Wednesday, 1 July 2009

IP ownership: commissioner or creator?

The Independent Communications Authority of SA (Icasa/The Authority) has published a Position Paper addressing, in particular, whether there is a need to change the laws relating to copyright ownership in commissioned works.

Those who have been following the TVIEC and their concerns with the SABC will recall that the TVIEC, representing the content providers, were up in arms about the fact that currently an exception under the ownership legislation in the South African Copyright Act means that the commissioner of that work owns the copyright for cinematographic films (amongst other exceptions) and not the creator. Afro Leo expressed his initial views on the the TVIEC open letter to government here and more recently here. He is now delighted to find that the Position Paper summarises a full discussion on ownership of IP between MNET, WOW, SABC, eTV, On Digital, SASFED and the National Film and Video Foundation. The Position Paper can be located here. There relevant sections are:

3.15 What role should the Authority play in the regulation of IP rights taking into consideration the role currently played by CIPRO and the DTI

3.16 Is there an explicit legislative basis for the Authority to regulate IPRs

3.17 Is IPR [ownership] not supposed to based on a commercial agreement between the commissioning parties

3.18 How should conflict relating to IPRs be adjudicated

The Authority concludes at 4.4.5-4.4.7 that "The Authority has noted the problem of full ownership ...brought about by the exception. Considering the position [of copyright ownership] can be negotiated by contract, there is no compelling reason to amend the Copyright Act at this stage. Any discontentment ... should be brought to the attention of the DTI and CIPRO. ...The Authority will engage with the DTI and CIPRO and other relevant government departments on these issues"

Perhaps unsurprisingly, the SABC displayed the strongest view of maintaining the status quo. Afro Leo finds himself siding with a comment from WOW that, although the ownership position on copyright can be negotiated, the legislative position determines the strength of the relative negotiating positions. Afro Leo can also think of fundamental reasons why copyright should, as a base point, vest in the commissioner of the work. For example, it would be unwieldy to require separate licenses each time the cinematograohic work was used which, in itself, could restrict the ability to commercialise the work. The balance is that the owner of the work should somehow be obligated to, at the very least, attempt to commercialise the work. Again the post "when is a failure to exploit, exploitation" rings a timely bell, especially for the SABC.

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