Contract and copyright Information as constitutes intellectual property rights

According to South African and International Copyright Law the following applies to all design work completed by any design company unless otherwise stated or agreed:

We would like to clarify to the client that costs incurred by the client is payment for the labour and skills used by a design company such as The Mind Studio. This does not imply (according to South African and International intellectual property laws) that the client has purchased the site or imagery or design or copyright of the site or work concerned. The site or work remains the property of The Mind Studio at all times.

The Mind Studio as author of the site retains and reserves all copyright of the concept, artwork, programming, authoring, literary works and design (according to the Copyright Act no. 98 of 1978) excepting the text and imagery or any other artwork supplied by the client. None of the aforementioned may be used outside of the specific project done for the client by The Mind Studio or in any reproduction without the written consent of The Mind Studio.

In the case of 3-dimensional work and industrial design, reproduction entails: "an unauthorised reproduction of a drawing of a technical nature will be made if the drawing itself is not reproduced but a three-dimensional reproduction of the drawing is reproduced in any form.

This is particularly relevant in the context of reverse engineering." and "an artistic work, includes a version produced by converting the work into a three-dimensional form or, if it is in three dimensions, by converting it into a two-dimensional form".

Artistic Works and Reverse Engineering
1. Artistic works in the form of drawings of a technical nature (such as engineering drawings, flow charts, etc.) and works of craftsmanship (such as prototypes, models, etc.) are eligible for copyright under the Copyright Act. Furthermore, an indirect copy (ie. a copy made from a copy) of a copyright work by definition constitutes a reproduction of the copyright work, as does a version in three-dimensional form made from an artistic work in two dimensions (and vice versa) (section 1(1), definition of 'reproduction').

2. Accordingly, copyright owners of engineering drawings and prototypes endeavoured to rely on such copyright to prevent others from making indirect copies of their copyright works by reverse engineering. This gave rise to the introduction into the Act of section 15(3A) in 1983, by Copyright Amendment Act No. 66 of 1983 which came into effect on 17 October 1983.

3. In terms of section 15(3A), the copyright in an artistic work of which three-dimensional reproductions were made available, whether inside or outside the Republic, to the public with the consent of the copyright owner (referred to as authorised reproductions), is not infringed if any person without the consent of the owner makes three-dimensional reproductions or adaptations of the authorised reproductions, provided that the authorised reproductions primarily have a utilitarian purpose and are made by an industrial process.

4. 'Reverse engineering' of such authorised reproductions therefore does not constitute an infringement of copyright.

5. Non-infringement will only occur in the case of indirect copying, ie. where authorised three-dimensional reproductions are copied. If the drawings or prototypes themselves are copied, this may constitute an infringement of copyright.

Displaying of false copyright notices breaches the Merchandise Marks Act and the South African and International Copyright Law. An excerpt from the S.A. Copyright Act no. 98 of 1978:

"Copyright constitutes intellectual property, and as such it can be commercialised, assigned (transferred) or licensed.

No assignment and no exclusive licence will be effective unless it is in writing and signed by the assignor (section 22(3)). A non-exclusive licence may be written or oral, or may be inferred from the conduct of the parties."

The Mind Studio does not transfer copyright to the client but offers non-exclusive licenses for use of the work instead.

The Mind Studio will hereby issue the client with a non-exclusive license which confers the client as the non-exclusive licensee. This license grants the client authority to display the project in the public domain but not to alter it so that it in any way negatively affects the website author's reputation.

The client has unlimited use of the work but only to the extent of the non-exclusive license which may be withdrawn by the author at any time. This also implies that the client may only make changes to the work after the Creative Director of The Mind Studio has given written consent or if stipulated in writing by this member of The Mind Studio (Section 20 of the Copyright Act as discussed on Page 1, paragraph 5).

Copyright and Intellectual Property rights resources are from the Adams and Adams Copyright Lawyers website.

Rowan van Tonder Creative Director, The Mind Studio