companies If you go to court, it’s much easier to prove your work has been copied if you have lodged a signed and dated copy of it with a lawyer or some other responsible third party before you start selling or displaying it Most designs can also be registered as industrial designs so that if your work is copied without permission, you will find it easier to get a remedy in court However, design registration and court cases can be expensive Παγε ΙΠ Μεχηανισµσ Patents provide IP protection for original inventions that use a new process or result in a new kind of product Patent protection means that the invention cannot be commercially made, used, distributed or sold without the ownerís consent Inventors can patent inventions with CIPRO and then sell or license these rights to someone else Trademarks are words, images or symbols that distinguish one product from another in the marketplace They can be registered with CIPRO Industrial designs protect IP rights in the shape, form, appearance, pattern, ornamentation and configuration of a product that has been registered as a functional and/or aesthetic design by CIPRO Industrial designs have to be able to be produced by an industrial process – they don’t have to be being produced in this way at the time of application Performer’s rights require a performer or producer of a work to be paid for public uses of the performance, not just the written or visual reproduction of the work In South Africa, performers’ rights now apply to traditional cultural expressions, such as traditional ceremonies, performances or dances Most creative workers find it too expensive to register patents, trademarks or industrial designs to protect the IP in their works Copyright is free, requires no registration, and gives protection for around 50 years, longer than patents (20 years) and industrial designs (10-15 years) (Trademarks can be renewed for an unlimited period.) For reasons of space, we will therefore give a bit more information on copyright Χοπψριγητ Copyright protects the right of the original creator to reproduce the work in any manner or form unless he or she agrees to have someone else reproduce it Copyright does not prevent limited private or personal use of the work by others – it is focused on preventing personal gain accruing to others through the use on a commercial basis of a significant part of the work, or through unacknowledged use of the work Copyrights can be sold or licensed to others South Africa’s Copyright Act (Act 98 of 1978, as amended) covers literary, musical and artistic works, cinematograph films, sound recordings, broadcasts, program-carrying signals, computer programs and published editions Παγε The term ‘literary’ does not mean the work has to be of any special literary quality or standard; it merely means recorded - or made material - in written, printed or digital form Similarly, ‘artistic’ refers to works recorded by drawing, painting, photography, etc and not necessarily something of inherent aesthetic value For a work to be eligible for copyright protection, it does not have to be published or manufactured There is no copyright over ideas that have not been written down or otherwise made material Εσταβλισηινγ χοπψριγητ According to the Copyright Act (1978), a work is eligible for South African copyright protection if it has been made by a person or entity residing in South Africa, or has been first published or broadcast or made in South Africa All countries that are signatories to the Berne Convention (as is South Africa) are bound to protect the rights of authors from other member countries in the same way as they protect their own This is known as the principle of national treatment Copyright does not have to be formally registered in order to come into effect In South Africa there is, in fact, no compulsory registration for copyright: it arises automatically when you create your work But because of the way the Copyright Act is written, you have to be able to prove that you own copyright in order to enforce your IP rights in court You should therefore state explicitly on all your creative works that they are subject to copyright Write “copyright”, or “©” followed by your full name and the year of creation or publication Posting your signed work to yourself and then keeping it in the sealed envelope is a method often used to prove that you wrote the work before a specific date, but it may not stand up in court Copyright in films and cinematography can be formally registered with CIPRO - registered works will be listed in The Patent Journal This registration is not compulsory but it can help to make authorship and other relevant factors easier to prove if a dispute arises Some organisations help creative workers prove they own copyright in case of transgression by providing a voluntary but legally admissible registration service Scriptwriters can for example submit a paper copy, computer disc, CD ROM or video tape of their script to the South Africa Script and Story Register for added protection against artistic and design theft For the same reasons, composers and lyricists can register their work through the Southern African Music Rights Organisation (SAMRO), while authors, poets and dramatists can register at the Dramatic, Artistic and Literary Rights Organisation (DALRO) Παγε Ηοω λονγ δοεσ χοπψριγητ λαστ? Sound recordings, radio and TV broadcasts: copyright remains in force for fifty years from the date of first publication or broadcast Films and cinematography: copyright lasts for 50 years from the date the film was first made or shown Photographs: copyright expires 50 years after the work is made available to the public (published) If the photograph is not published within 50 years of its making, copyright expires 50 years after the photograph is made It therefore has nothing to with the life of the author Published editions: copyright lasts for 50 years from the end of the year in which the edition is first published Literary, musical and artistic works (excluding photographs): copyright lasts for 50 years after the death of the author (from the end of the year in which the author dies) But if the work has not been published before the author dies, the term of copyright continues to subsist for 50 years after the end of the year in which publication does take place If publication never takes place, the duration of copyright is perpetual In the case of joint authorship, ‘death of the author’ is deemed to be the death of the author who dies last Anonymous works: copyright lasts for 50 years from the end of the year in which the work was made available to the public (published) or from the end of the year in which it is reasonable to presume that author died (whichever is the shorter) But if the identity of the author becomes known before this period expires, then copyright lasts for the life of the author plus 50 years Μορε ινφορµατιον: Dean, O Handbook of South African Copyright Law (Juta) DALRO (http://www.dalro co.za/) & CIPRO have specific information on copyright on their websites The full text of the Copyright Act (1978) with amendments is available on the UNESCO Collection of National Copyright Laws site.(http://portal.unesco.org/culture/en/ev.php@URL_ID =15486&URL_DO=DO_TOPIC&URL_SECTION=201.html) The South African Scriptwriters Association website (http://www.saswa.org.za/)has articles on copyright for scriptwriters The Writers’ Network website (http://www.thewritersnetwork.org/ index.htm) has articles on copyright for writers Register your scripts on the South African Script and Story Register (http://www.saswa.org.za/resources/register.html) Παγε Χηεχκ ψουρ χοντραχτσ Contracts can cover any kind of agreement between two parties Some common kinds of contracts in the creative industries that deal with IP issues include confidentiality agreements (such as the submission release form used by scriptwriters), recording contracts, publishing contracts, and so on Confidentiality agreements may regulate the use of material in a situation where IP rights are not being ceded to another party Other kinds of contracts may specify what IP rights (e.g distribution rights) are being ceded by the rights owner (e.g the recording artist) to another party (e.g the recording company), where these rights apply (e.g world rights, national rights) and for how long Τηεσε κεψ ισσυεσ ρεγαρδινγ ΙΠ ριγητσ µαψ βε χοϖερεδ ιν α χοντραχτ: Exclusive and non-exclusive rights: An exclusive license gives the person receiving the licence the only right to use the knowledge, rights or resources in the ways specified A non-exclusive licence places no limits on subsequent licences or others using the same knowledge, rights or resources Make sure that you are clear about which licences your are granting or acquiring are exclusive, and why Understand what the industry norms on this are The duration, geographical scope and type of IP rights For example, publishing contracts can assign (or license) rights defined by format, medium, territory, duration and language For instance, in a contract between an author and a publisher, the contract may give a publisher the right to publish a book in the English language only, or in all languages; in South Africa only, or throughout the world; in volume form only, or electronically as well; for a limited period of time, or for the duration of the copyright Remember: people cannot license to others any rights that they not own themselves It’s also not a good idea to cede rights to others if they are not likely to use them Primary and subsidiary rights The owner of IP rights may give permission for others to negotiate licensing of further rights to third parties In publishing, for example, The primary right is the right to publish the book, whereas the subsidiary rights grant the publisher rights to issue sub-licences such as to reproduce extracts; to make a film; or to adapt the work in some other way The publishing contract will always set out the moneys the author can expect to receive from the sale of such subsidiary rights Παγε 10 IT COULD HAPPEN TO YOU… These are fictional examples based on experiences in the sector Concept theft: HG was an author of childrens’ books He was asked by his publisher to come up with a concept for a new book series In the process of thinking through his ideas, he discussed them with some friends before he had had a chance to write them down One of the friends inadvertently passed on a key idea to a rival publisher the next day, and this idea was put on paper immediately and used as the basis for developing their new series Although it was HG’s original idea, he had not established copyright over it by writing it down or recording it in some other way The rival publisher owned the copyright because he had put it in writing first Preventive measures: record your ideas on paper or tape in order to protect your IP rights over them before you share them with others – ideas are not copyrighted , only their material form HG could find a legal remedy under the law relating to unlawful competition as a delict, however, especially if there was an element of confidentiality implicit in the circumstances by which the competitor got to hear of his idea Royalties: Royalties are the payments given to rights holders in acknowledgement of their contribution to the product that is sold Composers, for example, negotiate a royalty fee or percentage of sales with a recording company Flat fees may be disadvantageous to the composer if the product sells very well Make sure you understand how this percentage is calculated, whether on gross receipts or on net profits, and how overheads and expenses are factored into the net profits Discuss the issue with other people in your industry and find out what the industry norms are before going to sign any contract Reversion of rights A contract should set out the circumstances in which rights granted will revert to the original rightsholder In the case of a contract for the publication of a book, rights normally revert when the book has gone out of print, the author has requested the publisher to reprint it, and the publisher fails to so after a certain period of time Minimum performance clauses: Original rights-holders can require a commercial company such as a publisher or a recording company to take active steps to promote the product, and put in place fallback mechanisms should this not be done Fallback mechanisms could include a reversion of rights or a switch to a non-exclusive licence Acquisition of rights to reproduce other rights-protected material In publishing, a manuscript frequently contains quotations Παγε 11 or extracts from other sources which may not be reproduced without permission from the rights’ owner The contract should set out who (the author or the publisher) is responsible for obtaining such permission, and who is expected to pay Warranties and indemnities: A contract often requires one party to give warranties, or promises that something is the case, or indemnities, a promise to shield the other party from some risk Make sure that any warranties or indemnities you promise to uphold are reasonable, very clearly and narrowly defined, and not expose you to undue risk For example, it would be unreasonable to expect a composer to indemnify a recording company against the costs of defending all challenges to the originality of the work, however indefensible these challenges might be IT COULD HAPPEN TO YOU… These are fictional examples based on experiences in the sector Musicians delay: Four township musicians, young and new to the field, wrote and performed songs in a recording studio every Saturday for a number of years during the 1950s After every weekly session, they received a payment and signed a form they thought was a receipt It was in fact a contract assigning all their rights over the music to the recording company, which made a lot of money from the sales of the music Years later, while in exile in London, they were alerted to the fact that they could have been receiving royalties for the work they produced They contacted the recording company who after years of delay offered them royalties on new releases of their work, but no compensation for the initial royalty income that had been forfeited By this time, however, it was too late to take the matter to court because the law of prescription says that you cannot contest contracts after three years has expired after the signing of the contract or after you could reasonably be aware of the problem The musicians were thus dependent on the goodwill of the company concerned for any royalty income whatsoever Preventive measures: always read all contracts before signing them Get someone to explain them to you, preferably not the person who wants you to sign the contract Make sure you understand industry norms, and negotiate the best deal for yourself Class action suits are now possible in South Africa, so if industry norms are unfair, you can lobby for change and remedy past injustices Παγε 12 ΙΠ Ριγητσ ιν ∆ιφφερεντ Χρεατιϖε Ινδυστριεσ Writing & Publishing IP mechanisms Kinds of IP rights Note: other mechanisms may also be appropriate in some cases Sector Note: these are examples only Note: all Acts should be read with amendments and regulations Copyright Right to be recognised as the author (moral rights).Translation rights.Publication and distribution rights in various media, places and languages Film or broadcast rights for a book Copyright Act 1978 (many amendments) Legislation Counterfeit Goods Act (1998) Registration and collecting societies DALRO handles all requests for use of written material and also for the public performance of literary works Film and Video Copyright Right to be recognised as the director or producer (moral rights) Performance rights Reproduction and distribution rights Broadcast rights Copyright Act 1978 (many amendments) Registration of Copyright in Cinematograph Films Act (1977) Counterfeit Goods Act (1998) Copyright in cinematography and films can be registered with CIPRO Music, Public Performance Copyright Right to be recognised as the composer (moral rights) Recording rights Distribution rights Broadcast rights Copyright Act 1978 (many amendments) SAMRO collects performance royalties on behalf of composers and lyricists SARRAL and NORM collect mechanical royalties on behalf of composers and music publishers DALRO handles all requests for the public performance of dramatic, dramatico-musical and literary works Performer’s rights Performers’ Protection Act (1967) Counterfeit Goods Act (1998) Art and craft Heritage Copyright and Industrial Designs Sometimes also Trademarks, Geographical Appellations It is currently difficult to protect IP that traditionally belongs to a group of people, and has changed over time However, in some cases collectivelyowned IP has been protected through the use of Patents, Industrial Designs, Trademarks, Copyright, Geographical Appellations Right to be recognised as the artist (moral rights) Reproduction of artwork or craft Reproduction of designs in artwork or craft Manufacture and distribution of multiple copies of an artwork or craft Copyright Act 1978 (many amendments) Merchandise Marks Act (1941, 2001) Patents Act (1978, 1986, 2001) Designs Act (1993) Trade Marks Act (1993) Counterfeit Goods Act (1998) Registering patents, trademarks, and industrial designs can be done through CIPRO Reproduction of traditional designs Manufacture and distribution of traditional crafts Use of traditional knowledge to commercially exploit pharmaceutical properties of plants Use of name specific to region in which crafts have traditionally been produced Performance of traditional ceremonies Copyright Act 1978 (many amendments) Performers’ Protection Amendment Act (2002) Indigenous Knowledge Bill (2001) Merchandise Marks Act (1941, 2001) Patents Act (1978, 1986, 2001).Designs Act (1993) Trade Marks Act (1993) Counterfeit Goods Act (1998) Registering patents, trademarks, and industrial designs can be done through CIPRO DALRO handles reprographic reproduction rights for artistic works Παγε 13 Ωριτινγ ανδ Πυβλισηινγ Literary works are automatically covered by copyright as soon as they are recorded in material form – no registration is required Much of the work currently being done in the sector is to educate people about copyright infringement in schools and universities Students and teachers in South Africa rely very heavily on photocopying of published material for educational purposes, and in doing so they exceed the allowances for educational and private use in the Copyright Act The Copyright Act allows limited free copying of printed materials for educational purposes but the provisions for this are ill-defined Enforcement measures against infringements of the Copyright Act are inadequate The print industries thus wish to ‘monitor and encourage legislative development and institute public copyright awareness campaigns’ Perhaps less well discussed at the moment are the rights of authors Authors in general are poorly organised and not always know their IP rights In a small publishing industry such as the one we have in South Africa, authors may find that royalty income is low They also may find it difficult to negotiate contracts with publishers because of a lack of sophisticated understanding about how IP works Various organisations such as ANFASA can help writers discuss IP issues Ωριτινγ ανδ Πυβλισηινγ σεχτορ οργανισατιονσ: PICC: Print Industries Cluster Council, PO Box 15254, Vlaeberg, 8018, Cape Town, tel 021- 422 2491, fax: 021- 424 1484, email: admin@picc.org.za http://www.picc.org.za/ They have a working group on copyright and have produced a useful report on IP issues in the publishing sector: Eve Gray and Monica Seeber, 2004 ‘Report on Intellectual Property Rights in the Print Industries sector’ PASA: The Publishers’ Association of South Africa http://www.publishsa.co.za/ OPA: Online Publishers Association, PO Box 4116, Cape Town 8000, tel 011-713 9810, fax 011 7139973 email info@opa.org.za http://www.opa.org.za/ The OPA's mission is to provide a non-profit forum in which South African Online Publishers can address issues of common interest SAWA: The South African Writers’ Association, contact Andries Walter Oliphant (Chairperson), tel 012- 429 6810, fax: 012- 429 3221, email: oliphaw@unisa.ac.za ANFASA: Academic and Non-fiction Authors’ Association of South Africa, PO Box 31134, Braamfontein, 2017, tel 011- 489 5000, email info@anfasa.org.za http://www.anfasa.org.za/ The Writers’ Network: 62 Queen Victoria Street, Cape Town, 8001, South Africa Παγε 14 IT COULD HAPPEN TO YOU… These are fictional examples based on experiences in the sector Tender ideas: MK was a creative thinker who presented several branding ideas to a company in a tender process He later found that the company used a number of his ideas without his permission and without payment Preventive measures: you can draft confidentiality (non-disclosure) agreement or ‘submission release’ agreement to be signed before you make a tender application or present your ideas to a potential client company Discuss this with the company Subtle incorporation of your ideas in subsequent work by the company can be difficult to contest Read the fine print in the tender advertisement or other documents carefully, because some tender processes specifically state that ideas presented in the tender applications are not confidential or protected tel 021- 422 2495, fax: 021- 422 2496, email: info@thewritersnetwork.org http:// www.thewritersnetwork.org/index.htm The Writers’ Network (WN) is an initiative by writers for writers that collects and disseminates information about support and resources available to writers in South Africa Its website has a special section on copyright SATI: South African Translators Institute PO Box 27711, Sunnyside, Pretoria 0132, tel 012- 343 0624, fax 012- 343 0730 http://www.translators.org.za/ Print Media SA: Newspaper Association of Southern Africa, the Magazine Publishers Association of Southern Africa and the Community Press Association, PO Box 47180, Parklands, 2121, tel 011- 721 3200, fax 011- 721 3254 SASWA: The South African Scriptwriters Association, PO Box 91937, Auckland Park 2006, tel 011- 678 3838, fax 011- 476 9988, email saswa@global.co.za Kit Reynolds tel 011-781 3205, email kitrey@iafrica.com http://www.saswa.org.za/ Administers the South Africa Script and Story Register: Scriptwriters can submit a paper copy, computer disc, CD ROM or video tape of their script to the register for protection against artistic and design theft Φιλµ ανδ ςιδεο Film and video are covered by copyright Unlike other sectors, copyright in cinematography and films can be registered with CIPRO Scriptwriters can register their work with the SA Script and Story Register Registration is not compulsory but will make proof of Παγε 15 authorship and other relevant factors easier to prove if a dispute arises The motion picture industry, especially in America, is increasingly concerned by the growing amount of motion picture piracy (DVD or video copies) in places like South Africa For local film-makers, however, the main problem is getting films made and developing local audiences The local film industry remains small although it has a well-developed television and an internationally-recognised commercials industry, and thus a good technical and personnel infrastructure Various initiatives have boosted the local industry, but audiences for locally-produced motion pictures have historically been limited by the location of cinemas in rich (mainly white) areas, and economic factors continue to encourage television viewing instead of movie-going among the majority of the population Φιλµ ανδ ςιδεο σεχτορ οργανισατιονσ: IPO: Independent Producers Organisation, PO Box 2631, Saxonwold 2132, tel 011799 2262/3, fax 011- 465 6001, email director@ipo.org.za or administrator@ipo.org.za http://www.ipo.org.za/ NFVF: National Film and Video Foundation, Private Bag X04 Northlands, 2116, South Africa, tel 011- 483 0880, fax: 011- 483 0881 http://www.nfvf.co.za/ The Motion Picture Association: an international organisation formed to combat motion picture piracy Reports of transgressions of motion picture copyright can be reported to their hotline - mailto:hotline@mpaa.org http://www.mpaa.org/ FRU: Film Resource Unit, PO Box 11065, Johannesburg 2000, tel 011- 838 4280, fax 011- 838 4281, email admin@fru.co.za The FRU’s mission includes a promise to foster the development of audiences for independently produced and developmentally appropriate film and video material http://www.fru.co.za/ ACA: Association for Communication and Advertising This organisation lobbies for the interests of advertising and marketing agencies and provides a legal advice service to members http://www.acasa.co.za/ AMF: Advertising Media Forum The Advertising Media Forum is a non-profit company which provides a platform for media strategists, planners and purchasers to co-ordinate a common policy to promote acceptable standards and practices in the media industry http://www.amf.org.za/ Kit Reynolds tel 011-781 3205, email kitrey@iafrica.com administers the South Africa Script and Story Register http://www.saswa.org.za/resources/register.html: Scriptwriters can submit a paper copy, computer disc, CD ROM or video tape of their script to the register for protection against artistic and design theft Παγε 16 Μυσιχ ανδ βροαδχαστινγ Musical works are covered by copyright as soon as they are recorded in some material form The copyright automatically rests with the person(s) who made the musical work and does not require any formal registration process to come into effect Recording artists in South Africa often struggle because they not have sophisticated knowledge about their IP rights or how to negotiate favourable contracts with recording companies One of the other problems facing the recording industry is piracy Because it is comparatively easy and cheap to copy cassette tapes and compact discs (CDs), many people so informally at home and commercially This reduces sales income for recording companies and royalty income for recording artists In South Africa, most royalties are paid to foreign recording artists, who are broadcast most often on local radio and television Amended local content regulations came into effect in August 2003 that increased the airplay of SA music on commercial stations to 25% and on public service radio to 40% Still, many broadcasters not comply, or play local music in off-peak times, and some complain that there is not sufficient music of broadcast quality to play Composers, lyricists and music publishers can register with an organisation like SAMRO (the Southern African Music Rights Organisation) that then negotiates and collects royalties for them from performing, transmission and broadcasting rights They can also register with NORM or SARRAL for the collection of mechanical rights Μυσιχ, περφορµανχε ανδ βροαδχαστινγ οργανισατιονσ: RiSA: The Recording Industry of South Africa, PO Box 367, Randburg 2125, tel 011- 886 1342, fax 011- 886 4169 http://www.risa.org.za/ RiSA represents the music industry’s interests especially on piracy MUSA: Musicians Union of South Africa, tel 011-339 1676, fax 011- 339 1677, email musa2@absamail.co.za They support the efforts of musicians to protect their intellectual property interests SAMQC: The South African Music Quota Coalition, PO Box 48259, Kommetjie, 7976, email: info@samqc.org.za http://www.robinauld.co.za/samqc/default.asp The SAMQC lobbies for increasing the local content broadcast quota to 50% and improving enforcement thereof PANSA: Performing Arts Network of South Africa PANSA is a national network of individuals, non-government organisations, service providers and mainstream institutions that are engaged in the practice or support of the performing arts (all forms of Παγε 17 dance, music, opera, musical theatre and theatre) The PANSA regional offices have offered workshops, including ones on intellectual property and negotiating contracts Tammy Ballantyne serves as PANSA's National Coordinator and may be contacted at Postnet Suite 114, Private Bag X7, Parkview, 2122, tel 011-880 5486, fax 086 673 7002, email pansa@artslink.co.za http://www.artslink.co.za/pansa/ Regional offices: Western Cape: 021- 674 0520 KwaZulu Natal: 031- 209 0142 Eastern Cape: 046- 622 3897 Limpopo: 015- 295 8924 Free State: 051- 447 7771 Αρτ ανδ Χραφτσ Artistic works (including crafts) are automatically covered by copyright when they are made in a material form Some craftworks can also be registered with CIPRO as industrial designs This can be expensive, but if you have a large market, and the craft can be manufactured by an industrial process, you might want to consider it In some cases other IP mechanisms like trademarks and geographical appellations can be used to protect your IP rights over art and craft work In South Africa, visual artists, small crafting businesses and individual crafters struggle from a lack of access to local and export markets as well as inadequate product development and packaging There are other problems too, such as lack of capital, weak branding and marketing, poor access to materials and unfavourable infrastructure Many crafters also find that their products or designs get copied and sold more cheaply elsewhere, thereby undercutting and diluting their potential market This happens around the world Αρτ ανδ Χραφτ σεχτορ Οργανισατιονσ: VANSA: Visual Artists Network of South Africa Enquiries for the Western Cape can be addressed to Zayd Minty on one@intekom.co.za The office in Limpopo Province can be contacted at frankly@mweb.co.za Cape Craft & Design Institute, tel 021- 460 3982 /3743, fax: 021- 460 3553, email elke@ctech.ac.za If you want to subscribe to their newsletter or trade flashes email Marjorie Naidoo (naidoom@ctech.ac.za) Ηεριταγε Current intellectual property rights law in South Africa does not accommodate crossgenerational and communal ownership of IP rights, critical to any definition of heritage rights ownership Attempts to draft legislation to protect community-based heritage Παγε 18 resources have so far been slow and unsuccessful The Indigenous Knowledge Bill, which seeks to this, has still not been passed, after several years of discussion Heritage resources that are in a material form are copyrighted but only for fifty years after the creator’s death This means that many older heritage resources can be freely copied for commercial gain by others More ephemeral kinds of heritage (dance, ritual, knowledge systems) are not protected by copyright, but performance rights in traditional cultural expressions (rituals, dances, performance poetry, etc.) are now protected under the Performers’ Protection Act, as amended in 2002 Because of the climate of redress established by the changing attitude towards community rights, the Southern African San community was able to negotiate a benefitsharing agreement with the assistance of the CSIR when a commercial company wished to use the hoodia plant, long used to ward off hunger on San hunting trips, to make a diet pill It is however often difficult to prove such rights in court Also, the benefit-sharing agreement only lasts as long as the commercial firm’s patent, which is about 15 years There are also many other ways in which San cultural heritage – their traditional art, for example – has been freely used in commercial contexts without acknowledgement or payment In other countries, trademarks, patents, geographical appellations and industrial designs have been used successfully to protect IP rights over community-based heritage resources The work done by WIPO on the protection of community-based indigenous heritage through existing IP mechanisms suggests interesting possibilities for communities and individuals seeking to protect their IP rights over heritage resources and art forms Ηεριταγε σεχτορ οργανισατιονσ: WIPO: The World Intellectual Property Organisation http://www.wipo.int/index html.en is currently working on international IP regimes to manage the IP rights in what they call ‘traditional cultural expressions’, or community-based heritage For examples of how IP law has been used to protect heritage around the world, read this article by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Fifth Session, Geneva, July 7-15, 2003: ‘Information on national experiences with the intellectual property protection of traditional knowledge’, http://www.wipo.int/documents/en/meetings/2003/igc/index_5.htm SAMA: South African Museums Association Issues around the confidentiality and use of communities’ heritage information is discussed Email sama@imaginet.co.za SAHA: South African History Archive PO Box 31719, Braamfontein 2017, tel 011717 1941, fax 011-339 4137 E-mail: sahav@library.wits.ac.za http://www.wits.ac.za /saha/ Anti-apartheid archive & lobby group for access to information in state archives Παγε 19 Γενεραλ Ινορµατιον ον ΙΠ Γενεραλ οργανισατιονσ CIPRO: Companies and Intellectual Property Registration Office, the government agency responsible for administering IP rights http://www.cipro.gov.za/Home/ DTI: Department of Trade and Industry Private Bag X84, Pretoria, 0001, tel 0861 843 384, fax 0861 843 888 and email contactus@thedti.gov.za http://www.dti.gov.za/ DAC: Department of Arts and Culture, Private Bag X727, Pretoria 0001, tel 012- 324 4096/7/8, fax: 012324 2687 http://www.dac.gov.za/ CreateSA: Creative Research Education and Training Enterprise South Africa, tel 011- 794 3810, fax 011- 794 4070, e-mail: info@createsa.org.za CreateSA is a research organisation specialising in the creative industries and has a specific project on IP http://www.createsa.org.za/ NACSA: the Network for Arts and Culture South Africa NAC is a national umbrella body representing all disciplines and sectors of arts and culture in the country (PANSA, VANSA etc) Contact Michael Dearham, on 011-838 4280/1/2, fax 011-838 4451 SAFACT: South African Federation against Copyright Theft, Unit 11, 152 Hendrik Verwoerd Drive, Randburg 2195, tel 011- 886 3824, email safact@iafrica.com Lobbies and acts against game software and motion picture piracy http://www.safact.co.za/ The Creative Commons project proposes that artists (writers, musicians, photographers, filmmakers and scholars) who have digital materials share their work widely on the internet provided that the original artists retain copyright for commercial uses A spin-off project called Creative Commons Africa is soon to be launched: join their cc-za discussion list at the following address: http://lists.ibiblio.org/mailman/listinfo/cc-za Χολλεχτινγ Σοχιετιεσ DALRO: the Dramatic, Artistic and Literary Rights Organisation, PO Box 31627, Braamfontein, 2017 Tel 011- 489 5000, email dalro@dalro.co.za DALRO administers reprographic reproduction (photocopying) rights in artistic and literary works, and the rights to public performance of dramatic, dramatico-musical and literary works http://www.dalro.co.za/ SAMRO: the Southern African Music Rights Organisation, PO Box 31609, Braamfontein, 2017, tel 011489 5000, email samro@samro.org.za SAMRO is the main body in Southern Africa representing music performing rights Its key function is to administer performing, transmission and broadcasting rights in the musical works of its members (mainly composers and lyricists) and its affiliated members http://www.samro.co.za/ SARRAL: South African Recording Rights Association Ltd, tel: 011-339 1333, fax 011-339 1403 and email info@sarral.org.za Address: PO Box 31091, Braamfontein 2017 SARRAL collects mechanical royalties on behalf of composers and, to a lesser extent, music publishers This means that they help composers and publishers collect royalties for the copying for commercial purposes of their music onto records, tapes and CDs or any other medium Παγε 20 NORM: the National Organisation for Reproduction Rights in Music in Southern Africa Ltd, tel 011486 4286 or fax 011-646 3717, email jillg@norm.co.za Address: PO Box 78187, Sandton 2146 NORM collects mechanical royalties on behalf of music publishers and, to a lesser extent, composers NORM helps composers and publishers collect royalties for the copying for commercial purposes of their music onto records, tapes and CDs or any other medium IFFRO: International Federation of Reproduction Rights Organisations, rue Prince Royal 87, B -1050 Brussels, Belgium, tel +32 551 08 99, fax +32 551 08 95, e-mail: secretariat@ifrro.be IFFRO is the umbrella body to which reproduction rights organisations world-wide are affiliated http://www.ifrro.org/ CISAC: International Confederation of Societies of Authors and Composers, 20-26 Boulevard du Parc, 92200 Neuilly/sur/Seine, France, tel.: + 33 55 62 08 50, fax: + 33 55 62 08 60, e-mail: cisac@cisac.org As of January 2004, CISAC represents 209 authors' societies in 109 countries Thus, CISAC indirectly represents more than million creators, covering all the artistic repertoires: music, drama, literature, audio-visual works, graphic and visual arts http://www.cisac.org/ BIEM: Bureau International des Sociétés Gérant les Droits d'Enregistrement et de Reproduction Mécanique, 20-26 Boulevard du Parc, Neuilly-sur-Seine, 92200, France, tel +33 55 62 08 40, fax +33 55 62 08 41, email info@biem.org BIEM is the international organisation representing mechanical rights societies http://www.biem.org/ Λαωψερσ σπεχιαλισινγ ιν ΙΠ ισσυεσ SAIIPL: The South African Institute of Intellectual Property Law, PO Box 4685, Pretoria 0001, tel (012) 362-1729, fax: (012) 362-0969, email saiipl@icon.co.za This is an association of Patent Attorneys, Attorneys, Patent and Trade Mark Agents practising in South Africa who specialise in IP law http://www.saiipl.org.za/about.htm LSSA: The Law Society of South Africa PO Box 36626, Menlo Park 0102 Pretoria, tel 012- 362 1729, fax 012- 362 096, email anna@lssa.org.za The LSSA is the umbrella body of the attorneys' profession in South Africa http://www.lssa.org.za/ Κεψ σουρχεσ υσεδ ιν τηισ παπερ PICC 2004 Report on Intellectual Property Rights in the Print Industries sector, by Eve Gray and Monica Seeber Department of Arts, Culture, Science and Technology (1998) Cultural Industries Growth Strategy (CIGS) Report (http://www.dac.gov.za/reports/creative_SA_report/csa1.doc) Department of Arts, Culture, Science and Technology (1998) In short: the South African Cultural Industries (http://www.dac.gov.za/reports/music_pub_film_craft/cult_indust_summary.doc and http://www.dac.gov.za/reports/music_pub_film_craft/summary.doc) Teljeur, E 2002 Intellectual Property Rights in South Africa: An Economic Review of Policy and Impact, Edge Institute / Trade and Industrial Policy Secretariat (TIPS), South Africa WIPO 2003 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Fifth Session, Geneva, July 7-15, 2003: ‘Information on national experiences with the intellectual property protection of traditional knowledge’ http://www.wipo.int/news/en/index.html?wipo_content_frame=/news/en/documents.html ICTSD 2003 Final Report of UNCTAD-ICTSD Project on Intellectual Property Rights and Sustainable Development http://www.ictsd.org/pubs/ictsd_series/iprs/PP/PP_3CH_02.pdf ... Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Fifth Session, Geneva, July 7-15, 2003: ‘Information on national experiences with the intellectual property. .. Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Fifth Session, Geneva, July 7-15, 2003: ‘Information on national experiences with the intellectual property. .. (http://www.dac.gov.za/reports/music_pub_film_craft/cult_indust_summary .doc and http://www.dac.gov.za/reports/music_pub_film_craft/summary .doc) Teljeur, E 2002 Intellectual Property Rights in South Africa: An Economic Review of Policy and Impact, Edge