While SAHA provides a key repository for a wide range of archival materials from the South African struggle period, we are not the copyright-holders of these items. Therefore, we cannot issue copyright permission for reproduction of most archival materials held within our collections.
SAHA is committed to identifying rightful copyright holders to archival materials in our collections. However, the question of copyright on struggle materials remains a highly contested and uncertain arena. Our current work with the SAHA poster collection provides a telling case study. The copyright problems raised by the poster collection, as delineated below, apply to many of our archival collections.
The poster collection...
It has proven difficult - if not impossible - to identify copyright-holders for most of these images. The vast majority of these graphics were made anonymously, by collectives rather than individuals, working with commonly agreed symbols and words, with intent for mass public distribution. "Creative origin" cannot be determined. Many works were produced under the aegis of organisations which were illegal and many of which are now defunct. Moreover, the Copyright Act of 1978 grants intellectual property rights over artworks to organisations only when the organisation commissioned and paid for the works or formally employed the artist(s). Most, if not all, of the poster-makers volunteered their artistic services free of charge, and in the name of cultural activism. So, these organisations (even when identified) may not own intellectual rights to the artwork either. Many of the artists involved in making posters believe that in principle no copyright should be claimed or assigned for these works, given the notions of collective conception and public use which underpinned their creation. The provisions of the copyright law are currently under review in order to address these and other shortfalls.
Below is SAHA's current position on the use of struggle posters and graphics, given the nebulous state of copyright law. Comments and feedback are welcome.
Acknowledgement and accreditation...
SAHA believes it is a basic part of our research function to ensure due recognition for creative and intellectual origination. We are in the process of identifying all those involved in the creation, production, and distribution of these items, on both an organisational and individual level.
However, extensive on-going research has proved unable to identify individuals or organisations who can legitimately claim the vast majority of struggle posters and graphics as private intellectual or creative property.
To facilitate the public use of this rich cultural heritage, SAHA has initiated a process to seek support from all stakeholders (both individuals and organisations) for the open use of these works for non-profit, heritage and educational use, without threat of copyright infringement.
We further ask all those who participated in the creation, production and distribution of these works to come forward to record their role in this process, so that their contributions will be acknowledged in the historical record. Such acknowledgement is not intended to lay the basis for a later claim on the work as private intellectual property.
To advance this, we encourage anyone with information about these artworks and their creation to contact us; and any person involved in the creation of such works to sign the in principle agreement on public non-profit use.
Where the copyright owner cannot be identified...
Based on extensive research, we believe that for most of these works, creative and intellectual "ownership" as conceived in the current legislation cannot be assigned or determined.
Given this lack of legal, logistical and technical clarity on copyright ownership of these posters, SAHA believes that use of these works for non-profit, heritage, educational and public cultural development purposes should not constitute an infringement of copyright law. Individuals or parties interested in using these materials for such purposes may wish to consult their own legal advisers on the matter before proceeding.
Where the copyright owner can be identified...
In the very few cases where the copyright holder can be identified for a work in the collection, SAHA will direct those seeking permission to the rights holder.
Where persons can establish a legal claim to ownership of copyright for specific posters or graphic works, we ask that they inform us of these claims. SAHA is happy to acknowledge instances of valid, demonstrated copyright ownership. However, we cannot ourselves guarantee or undertake the validation of such claims.
For those wishing to use these graphics for profit, commercial use, or for private promotion, we strongly recommend seeking further legal advice on the issue of copyright - permissions, and the extent of "due diligence" required for use of these works without prior permission.
Further discussion and resolution...
In the long term, SAHA hopes to engage in a broader debate with all stakeholders on the revision of copyright laws to accommodate both the rights of creators and the conditions of collective creation and public use for these works. Persons wishing to participate in these discussions, please contact Catherine Kennedy