De Kock Attorneys Copyright

Copyright – Publishing

Why is copyright important for the publishing industry?
Copyright applies to most publications, irrespective of the literary quality, whether published in hard copy or electronically. The business of a publisher revolves around the developing of books, magazines and other publications which are usually subject to copyright protection and which are offered for sale and sold and distributed for money.

Copyright is therefore a very important aspect of the publishing industry for authors, editors, publishers, illustrators, graphic designers, photographers and other creative persons contributing to the final product.

Who owns copyright in a publication?

A single publication, for instance a paper based book, may embody a number of different “works” which are eligible for copyright protection and which are created and/or owned by different persons.

A traditional book publication would usually at least incorporate a “literary work” and a “published edition”. The literary work relates to the novel or the story written by the author. The published edition relates to the typographical arrangement of the literary work on the pages of the book. This includes, for instance, the paragraph spacing, lay-out, font and page numbers. The published edition is created and owned by the publisher.

If a publication includes, for instance, a photograph, such photograph could constitute an “artistic work” which is created and possibly owned by a separate person. For example, let us consider the example of a magazine article. X, a travel and independent writer, emails a photo article on the Okavango Delta to the editor of a travel magazine. It is accepted for publication, edited and appears in the magazine four months later.

Generally speaking, copyright in the literary work (the narrative accompanying the photographs) would belong to X. The author of a photograph is by definition the person who is responsible for the composition of the photograph, but there are a number of important exceptions to this rule. If, for instance, spouse commissioned and paid a professional photographer to take the photographs that form part of the travel article, the copyright therein would belong to the wife.

Furthermore, the magazine publisher would own the copyright in the published edition of the version of the article as it published in the magazine. Therefore, even though X and his wife hold copyright in the literary work and the photographs respectively, they could be infringing on the magazine’s copyright in the published edition, if they make unauthorised photocopies of the article as it appears in the magazine and send it to all their family and friends.

From the example above, it is evident that a single magazine article, or a single page or chapter from a book for that matter, can embody different copyright works. What is more, the copyright in each such work can belong to totally different persons. To complicate matters further, copyright gets passed down to the author’s heirs, if he or she dies before the copyright expires.

Recommendations for Authors:

Authors are usually individuals who do not work with copyright agreements on a daily basis. When dealing with a commercial publisher, you may be requested to sign a publishing agreement to authorise the publisher to publish the work and sell the publication.

Most publishing agreements make provision for the assignment of the copyright of the author’s literary work. Most agreements also provide for the author to warrant to the publisher that the work does not violate any existing copyright.

Please do not wait until your manuscript is nearly finished before considering copyright. It would save a lot of time, money, and trouble to consult with a copyright attorney, publisher or someone else who is knowledgeable on copyright before starting to gather material for your work.

Recommendations for publishers:

From a publisher’s perspective, it is very important to request authors to sign written publishing agreements. In this regard, it is important to borne in mind that copyright can only be assigned in writing.

It is generally necessary for publishers to take assignment of the author’s copyright in a literary work, at least for a term. In our view, there are two important reasons for this.

Firstly, the publisher must obtain all the rights in a publication to be in a position to legally trade with the final product on its own. If the publisher does not hold all the rights in the works embodied in a final product, it would have to involve, for instance, the author in all dealings with the publication. This can frustrate the workflow and income of the publisher.

The publisher must further ensure that its publishing agreement is clear and comprehensive enough to provide it with all rights necessary to deal with the publication in the manner envisaged. In this regard, the agreement must be clear on aspects like reprints, translations, film rights, whether the publication would be published in hard copy and/or electronic format, and which countries the publication will be sold and distributed.

Secondly, most publishers mandate collective rights organisations to licence use of their publications. If a publisher is not the owner of the copyright vesting in the different works embodied in a publication, it would not be in a position to mandate a collective rights organisation. Especially in the case of learning and academic institutions, it may be necessary to negotiate and consider blanket licenses to authorise lecturers and students to make necessary reproductions of published works for study purposes.

In South Africa, the Dramatic, Artistic, Literary Rights Organisation (DALRO) is the only collective rights organisation which receive mandates from authors and publishers to licence the use of their dramatic, artistic and literary works. DALRO administers the licence schemes for dramatic, artistic and literary works, collect and pay over royalties to authors and publishers. DALRO is a non-profit organisation and requires an administrative fee for this service. For more information on their services, visit

Need further advice?
Although the above are only general remarks, it shows how easily copyright can become a monstrous maze, even constantly changing its own already confusing appearance as does the labyrinth in Harry Potter and the Goblet of Fire! Each case must be considered on its own facts. Please contact us, if you require an opinion or legal advice on any copyright matter or agreements relating to publishing.

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