The recently reported news that organisers of the California music festival Coachella are suing Ghana’s Afrochella for “intentionally trading on the goodwill” of Coachella’s name and trademarks, is a good reminder for businesses to avoid copyright infringement. Copyright infringement typically involves someone using another person’s original creative work, or a copyrighted work, without permission. This is a serious offense and violation of the law may have significant consequences.
Especially in this digital era, businesses are at more risk of copyright infringement than ever before thanks to the ease with which one can source and distribute information.
It is therefore necessary that every business understands copyright law, especially entrepreneurs and small, medium, and micro enterprises (SMMEs). One mistake can severely hurt your bottom line, whether the violation was intentional or not.
Tumelo Mashabela, Managing Director at niche law firm Tshaya Mashabela Attorneys, shares a few tips that will help business owners avoid copyright infringement.
Familiarise yourself with the Copyright Act and its relevant provisions
The first step is to understand what copyright law is. There are common misconceptions around this issue that often lead to legal problems. Copyright law describes the rights that creators have over their literary including artistic works, and it provides the owner with the rights to have control on how its creative work can be used.
The primary function of a copyright is to ensure that creators economically benefit from their copyrighted materials and receive proper recognition.
Assume every work has Copyright Protection
Every type of content on the internet has a copyright owned by someone, and this is because copyright exists automatically without having to undergo any registration process. Once the work is original and fixed in some permanent form, copyright exists automatically.
One way of telling whether a work has copyright protection is through the copyright symbol © that may be affixed to it. However, do not assume that since a copyright symbol is not affixed onto the creative work that there is no copyright. The copyright symbol is not a requirement for copyright to exist.
Another way is to check if the work falls in the public domain, meaning it is free to use and copy. Copyright protection does eventually expire and once the copyright term ends for a work, it enters the public domain.
Read License Terms & Conditions carefully before use
Take the time to read terms of a license agreement before using any piece of work, as it can help you avoid copyright infringement issues. Even if the licence agreement provides that the piece of work is “free”, understand what the term “free” actually means.
If the terms of the license agreement are unclear, it is advisable to ask the copyright owner for clarification through a written document as evidence of the permission obtained. Alternatively, source the services of an attorney to assist you with the particular license agreement.
Know the exception of fair dealing
The fair dealing exception in the Copyright Act allows a user to copy other people’s copyright material for their own study, research, or private use without seeking permission from the copyright owner. This is only permitted if what you do with the work is fair.
South African copyright law doesn’t specify how much you may copy within the bounds of fair use, but it must be for your private use.
Navigating the world of copyright can be tricky. Businesses that are unsure whether they are infringing on copyright laws to speak to an attorney with expertise in this area.
