Construction World October 2017

MARKETPLACE

COPYRIGHT IN SA LAW for built environment professionals

According to Legal Risk Advisor, Samantha Baleson of Aon South Africa, copyright law in South Africa is governed by the Copyright Act, 98 of 1978. “The Act provides protection against the unauthorised copying or reproduction of certain ‘works’. Infringe- ments of Intellectual Property (IP) or copyright are also dealt with in the Act and the main remedies which can be sought to obtain relief are an interdict and an award for damages,” says Baleson. Where does the copyright vest? “Copyright generally vests in the author of work except where the work is made by the author in the course of his/her employment, in which case the employer is usually the owner in terms of the In our increasingly hyper-connected world, seemingly unrelated events can have a profound impact on a business and professional career. It is crucial for professionals to stay informed and one such aspect to consider is copyright in South African law and how it applies to consulting engineers, designers, architects and the like. we found that many people we brought in struggled because they lacked an understanding of the Bell culture, our products and the unique way that we do things in our production and stores." At the same time the company realised that it had a strong group of employees on the shop floor with the required technical abilities and product experience yet had lacked the opportunity to pursue tertiary studies, which excluded them from applying for supervisor and managerial positions. The PMI development programme was born to enable Bell to grow its own timber and several groups have now attended the course and progressed in their careers. The PMI course runs for a year with lectures every Saturday, which has its challenges. "Many Supervisors would be coming off a third shift and walk straight into their class, or they would finish their lectures in the afternoon and go onto their overtime shift on the weekend. So it wasn't easy but the results have been incredible. The lowest mark that was achieved in the class was 64%. I also sat through many of the final presentations in terms of cost reduction and there were some great ideas," said Hodgson. For similar reasons Bell also put four Trainee Supervisors through the UNISA FMP. Hodgson said that this was quite challenging because "they were expected to work as Supervisors, work on shifts and study by themselves. There were no lectures. They had one contact session where they met with lecturers in Pretoria and got advice". In spite of this they also achieved outstanding results and all four went on to be appointed as fully-fledged Supervisors and are proving to be very successful. Thanduxolo Taboshe, a Supplier Quality Engineer based in the Bell Supplier Quality Team in Richards Bay, was announced the Top Student with the highest average in the class, as well as the highest average for the programme in KwaZulu-Natal. For his efforts he received a bursary from PMI to the value of R35 000. He will go on to the NQF6 Diploma in Operations Management and will attend PMI's public classes in Durban. 

contract of employment. For this reason, copyright vests in the professional practice or firm and not in the actual employee who created the document or drawing,” Baleson explains. “A client may use the copyright or intellectual property for the sole purpose of a project for which they have remunerated the service provider that created same. Ownership of the IP, however, still vests in the service provider, unless the agreement with the client stipulates otherwise,” she adds. The work, designs or presentations of built environment professionals such as consulting engineers, designers and architects often include design viewpoints and draft designs. “Although a client may be entitled to the use of copyright on the project for which they remunerate the professional, certain clients may attempt to use such principles and designs improperly to their own advantage while they undertake the work themselves and/or re-invite tenders based on these ideas of the professional,” Baleson poses a scenario. A practical example An architect and engineer put together the designs for a residential complex. The client and/or developer pay for the designs on that specific project and are entitled to the use of intellectual property for that specific project. The client then uses said designs for various other complexes without purchasing the copyright or intellectual property from the professionals. The problem is twofold: • The professional is at risk of being sued in terms of his/her designs for projects he/she wasn’t even aware of; • The professional is not remunerated for the use of his/her intellectual property. How do you protect yourself? Where the copyright is required by a client, it is recommended that the agreement between the client and professional contain a provision to the following effect: "The Professional shall not be liable (whether in contract or in delict) to the client or any other party whatsoever as a result of the use of the consulting engineers’ designs, drawings and specifications in any project or works other than those for which they are intended, detailed in this agreement, and the client hereby indemnifies the professional against any claim which may be made against him by any party whatsoever in any way arising out of the unauthorised use of such documentation for such other purpose as aforesaid." Professionals are also suggested to indicate that they should be adequately remunerated for their services before intellectual property ownership passes to the client. This provision could be as follows: "The Client retains the design rights and other intellectual property rights of all documents prepared by the Consultant upon full payment for the Services to the Consultant. The Consultant shall be entitled to use them and copy them only for the Project and the purpose for which they are intended, and need to obtain the Client’s permission to copy for such use." Professionals are advised to mark documents to the effect that copyright subsists in such documents. Suitable wording would be as follows: "Copyright vests in this document/drawing and no use or reproduction or duplication thereof may occur without the written consent of the author". In addition, the name of the copyright owner and the year in which

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CONSTRUCTION WORLD OCTOBER 2017