The role of technology in the historical development of the reproduction right in musical works

The role of technology in the historical development of the reproduction right in musical works

Author: J Joel Baloyi

ISSN: 2411-7870
Affiliations: BJURIS LLB (Venda) LLM (UWC) LLD (UNISA).
Source: Fundamina, Volume 26 Issue 2, p. 233-287
https://doi.org/10.47348/FUND/v26/i2a1

Abstract

This contribution recounts the historical development and expansion of the reproduction right in copyright in response to, and as a result of, technological developments, with a focus on the music reproduction right. It is shown how the very first copyright statute, the Statute of Anne, was enacted in response to the effects of a technological development, namely the invention of the printing press, which had been experienced over some time. To safeguard the interests of rightsholders, the Statute of Anne gave rise to and was itself epitomised by the reproduction right (the right to copy or print). The uncertainty with regard to the question of whether the Statute of Anne applied only in respect of books and other literary works, or whether it also extended to musical works, was resolved in the case of Bach v Longman, which extended the application of the Statute to musical works. It was particularly in the area of musical works that the reproduction right was further developed in the wake of rapid technological developments that emerged at the end of the nineteenth century and have continued into the digital age. This has led to the expansion of the music reproduction right into a multi-pronged right, covering usages made possible by the various technological developments, thus creating increased sources of income for rights-holders. Using a historical and contextual analysis, the contribution recounts these developments and their continuing relevance today.

A history of Malawi’s criminal justice system: from pre-colonial to democratic periods

A history of Malawi’s criminal justice system: from pre-colonial to democratic periods

Author: Lewis Chezan Bande

ISSN: 2411-7870
Affiliations: Senior Lecturer in Law, University of Malawi.
Source: Fundamina, Volume 26 Issue 2, p. 288-336
https://doi.org/10.47348/FUND/v26/i2a2

Abstract

This contribution traces the historical development of the criminal justice system in Malawi, from the pre-colonial period, through the colonial and independence periods, to the contemporary democratic period. It highlights the major political hallmarks of each historical period and their impact on the development of the criminal justice system. The contribution shows that all aspects of the current criminal justice system – substantive criminal law, procedural law, criminallaw enforcement agencies, courts and correctional services – are products of political and constitutional processes and events of the past century. Their origins are directly traceable to the imposition of British protectorate rule on Nyasaland in the late nineteenth century. The development of the Malawian criminal justice system since then has been heavily influenced by the tension and conflict of colonialism, the brutality of one-party dictatorship and the country’s quest for a constitutional order that is based on liberal principles of democracy, rule of law, transparency and accountability, respect for human rights, limited government and equality before the law. To properly understand Malawi’s current criminal justice system, one has to know and appreciate its historical origins and development.

Developing critical citizenship in LLB students: the role of a decolonised legal history course

Developing critical citizenship in LLB students: the role of a decolonised legal history course

Author: Lize-Mari Mitchell

ISSN: 2411-7870
Affiliations: Lecturer, University of Limpopo.
Source: Fundamina, Volume 26 Issue 2, p. 337-363
https://doi.org/10.47348/FUND/v26/i2a3

Abstract

Within the neoliberal ideals of society, social science subjects are battling for their rightful place in curriculums. As a result, legal history courses are being presented by increasingly less universities in South Africa. In the tendency towards a skills-based LLB, higher education institutions are neglecting to acknowledge the immense impact students’ ideologies and critical thinking will have on the future of South Africa. This contribution argues that it is not only possible to deliver competitive graduates, to retain social subjects and to heed the call for decolonisation, but that a transformative, decolonised legal history course is vital to these ideals. The contribution explores the role of such a course in the development of LLB graduates where it strives towards constitutional ideals and social justice. Furthermore, it takes a look at legal history as a form of critical citizenship education, where it is based on the holistic development of students within constant critical self-reflection and the promotion of a common set of shared values. The development of critical citizenship in students are explored by defining this concept, as well as by discussing the manner in which it can be taught and the importance to the so-called born-free LLB student. This study concludes with broad outlines of the manner in which a legal history course would have to be presented within a critical pedagogy to achieve the aims of critical citizenship.

On Florentinus’ definition of Libertas

On Florentinus’ definition of Libertas

Author: Carlos Amunátegui Perelló

ISSN: 2411-7870
Affiliations: Professor of Roman Law, Pontificia Universidad Católica de Chile.
Source: Fundamina, Volume 26 Issue 2, p. 364-373
https://doi.org/10.47348/FUND/v26/i2a4

Abstract

Libertas is one of the main concepts of public life in the Roman world. It has a public content when referring to the freedom of the Republic, and a private implication when it is opposed to slavery. Florentinus’ definition of libertas is quite interesting, because it was given within the context of slavery, although it does not fit that scenario entirely. In fact, it seems more cogent with regard to the public concept of libertas. This contribution analyses this aspect in detail.

Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1

Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1

Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1

Author: Stephen Allister Peté

ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) M Phil (University of Cambridge) PhD (University of KwaZulu-Natal). Associate Professor, School of Law, University of KwaZulu-Natal.
Source: Fundamina, Volume 26 Issue 2, p. 374-423
https://doi.org/10.47348/FUND/v26/i2a5

Abstract

The political economy of colonial Natal was based on a coercive and hierarchical racial order. Over decades, the white colonists struggled to assert their power over the indigenous inhabitants of the colony, to force them off their land and into wage labour in service of the white colonial economy. This process resulted in ongoing resistance on the part of the indigenous population, including a series of rebellions and revolts throughout the colonial period, which were met with force by the white colonists. White colonial ideology was shaped by the violent and adversarial nature of the social, political and economic relations between white and black in the colony. It was also influenced by the broader global context, within which colonisation was justified by racist variants of the theory of Social Darwinism. Driven by a strange mix of deep insecurity and fear on the one hand, and racist paternalism on the other, the white settlers of colonial Natal developed a variant of white supremacist ideology with a special flavour. Nowhere was this more apparent than in their near obsession with flogging as the most appropriate manner of dealing with African offenders in particular. By closely examining a series of public debates that took place in the colony of Natal between 1876 and 1906, this contribution seeks to excavate the various nuanced strands of thinking that together comprised the ideology of white supremacy in the colony at that time.

“What’s past is prologue”: an historical overview of judicial review in South Africa – part 2

“What’s past is prologue”: an historical overview of judicial review in South Africa – part 2

Author: D M Pretorius

ISSN: 2411-7870
Affiliations: BA LLB (Stell) BA (Hons) LLM PGCE (SA) PhD (Witwatersrand). Partner: Bowmans, Johannesburg.
Source: Fundamina, Volume 26 Issue 2, p. 424-519
https://doi.org/10.47348/FUND/v26/i2a6

Abstract

This contribution explores the historical origins and development of judicial review in South Africa, as an indication of shifts in relations between – and of the relative legal and political powers of – the three branches of state. It also provides bibliographical details of sources chronicling these historical processes. The first part focused mainly on constitutional review, namely the power of the law courts to test the validity of statutes against constitutional criteria. This second part analyses the historical development of administrative law, especially the common-law evolution of judicial review of the decision-making processes of organs of state, and how that process unfolded reciprocally with political shifts in twentieth-century South Africa. There is also a synopsis of the introduction of administrative law as a discrete subject in South African law schools. Finally, this contribution briefly explores historical aspects of the role of interpretation of statutes in the context of administrative law, and briefly touches on special statutory review as distinct from common-law review.