Intellectual Property is the broad legal term used to describe the products of the mind, which embrace all forms of creative expression and technological innovation. Most countries protect intellectual property with laws of copyright, patents, trademarks and designs.
The concept of intellectual property and artistic copyright was originally established internationally by the Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886 and signed in Stockholm on September 9, 1886 (it today includes a number of revisions over the years since).
In 1967 the Geneva-based World Intellectual Property Organization (WIPO), was founded as a self-funding agency of the United Nations, to serve as the global forum for intellectual property services, policy, information and cooperation. It has 192 member states, of which South Africa is one.
Intellectual Property and the Performing arts in South Africa
In South Africa Intellectual Property is covered by the Copyright Act, 1978 and its various amendment acts, and administered by the Companies and Intellectual Property Commission in the Department of Trade and Industry and copyright protection continues for 50 years after the year in which an author dies. Where more than one author creates a work, the work remains protected as long as one of the authors is protected.
Among those aspects subsumed under the general concept that are the most pertinent for theatre, film, media and the arts are:
A copyright is an exclusive right granted by law (internationally) for a limited period to an author, composer, designer, etc. for his/her original work. Unlike other forms of intellectual property, copyright does not need to be registered, except for cinematograph films. The application of this general principle varies from country to country.
The South African Dramatic, Artistic and Literary Rights Organisation (DALRO), explains the South African practice as follows on its website:
"Copyright controls how you use creative works made by other people. It gives exclusive rights to the original creator to receive payment in the form of royalties for all reproductions and use of the work. The South African Copyright Act 98 of 1978, as amended, governs all aspects of copyright in South Africa. It lays out the rules for what is protected, what it is protected from and how long it is protected for.
Copyright is territorial. This means that the rights that are protected, the method of protection and the period of protection differ from country to country. However, the principle of copyright protection is common to all the nations which are signatories to the Berne Convention and the Universal Copyright Convention.
These nations (of which South Africa is one) are obliged to incorporate certain basic principles in their national laws and are bound to offer reciprocal treatment to works that come from other nations observing the Berne Convention."
DALRO also points out that, in South Africa, copyright protection continues for 50 years after the year in which an author dies. Where more than one author creates a work, the work remains protected as long as one of the authors is protected.
Performing rights are the right to perform music, literary works (plays, poems, etc.) in public and for profit. It is part of copyright law and demands payment (royalties) to the creator (composer, lyricist, choreographer, playwright, poet, etc.). In the case of published work, the publisher may share in the royalties paid for performances, according to the contractual agreement between creator and publisher.
DALRO makes the following important point about performing rights in South Africa: Performing rights must be obtained and paid for "under all circumstances, even for charity performances and dress rehearsals with an audience. Any unauthorised performance is illegal. There's a simple rule: if there's an audience (paying or not), it's a public performance and you must pay royalties".
In South Africa such rights are largely handled by two organizations, the Southern African Music Rights Organisation (SAMRO) and the Dramatic, Artistic and Literary Rights Organisation (DALRO).
A royalty - or more commonly royalties - is the term used for the income earned by a creator (author, artist, photographer, composer, etc.) for each copy of his/her work (book, article, composition, artwork) sold, or for each public performance of a work (play, composition, film, etc.) and by a patentee for the use of his/her patent.
The website Investopedia expands on this in its article Royalty (under the rubric "Financial Analysis"):
"A royalty is a payment to an owner for the ongoing use of their asset or property, such as patents, copyrighted works, franchises, or natural resources. The legal owner of the property, patent, copyrighted work, or franchise receives a royalty payment from licensees or franchisees who wish to make use of it to generate revenue. In most cases, royalties are designed to compensate the owner for the asset's use, and they are legally binding.... The terms of royalty payments are laid out in a license agreement."
The management of Intellectual Property Rights in South Africa
As shown above, both the issue of copyright and of performing rights in South Africa are covered by the Copyright Act, 1978 and its various amendment acts, and are administered by the Companies and Intellectual Property Commission in the Department of Trade and Industry.
In South Africa such rights are normally handled by two related organizations, the Southern African Music Rights Organisation (SAMRO) and the Dramatic, Artistic and Literary Rights Organisation (DALRO). South African Music Rights Organisation
For more on these organizations and on South African practice, , see the ESAT entry on each, and/or consult their particular websites:
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