The monkey-selfie and copyright

“Selfies” (the official Oxford word for 2013) have become such a phenomenon that a recent hoax, claiming that the American Psychiatric Association classified an addiction to “selfies” as a mental disorder called Selfitis, went viral. Whether “selfies” are narcissistic or a basic desire to feel noticed, appreciated or recognised, this phenomenon has now also extended to the animal kingdom to the extent that a Crested Macaque monkey is involved in litigation regarding his copyright in his “selfie”.

On 21 September 2015, animal rights activists and non-profit charity, People for the Ethical Treatment of Animals (PETA), filed a complaint of copyright infringement against David John Slater, a wildlife photographer and sole director of Wildlife Personalities Limited, on behalf of Naruto, a 6-year old male member of the Macaca nigra species.

This complaint followed on Slater’s visit to the Tangkoko Reserve on the island of Sulawesi, Indonesia in 2011. He wanted to take photographs of the Macaque monkeys in their natural habitat and left his camera, positioned on a tri-pod, unattended for a moment when Naruto took a couple of “selfies” when fidgeting with the camera. One of these “selfies” has since gained international fame as the much recognised “Monkey Selfie” and in 2014 was published by Slater’s Wildlife Personalities in a book in which Slater and Wildlife Personalities are identified as the copyright owners of the monkey “selfies”.

PETA, on behalf of Naruto, argues that Naruto is the lawful copyright owner of the disputed “selfies” because the “selfies” resulted “…from a series of purposeful and voluntary actions by Naruto, unaided by Slater, resulting in original works of authorship not by Slater, but by Naruto.” and seeks an order permitting PETA to administer and protect Naruto’s rights in the “Monkey Selfie”, on condition that all proceeds are used to the benefit of Naruto and his family.

Although any claims of authorship by species other than humans are novel under the United States Copyright Act 17 U.S.C. § 101 et seq., PETA is arguing that this section is sufficiently broad enough “…to permit the protections of law to extend to any original work, including those created by Naruto.

PETA base their argument on allegations that macaque monkeys are highly intelligent, capable of advance reasoning and learning from experience, that they have stereoscopic vision with depth perception and are vision dominant. Like humans these monkey apparently also have opposable thumbs with the ability to move their fingers independently. Naruto, was further allegedly accustomed to observing cameras being handled by humans to the extent that he understood the relationship between pressing the shutter release and the change to his reflection in the camera lens. In summary: Naruto seems to have known exactly what he was doing. Therefore, PETA opines, Naruto voluntarily and purposefully authored the original “Monkey Selfie” and must his copyright be protected from Slater’s exploitation thereof and false claims of copyright ownership.

However, not everyone supports PETA’s view. The Wikimedia website where the “Monkey Selfie” is available for download specifically states that:

This file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.”

This echoes the US Copyrights Office’s (USCO) 3rd edition of their Compendium of US Copyright Office Practice, updated in the aftermath of the monkey “selfie” debacle stating that:

“…an animal, ghost or divine being cannot hold copyright over a picture.”

Copyright protection for human authors, to the exclusion of non-human authors seems to be the norm rather than the exception in most countries. Although merely non-binding guidelines, the said USA compendium clearly states that works that lack human authorship are not copyrightable. The United Kingdom is less clear in holding the view that a product cannot be the result of a fluke, but must be the result of a conscious mind and if a photographer made a large contribution to the making of the creative work, courts must makes the final decision regarding authorship and copyright. Germany’s Copyright Act (UrhG) No.5 Section 2 and 72 determines that works must owe their origin to a human being for it to be copyrightable and must adhere to a certain threshold of originality. Although Indian laws stipulate that copyright vests with the author of the work (unless the work was created by an employee or on commission) and further specifically stipulates that animals cannot be considered as legal persons to claim ownership.

In terms of the South African Copyright Act 98 of 1978 an author of an artistic work, which includes photographs:

…means the person who is responsible for the composition of the photograph;”

Further, in terms of Section 3(1) of the Copyright Act copyright shall only be conferred in a work eligible for copyright if the author thereof is at the time of the making of the work a qualified person, which is defined as

…in the case of an individual, a person who is a South African citizen or is domiciled or resident in the Republic;”

“Person” is unfortunately not defined in the Copyright Act, but according to the Oxford Advanced Learner’s Dictionary a person is “A human being regarded as an individual”.

Subsequently, even if Neruto was permanently residing in South Africa, as an animal, he will never be regarded as a qualified person in terms of the South African Copyright Act, which is a statutory requirement for copyright to vest in an author.

In conclusion: in South Africa the copyright in all monkey “selfies” and “elfies”, as the Elephant “selfie” that was taken by a hungry elephant in Koh Phangan with a GoPro camera which he mistaken for food is known, will not vest in Mr monkey and his creative partners, but will in all probability, as stipulated by Wikimedia, fall in the public domain.

by

Marietjie Botes
marietjie@dyason.co.za

A sneak peek into the duties of trustees

What my rubric lacks in appeal my dithyramb makes up for.

It is hackneyed in our law that trustees can only exercise only those powers bestowed expressly or tactility upon them by the trust instrument, and the trustees cannot assume nor create powers not bestowed upon them. A trustee is written to hold a fiduciary duty; a duty he assumes in his capacity as one who holds and controls property of another and one who acts in utmost good faith. In Hofer v Kevitt 1996 (2) SA 402 (C) the court held that a trustee’s fiduciary duty originates from the trust instrument at hand. De Waal in the “Wysiging van ‘n Inter Vivos trust” 1998 TSAR 326, as quoted in Du Toit, argues that a trustee’s fiduciary duty arises from the office of trustee and not from the trust instrument for placing the trustee in such an office. With appreciation of the above argy-bargy it is common cause however that a trustee has a fiduciary duty owed to the beneficiaries regardless of where the duty originates from.

The common law, though not decrepit, is affirmed in section 9 of the Trust Property Control Act 57 of 1988. Section 9 indicates that a trustee shall in the performance of his duties and exercise of his powers act with the care, diligence and skill which is reasonably expected of a person who manages the affairs of another. A trustee in the execution of his duties is to be independent and is to exercise an independent opinion in the running of the trust. Therefore every single trustee is to have an independent opinion, and when jointly administering the trust with the other trustees, the trustees are to exercise their independence in opinion.

Section 11 sets out the trustee’s obligations when administering the trust, which duties are expatiated upon in Cameron et al (Honore) as: a duty to open an account, duty of care, duty of impartiality, duty to keep accounting books, duty to account, duty to distribute trust income and capital, and duty to keep trust documents, amongst others. The court in the matter of Boyce NO v Bloem 1960 (3) SA 855 (T) held that the trustees must act without delay, in the execution of their duties. The trustee in essence champions the interests of the beneficiaries, and when acting in the role of trustee he ought to act promptly as per his duties.

Duty of care

Care is specifically referred to in section 9 of the act. The trustee, based on this duty, is obliged to conduct the administration of a trust in utmost good faith, with a level of care expected of someone who manages the affairs of another. A trustee’s role in the trust is one of a bonus et diligens paterfamilias, and this role is one premised on great trust. The people for whose benefit the trustees administer the trust ought to have confidence in the trustees with regard to the execution of their duties and this confidence is boosted by knowledge of the duty of care which rests on the trustees.

Duty to be impartial

Under this duty trustees have to avoid conflict of interest between their personal interest and their official duties. The trustees are obliged to treat beneficiaries impartially. This duty however does not imply that the trustees are barred from differentiating between the beneficiaries as per the dictates of the trust instrument. Differentiation does not necessarily interpret to impartiality.

The duty of impartiality exists also in the instance of a discretionary trust. In Schaefer and Nagel NNO v Estate Petzall 1966 (3) SA 769 (W), the court held that the trustees in exercising their discretion, could in awarding income to the two children differentiate between them as the testator would have done according to the individual needs of the children rather than on the basis of equality. The reference however by the court in the Schaefer-matter to what the testator would have done, may be misleading. The trustees are not required to do what the testator/ founder would or could have done, they are required to act with care, diligence and skill required of someone holding and controlling assets for the benefit of someone else.

Duty to keep trust documents

This is as per section 17 of the Trust Property Control Act, which provides that the trustees may not destroy trust documents without written authority from the Master of the High Court before the expiration of 5 years after the termination of the trust. This provision protects beneficiaries from trustees wanting to destroy documents and later indicating that they had records of proper administration but same has since been destroyed. It also protects trustees to enable them to perpetually have trust documents as the reference point in instances that they need to bring proof when called upon.

Duty of accountability or duty to account

In Land and Agricultural Bank of South Africa v Parker 2004 All SA 261 (SCA) it is stated that a “core idea of a trust tends to ensure careful scrutiny of transactions designed to bind the trust…”.This quote speaks to the issue of accountability. It is inferred from the attitude of the court, as reflected herein that the core idea of a trust involves perpetual accountability of transactions involving the trust.

The case of Doyle v Board of Executors [1999] 1 All SA 309 (C) engaged vigorously the duty to account. The court indicated that the right to account is made up of two distinct concepts, which are both substantive and procedural. The court proceeded to expatiate the concepts to indicate that on the one hand the duty to account is a right and on the other hand it is a remedy. The interpretation of the duty is to be assessed taking into account that the duty is both substantive and procedural.

Fiduciary rights of trustees

Trustees have a duty of care, rooted under the umbrella of ‘fiduciary duty’ which is commonly agreed to extend to trustees duties. In the Hofer-matter, fiduciary duty was described as a concept with no clearly defined meaning. In the Land Agricultural Bank of South Africa-matter it was stated that a trustee is appointed and accepts an office to exercise responsibility over property on behalf of and in the interest of another.

The court in Phillips v Fieldstone Africa (Pty) Ltd 2004 (1) All SA 150 (SCA) stated that the essential requirements for the establishment of a fiduciary duty is that one party must stand towards another in a position of confidence and good faith which he is duty bound to protect. It is significant to note that the South African courts have extended the trustees’ fiduciary duty beyond the ambit of the English law’s duty of loyalty strictu sensu.

In the Phillips-matter it was further stated that the existence of such a duty, its nature and extent are factual matters to be deduced from the consideration of substance of the relationships between the relevant parties, and the relevant circumstances affecting the operation of the relationship. The nature of the relationship between a trustee and a beneficiary is one of trust, one better defined by a fiduciary duty.

Cognizance should be given to the veracity that the above mentioned, and briefly discussed, duties of trustees are not the only duties entrusted upon trustees. Every trustee should familiarize him or herself with the Trust Property Control Act and the common law duties to fully appreciate the purview of the office of trusteeship and the intertwined duties.

by

Gastavus Chabalala
gastavus@dyason.co.za

Medical certificates from traditional healers

Who may sign Medical Certificates?

According to section 23(2) of the Basic Conditions of Employment Act 75 of 1997:

“…the medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.”

A medical practitioner is described in the said act as:

‘‘. . . a person entitled to practice as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974);”

The following professionals are considered to be medical practitioners:

All medical practitioners, including dentists, psychologists with a master’s degree in Educational, Counselling or Clinical Pschycology, registered with the Health Professions Council of South Africa are considered to be medical practitioners.

The Basic Conditions of Employment Act 75 of 1997 makes reference to the Allied Health Service Professions Act 63 of 1982. In order to issue medical certificates the practitioners mentioned in this act must be registered with the Allied Health Service Professions Council.

If a medical certificate is issued by the following practitioners an employer must accept it as proof of incapacity in terms of the Basic Conditions of Employment Act:

  • Acupuncturist,
  • Ayurveda practitioner,
  • Chinese medicine practitioner,
  • Chiropractor,
  • Homeopath,
  • Naturopath,
  • Osteopath,
  • Phytotherapist or
  • Unani-Tibb practioner.

Traditional Healer Certificates

Unless employers are bound by a collective agreement to accept such certificates, employers are not obligated to accept certificates from traditional healers. Because of the lack of public participation before the act was promulgated it caused the Traditional Health Practitioner Act of 2004 to be declared unconstitutional in 2006. The 2007 act was approved in 2009 but has not yet been promulgated completely. Traditional healer certificates with practice numbers are simply an indication that the traditional healer registered with the Interim Council established in 2005 (which no longer exists), or with an association.

Kiviets Kroon Country Estate (Pty) Ltd v Mmoledi & others (875/12) [2013] ZASCA 189

The issue of traditional healer certificates has been a topic of much controversial debate regarding whether an employer should accept the medical certificate of a traditional healer as being a valid medical certificate. Some clarity was provided in Kiviets Kroon Country Estate (Pty) Ltd v Mmoledi & others (875/12) [2013] ZASCA 189 in which case the question of whether a traditional healer’s certificate can be equivalent to a medical certificate for the purposes of sick leave was answered by the Supreme Court of Appeal (SCA).

Mmoledi, a senior chef at Kievits Kroon Country Estate, requested five weeks unpaid leave from her employer and provided two letters in support of her application of unpaid leave.The first letter had the name and contact details of her traditional healer and stated the following:

“This serves to certify that Johanna Mmoledi was seen by me on 13-01-07 and diagnosed to have perminisions of ancestors. He/she under my treatment from 13-01 to 8th July 2007. He/she will be ready to assume work on 8-07-2007.“

The second letter read as follows:

“Preparation of graduation ceremony of Johanna Maite Mmoledi” and read: “I hereby inform you of the graduation of the abovementioned patient. I am asking you to please give her days from the 4th of June to the 8th July 2007 to complete her initiation school final ceremony to become a traditional healer.”

Mmoledi alleged that she had been seeing visions of her ancestors and as a result thereof she needed the time off in order to be healed by her traditional healer. Her leave application was nonetheless declined by her employer on the basis that the letters from the traditional healer were not from a medical doctor. Mmoledi ignored her employer’s refusal to grant her leave and still took time off from work.

As a result of her conduct she was summoned to a disciplinary hearing which resulted in her dismissal. She felt that she was unfairly dismissed and referred her dismissal to the CCMA.   The arbitrator was of the opinion that her actions was justified because of the circumstances which was beyond her control. The estate wanted to take the award made by the CCMA on review, but the Labour Court found that the award was rational and therefore dismissed the estate’s application. The estate then approached the Labour Appeal Court (LAC) for relief

The estate argued that the commissioner shouldn’t have raised the role of traditional healers to the roll of medical practitioners, due to the fact that traditional healers were not regulated by a professional council. The estate opined that this could open the floodgates to unprofessional and unethical behavior and could possibly turn the work environment into total chaos. The estate was further of the opinion that the commissioner did not properly consider case law where it was held that a certificate issued by a traditional healer could not be regarded as an acceptable certificate.

The LAC dismissed the appeal and held that the commissioner’s decision was supported by valid reasons and that that the reasoning process of the commissioner could not be criticized or attacked. It was held that the commissioner was alert to the issues and had properly applied his mind to the information before him. The LAC further stated that traditional practices and beliefs are recognized by the Constitution and should not be undervalued but rather accommodated. After the LAC dismissed the appeal the estate took the matter to the Supreme Court of Appeal (SCA).

It was pointed out by the SCA that the documents from the traditional healer were important because the employee’s argument at the CCMA was that the certificate should have been interpreted as a sick note equivalent to a medical certificate, while the view of the employer was that the employee’s dependency on the traditional healer’s letters was misguided because it was not a valid letter from a medical practitioner as defined and required by the Basic Conditions of Employment Act.

The SCA noted that the employer attested that if Mmoledi had produced a certificate from a medical practitioner, instead of a traditional healer, they would not have dismissed her. The employer regarded the certificate from the traditional healer as worthless and therefore rejected it as proof of her illness.

The SCA held that the employer may well have accommodated the employee’s request if the employer understood the note to be equivalent to a medical certificate of a Western-trained medical practitioner, or if the employer could have asked the employee to explain the meaning and its importance, instead of immediately rejecting it. The SCA dismissed the appeal with costs.

Traditional Healer Certificates – Valid or Invalid?

In light of the Kiviets Kroon Country Estate-matter employers can no longer completely exclude traditional healer certificates, but should rather consider each matter based on its own merits.

However, traditional healer certificates issued as medical certificates may be reject by employers to grant paid sick leave to employees or to substantiate the employee’s absence from work, as some employers may be of the opinion that traditional healers do not necessarily have the medical knowledge to diagnose and treat regular medical conditions.

According to law employers are not obligated to accept traditional healer certificates to grant paid sick leave or to justify an employees’ absence from work, as the Traditional Health Practitioners Council of South Africa is not yet operative. Traditional healers can therefore not yet register as members.

Employees with this cultural background will justly claim that it is their cultural and spiritual belief to visit these practitioners for health-related illnesses and that it is more economic for them to go to a traditional healer than to seek advice from a Western-trained medical practitioner. It is very important to realize that those who do not endorse or believe in the authenticity of others’ cultural beliefs should not reject these beliefs.  Disregarding a traditional healer as incredible is subjective and our courts may see this as being unfair.

It is advisable that employers should accommodate their employees to ensure fair labour practices in the work environment. Employers need to create their own policies for dealing with these issues such as adapting sick leave policies to accommodate traditional healer certificates fairly.

by

Cindy Horn
lucinda@dyason.co.za