The subject of photographic copyright ownership in South Africa is complex and fraught with controversy and emotion, no more so than amongst professional photographers.

Modern laws of copyright ownership are intended to allow people who create original artworks, literature, designs and inventions to claim authorship of their creations, make money selling them, and to prevent unauthorised copying by others.

The concept of copyright was first realised when Johann Gutenberg invented the movable-type printing press in Germany in 1455, and printed several copies of the Mazarin Bible. However, it was the Americans who first formalised the notion of copyright ownership laws when they included the following clause into their Constitution in 1787, over 200 years ago; Photography was only invented 50 years later:

“The Congress shall have Power To promote the progress of science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

At the end of World War II in 1945, South Africa was a founding member of the United Nations. However, when the UN General Assembly proclaimed the Universal Declaration of Human Rights in 1948, General Smuts, then South Africa’s prime minister, refused to sign it. It was regrettable since Article 27 of the declaration included the following clause:

“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

The moral interest mentioned above refers to the author’s right to be identified as such, and the material interest refers to the financial rewards of exploiting those artistic productions. So the basis for copyright ownership by authors has a long and hard-won pedigree. But only as recently as 1978 did American professional photographers get an amended Copyright Act that unequivocally made them the copyright owners of commissioned photography.

Ironically, in 1980, the South African Copyright Amendment Act No. 56 of 1980 did exactly the opposite; it removed copyright ownership of commissioned works from South African photographers and handed it, on a platter, to their clients. That Act is still in operation today a quarter-century later. The specific and much hated clause, Section 21(1)(c), slightly abridged, states:

“Where a person commissions the taking of a photograph, the painting or drawing of a portrait, and the making of a film or sound recording, such person shall be the owner of any copyright subsisting therein.”

Not only does the above clause discriminate against freelance professional photographers, but also portrait painters, film makers and the entire population of artists in the SA music industry! And, more than a decade into South Africa’s Liberation, its professional photographers (and musicians) have yet to be liberated.

Fortunately, paragraph (e) of the same Section allows for the exclusion of the above clause if the client verbally agrees to it. That is, it does NOT have to be in writing. This is an important lever for professional photographers to claim ownership of copyright in commissioned works. But it MUST be used in conjunction with a formal pricing and usage structure such as that found in the PPSA Price & Usage Guide 2000.

The Professional Photographers of Southern Africa (PPSA) has spent the last fifteen years battling to achieve several aims: To have the discriminatory aspects of the Copyright Act removed, to get the photographers to unite as a body in meeting with the publishing and advertising associations, and to establish a system of professional pricing, copyright management and usage fees for commissioned photography.

WHERE ARE YOUR RIGHTS?

When the Constitution of the New South Africa was being planned in 1992, the public was invited to submit their aspirations and desires of what should be in the New Constitution. The PPSA (Professional Photographers of Southern Africa) submitted a proposal that Article 27 (see above) be included in the South African Bill of Rights to protect intellectual property rights.

When the New Constitution was promulgated in 1996, Article 27 was nowhere to be found. The subsequent interference by government in South Africa’s pharmaceutical industry is suddenly no mystery. It was planned all along. So, photographers and other authors still have NO protection of their intellectual property rights in the Bill of Rights. What’s even more ominous is the SA Human Rights Commission pamphlet entitled Protecting Your Rights, in which it defines the following: 

Equality: You cannot be discriminated against. But affirmative action and fair discrimination are allowed. (Discrimination against professional photographers is not fair.)

Property: Your property can only be taken away from you if the proper rules are followed. (This depends on who is making the rules.)

Fortunately, it also states: Freedom of Expression: All people, including the press, can say whatever they want.

It’s time for South African photographers, and indeed all authors, artists and intellectuals, to say what they want!