All posts by Andrea Walker

Whose copyright is that? Perpetual copyright and indigenous languages in archives

Andrea Walker is an archivist in Special Collections, working with the AV Archive.

Copyright is a form of intellectual property. It is intended to incentivise the publication of works* by providing the creator with a monopoly over the economic rewards generated by the work, for a limited time. A work does not need to be published in order to have copyright, however.

How to get copyright:

  • Be original, which means that it originates with the creator—it doesn’t need to be unique or novel.
  • Fall into a category of works that is granted copyright under the law—which covers pretty much everything found in archives.
  • Be in a fixed, material form—which just means that it needs to be recorded somehow: written down, taped, typed, whatever.
  • Be created by a qualified person—right now, because of copyright treaties, that’s pretty much everyone. But for older works, like the ones found in archives, you have to determine which treaties were in force at the time.

So now that we’ve established that pretty much everything found in archives is protected by copyright law at some point, we turn to the most important part of the first paragraph. Copyright is a limited time monopoly. Which is a fancy way of saying that it doesn’t last forever. Eventually it expires.

Except when it doesn’t. How many things in South African archives have perpetual copyright? So very many. Let’s look at some examples.

Pages from Lucy Lloyd’s |xam notebooks. Book: BC_151_A2_1_001. Story: Words and sentences: got at Breakwater. (See more at the Digital Bleek and Lloyd)

The Bleek and Lloyd Collection is one of the most well known collections about Indigenous Languages in South Africa. Wilhelm Bleek, Dorothea Bleek, and Lucy Lloyd died in 1875, 1948, and 1914 respectively. If they had published their notebooks, classified as literary works, before they died, these would have entered the public domain on 1 January 1926, 1999, and 1965 respectively. But the notebooks were not published. The Centre for Curating the Archive has “published” them online, but that’s not publication under copyright law*.

What does this mean? Once the notebooks are published in a way that conforms with the law, the copyright will have an expiry date. If the notebooks remain unpublished? The copyright never expires. Unless the law changes. This is not a big problem for the archives in terms of the Bleek and Lloyd Collection, because the copyright was handed over to us when it was donated.

Section of Plan of Cape Town, Cape of Good Hope, 1854, showing the Orphan House on Orphan and Long Streets (See the full plan)

For Collections where the copyright was not handed over, it gets more complicated as you need to know the creator’s heirs, and their heirs, and their heirs, and so on, in order for anyone to reproduce the material. These are known as orphan works because identifying and locating the rights-holders is essentially impossible.

Many of our Indigenous Language collections include oral histories. The ǂKhomani San/Hugh Brody is one example. The rights of the oral histories do not belong to the people telling their stories. The rights belong to the person responsible for recording the material. Which in this case is Hugh Brody. Obviously that’s a problem, and that’s why research ethics matter so much.

Nigel Crawhall holds up a recorder to record an interview with Ouma Elsie Vaalbooi. Elsie Vaalbooi was a fluent Nǀuu speaker. (See more about the ǂKhomani San)

While quotations and clips of the interviews, and possibly even entire transcripts, may be published, the actual recorded interviews themselves are unlikely to be published. Some of these interviews were recorded as audio and some were videotaped. The former are classed as sound recordings, and the latter as cinematograph films.

This matters, because the duration—and more importantly the expiration—of copyright is calculated differently. For sound recordings, if it isn’t published*, then the copyright never expires. For cinematograph films, it depends on when they were made. For this collection, the copyright will expire at the end of 50 years after creation. So if the interview was filmed in 1997, it enters the public domain on 1 January 2048.

The copyright for this collection was not handed over to UCT. Hugh Brody can assign his rights to the collection to the University in his will, or he can bequeath the material to us (even though we already have it) and unless he says anything to the contrary, that will include the rights. Otherwise the copyright will pass to someone else.

Older material has different rules. The Copyright Act has transitional provisions that deal with the changeover when a previous law is repealed and a new one enacted. Under those provisions, the copyright duration and ownership of older works is governed by the Act that applied at the time they were created. And it’s different for every type of work.

Copyright is complicated, but it’s a complication we can’t ignore if we want to ensure the resources we hold remain accessible to all.

* For a given value of publication, which can be found in s. 1(5) of the South African Copyright Act, 1978.