South Africa has been a World Trade Organisation (WTO) member since 1 January 1995 including the World Trade Organisation Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) that includes the Berne Convention for the Protection of Literary and Artistic Works. South Africa has been a member of the Berne Convention since 1928. The USA became a member of the Berne Convention in 1989. Prior to this a bilateral agreement existed between the RSA and the USA that was withdrawn in 1991.
The TRIPS Agreement was established to protect intellectual property rights internationally including photography. In terms of this agreement the copyright legislation of the country in which the images are used applies. That is, if a photographer is commissioned to create images in South Africa and the images are then used in Germany then German copyright law applies. In this case the commissioning agent would have to buy the rights to use the image in Germany from the photographer.
The Berne Convention for the protection of Literary and Artistic works was established in 1886. Countries that are signatories to the Berne Convention, like 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. The copyright is by default the automatic property of the author of the work who may assign the copyright or sell license for use thereof, in most member countries, regardless of whether the author owns the copyright to their work in their own country.
Article 9(1) of the Berne Convention states,“Authors of literary and artistic works protected by this convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form.”
Article 9(2) states that:
“It shall be a matter for legislation in the countries of the union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”
According to Part 2, Section 1 of TRIPs, “Members shall comply with Articles 1 through 21 of the Berne Convention and the appendix thereto.” There is no special provision in these treaties that determines any rights for an ‘owner’ of copyright as opposed to an ‘author’ of that work. The rights are very clearly the Author’s.
Despite local copyright law, the international position is that the author is protected by the copyright laws of the signatory countries and any use of a photograph outside South Africa by the local owner, who is not the author of the work, amounts to copyright infringement.
Information in this article may be verified on the International Law Office’s web site in an article written by Attorney Ron Wheeldon.
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Ralph Waldo Emerson