Pictures of Owen Dean and Leslie Downie: provided; cover of book: Juta Publishers
Copyright for Writers: A Practical Guide
Owen Dean & Leslie Downie
Juta Publishers
ISBN: 9781485156628
- Owen Dean and Leslie Downie discuss their latest publication with Naomi Meyer.
Just before we part ways at the coffee shop, Owen Dean says: "Writer’s block? I don’t suffer from this. If I think about something, I write about it." It doesn’t come as a surprise to me. Dean is the author of The handbook of South African copyright law, the most authoritative academic text on the subject in the country, and he has spent 50 years practising copyright law.
I met Dean and his co-author, Leslie Downie – both are attorneys who are no longer in active practice but who still consult from time to time, and both are lovers of literature – for coffee and a conversation about their new book, Copyright for writers: A practical guide, published by Juta. It’s written specifically for writers – people who spend their creativity on the page. In other words: It is not necessarily written for anyone who thinks about the law and copyright law behind the writing of fiction.
Two lawyers who love books
Dean and Downie met through mutual legal friends. Both have spent most of their careers in law. Both share a love of books and literature. (Even though many writers never think about copyright law, it is not so unusual for lawyers to write; we discuss a copyright case involving Charles Dickens in South Africa during our conversation. Dickens worked as a law clerk for a while, and was interested in and aware of the workings of copyright law; a court case in South Africa took place when Great expectations was published in instalments without permission in an Eastern Cape newspaper during the 1800s.)
Downie is the founder of the Indie Authors Rise Up® fringe festival, a festival for self-published writers held every August in the Helderberg. Dean is emeritus professor of mercantile law at Stellenbosch University, where he held the Anton Mostert Chair of Intellectual Property Law. He was the attorney who won a court case against Walt Disney, securing payment for the South African songwriter behind “The lion sleeps tonight”. In intellectual property circles, this makes him a pop star. Owen Dean talks about copyright the way other people talk about sport. Which is exactly the comparison he draws when I ask why writers should bother learning the law at all.
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"If you want to play a tennis tournament, you have to know how to serve," he says. "Copyright is the rules of the game by which writing is played – entering by the rules of the game, while not knowing what to do, is not good. You have to know the ground rules." Both understand that most writers don’t pay much attention to copyright law – they’re focused on the books themselves. Copyright law is, however, a matter that can’t be ignored.
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"If you want to play a tennis tournament, you have to know how to serve," he says. "Copyright is the rules of the game by which writing is played – entering by the rules of the game, while not knowing what to do, is not good. You have to know the ground rules." Both understand that most writers don’t pay much attention to copyright law – they’re focused on the books themselves. Copyright law is, however, a matter that can’t be ignored.
Copyright for writers: A practical guide – who it’s for, and how it came to be
"All writers," Downie says simply, when I ask who the book is written for.
"We tried to write an accessible book," Dean adds, "not using legal language."
Downie nods. "The book is directed towards self-publishing authors, and also writers who publish with publishers – so they understand their contracts. When you’re given a contract by a publisher, you have to understand what you’re signing. We wrote the book for both these types of writers."
The idea itself was born at Downie’s festival. She invited Dean to speak at the second festival. "I told them ... the crowd at the festival ... about Echoes of injustice," he says, tapping the book lying in front of him, his own: "the ’Lion sleeps tonight’ case." He continues, recalling that first festival talk: "I told them about the case and watched the audience.” The writers were interested to hear more.
This was one of the inspirations for the book. They persuaded the law firm Spoor & Fisher to get involved and to sponsor legal talks for the festival, and the conversations kept going from there.
Attorneys and writers
Leslie Downie talks about her own background: "I completed a BA Law at Tukkies and took English as an extra major, then nearly moved over to English literature for my post grad," she tells me. Twenty years ago, she got involved in writing a collaborative book, which is now available in 20 university libraries around the world, about collaborations in writing.” She’s since worked in land information systems and has self-published other bits and pieces – both legal and fictional – besides handling the festival organising. She doesn’t see writing, exactly, as her thing. "Collaborating – I like collaborating," she says.
"Well, I have written a few other books, not only academic," Dean says, when I turn the question on him. Echoes of injustice tells the Walt Disney story and shares about his professional life besides. He lifts up a copy of The summit syndrome. "In fact, I wrote a sequel to this book, as well." He starts talking, and for a moment he’s not Dean the academic anymore. “Creating works, and to change into writing a novel, is quite a change from what I usually write. But my legal background helped me to write fiction. A lot of our litigation and application proceedings are all written affidavits. If people discuss the subject matter, it’s not so different from writing fiction. If you write a legal document, you have to get into their shoes and write from their perspective. That gave me exposure in assuming different personalities when I had my characters speaking."
The novel grew out of real bitterness. "A bad guy got away with murder," he says. The case was settled – but not for him. He still wanted to tell the story, without exposing himself to a defamation claim. So, The summit syndrome fictionalises it: a sued protagonist, a plot built from a combination of fact and invention, the real people never named. "I even thought this could have been turned into a movie," he says. "Everything is there – the beautiful city of Cape Town. But the publishers did not want to publish this. So, I published this on my own. I had to get it out there."
Downie nods and adds, "But the satisfaction of having finished the story – I hear this from everyone at the festival, too. The indie writers. This is part of the enjoyment for the writer."
"Yes," Dean agrees. "The finishing of the writing process. So important.”
Rights, not riches
So, is there a connection between writing and financial reward? Dean and Downie: “No matter whether they enjoy writing, they have at the back of their mind that they can make some money."
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So, is there a connection between writing and financial reward? Dean and Downie: “No matter whether they enjoy writing, they have at the back of their mind that they can make some money."
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"Authors who write books want to sell the books," Dean says. "They need to understand a few basic things. For example, they need to distinguish between assigning their rights and their licensing agreements. Not the same thing."
Downie adds a point she clearly returns to often at her festival: “Copyright,” she says, "is one of the fields where the little guy and the big guy are treated the same." You don’t need capital or standing to hold copyright. You need to be able to prove the work is your own. That’s all.”
Who counts as an author, and what "original" means
Copyright, in the book, moves through the definitions, identifying the author and then the requirements: originality, being a "qualified person" and material form.
Dean explains the importance of the Berne Convention: "The Berne Convention is the international treaty that lets an author from one signatory country enjoy copyright protection in another, regardless of different standards of originality.”
Downie: "A qualified person has got nothing to do with your education level."
What is originality, nothing to do with creativity? Dean: "Originality is the most fundamental aspect of copyright. Crucially, it isn’t the same thing as novelty. A work doesn’t need to be groundbreaking or never-before-seen. It needs to be your own – your ‘sweat of the brow’. A copy can never be original, however skilfully made; a technique alone can’t earn you originality either.”
The South African standard for originality is, in fact, low. Case law has found copyright in the inserts on medicine packaging, in a fashion design adapted from an existing photograph, and in the technical drawings for motor vehicle valves. A field diary for bank managers, by contrast, didn’t qualify – it was too commonplace.
The lesson for a working writer isn’t to memorise the cases. It’s that the bar is more forgiving than most people assume, provided the work is genuinely, demonstrably your own. Writers must produce their own work.
Infringement and its exemptions get their chapter, too. Fair dealing, in South Africa, not fair use: "That’s an American thing!"
Adaptation, done properly, is fine. Adapt Romeo and Juliet – no problem, it is in the public domain. Start with consent, and you can make almost anything your own.
The AI question
Inevitably, we get to artificial intelligence. "AI is just a massive database," Dean says. The question, for him, is entirely about how a writer uses it. There’s a real line, he argues, between AI as research tool and AI as writer; actually, a generator of content: "AI cannot be used where you are the secretary. Computer-assisted and computer-generated have to be distinguished." The underlying principles haven’t changed just because the technology is new; copyright still rests on human creation. Feed AI three sentences and ask it to write from there, and there’s no originality to claim. No sweat of the brow. "My advice for authors is to stay away from AI," he says.
"No AI in this work," Downie echoes, pointing at the cover of Copyright for writers.
Dean: "If you use AI to discuss your ideas, fine. But remember, it may get fed into the system."
What if a writer is accused of using AI in his writing, but it is not true?
The practical thing to provide, Dean explains, is proof. If your originality is ever challenged, you have to be able to demonstrate your own effort – which means keeping records as you go. "The more you keep a record of hours spent and what you have done," he says, "the more you can produce what you’ve done by sweat of the brow, when you have to come to prove originality." Use AI-generated material and you’re not just risking the copyright protection, you’re limiting your own ability to prove the work, and therefore to profit from it. "Work of the spirit," he says, "is a personal creation, not to be contaminated with outside material.”
"Also," Downie adds, "respect other people’s writing. This book, Copyright for writers, is our own work," she repeats. "No word from this book was generated by artificial intelligence."
"I don’t trust AI," Dean agrees. "We didn’t feed AI anything when we wrote this book. Warn them – the writers: If you use AI, your work might not be protected."
Their advice to writers
At the end, I ask each of them for one piece of advice.
"Be realistic," Dean says. "Don’t be totally motivated by money. Enjoy doing this."
"Don’t ask your spouse or family members to be your first readers,” Downie says. Find an objective person instead. "And never underestimate the reward of finishing the book."
I ask, once more, for a final word.
"Warn them," Dean repeats. "If you use AI, your work might not be protected."
"Don’t do it," Downie says. "Respect your own work. Respect your fellow writers’ work."
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Copyright for writers: A practical guide by Owen Dean and Leslie Downie is published by Juta. In the book, you’ll find: a simple overview of copyright law; definitions; identifying of the author; the requirements for copyright (originality, qualified person, material form); copyright and moral rights; infringement; exemptions like fair dealing (not fair use – that’s used in the USA); using the works of others; disposing of copyright; artificial intelligence and writing; as well as a sample licensing agreement and assignment to use to give or obtain copyright consent.
Also read:
Book discussion and interview on the Juta publication: Copyright reform or reframe?
Gedagtes oor die effek van KI ná die Sewende Etienne van Heerden Veldsoirée