Keeping up with the developments in technology: A look into the music industry and the copyright laws in Southern Africa

Keeping up with the developments in technology: A look into the music industry and the copyright laws in Southern Africa

Author Malebakeng Agnes Forere

ISSN: 2521-2591
Affiliations: Associate Professor, University of the Witwatersrand
Source: South African Intellectual Property Law Journal, 2019, p. 31 – 52

Abstract

Focusing on South Africa, Botswana and Lesotho, this article examines how the music industry and the copyright laws in Southern Africa address the impact of technological developments on the user and content owners. In the case of the music industry, the article finds that technology has moved away from the CD players to USB ports, yet the music industry has not kept up as music is still sold on CDs. In addition, the article finds that there is a shift away from broadcast to webcast and on-demand platforms, yet there is little southern African content on streaming platforms, which then forces the consumer to resort to international production. Turning to law, the article finds that in order for consumers to continue enjoying music in their vehicles and on laptops, they have to shift formats; consequently, the article considers whether private copy exception or format shifting is allowed, and whether the rights owners are entitled to compensation against private copy exception. The findings indicate that while Botswana has a levy system, South Africa does not, and Lesotho does not create private copy exception at all. Further, the article looks at the interface of private copy exception and technological protection measures (TPMs) and finds that while Botswana does not allow circumvention of TPMs to make a private copy, South Africa does, thereby creating lawlessness. Lesotho does not have provisions on TPMs. Regarding streaming or on-demand platforms, the article finds that online music service providers exercise the ‘making available right’ of content owners and determines whether the laws in the three sampled countries protect the right of making available.

Patents and the traditional bio-innovation predicament: Critical perspectives

Patents and the traditional bio-innovation predicament: Critical perspectives

Author Tigist D Gebrehiwot

ISSN: 2521-2591
Affiliations: Post-Doctoral Fellow of the South African Research Chair in Law, Society and Technology, College of Law, University of South Africa
Source: South African Intellectual Property Law Journal, 2019, p. 53 – 70

Abstract

The aim of this paper is to analyse the application of intellectual property (IP) law in agricultural innovation. Today, global agriculture and food industries are changing due to new technological development. This study evaluates the complex relationships underlying forces operating between traditional bio-innovations and modern technologies. It is important to note that society is currently faced with both technology and knowledge transfer, while the market-driven intellectual property law operates on an individualistic and permission-based platform aimed at protecting the individual’s right of ownership in his or her knowledge. The application of patent law in agriculture is expanding apace and beyond all expectation. This notwithstanding, or possibly for this very reason, the courts across the world are by and large struggling to establish an appropriate legal framework for agricultural innovation. This is significant because agriculture plays a key role in the economic development of society.

The effect of copyright term length on South African book markets (with reference to the Google book project)

The effect of copyright term length on South African book markets (with reference to the Google book project)

The effect of copyright term length on South African book markets (with reference to the Google book project)

Author Paul J Heald

ISSN: 2521-2591
Affiliations: Richard W. & Marie L. Corman Research Professor, University of Illinois (USA) College of Law Fellow (2018), Stellenbosch Institute for Advanced Study (STIAS), Stellenbosch University
Source: South African Intellectual Property Law Journal, 2019, p. 71 – 98

Abstract

Research on the effect of copyright term extension in the United States demonstrates the negative effect of protection on the availability of new bound editions, ebooks, and audiobook editions of older works. Among the most popular titles, copyright protection is also associated strongly with higher prices in the US. Another recent study documents the negative effect of copyright term extension on titles available for e-lending in the US, Australia, New Zealand, and Canada. The present study measures the effect of copyright on the availability of bound volumes and ebooks in South Africa, a jurisdiction currently under pressure to extend its term of copyright beyond the current life-plus-fifty. Monopoly pricing effects in ebook markets in South Africa, and by analogy to other life-plus-fifty jurisdictions, are also shown. Finally, the article measures the extent to which the Google Books Project improves the availability of books in South Africa.

Jurisdictional issues in intellectual property disputes in Zimbabwe

Jurisdictional issues in intellectual property disputes in Zimbabwe

Author Charlene Musiza

ISSN: 2521-2591
Affiliations: PhD Candidate Department of Commercial Law, Intellectual Property Unit Faculty of Law, University of Cape Town
Source: South African Intellectual Property Law Journal, 2019, p. 99 – 115

Abstract

This article discusses the various approaches to the resolution of intellectual property disputes in use across the world, with specific reference to Zimbabwe’s approach. A country decides whether IP disputes are best resolved in generalist courts or specialised courts. There is a trend toward setting up specialised courts to adjudicate disputes for specific IP rights; these can be courts of first instance or appellate courts. In 2017, Zimbabwe established the Intellectual Property Tribunal as a specialised division of the High Court. The Intellectual Property Tribunal Act (Chapter 26:08) provides the jurisdiction of the tribunal. The challenge, however, is that the statutes regulating the different IP rights also contain jurisdictional provisions. The situation can create challenges in the resolution of IP disputes.

Social media, online communications and defamation in the workplace: A puzzle for liabilities?

Social media, online communications and defamation in the workplace: A puzzle for liabilities?

Author Caroline Joelle Nwabueze

ISSN: 2521-2591
Affiliations: Post doctorate research fellow under the South African Research Chair in Law, Society and Technology, College of Law, University of South Africa; Senior lecturer at the Faculty of Law of Enugu State University of Science and Technology.
Source: South African Intellectual Property Law Journal, 2019, p. 116 – 142

Abstract

The online interaction of individuals and exchange of user–generated content or information has transformed the way people work and communicate in the 21st century. Social media, so defined, includes microblogging (Twitter®), social networking (LinkedIn®, Facebook®) multimedia (Flickr®, YouTube®). The media community in the digital age has noticed dramatic changes in the way content and information are created, consumed and shared. This is particularly noticeable in the workplace, where social media enables brand marketing and aids in recruiting and professional networking. However, online statements can also tarnish the company’s reputation. Despite all the advantages, employees’ online communications, especially bad-mouthing, may raise ethical issues. This paper examines the liability of the employee, as author of a defamatory statement related to the employer, when his/her communication is accessed online. The employee’s right to privacy/freedom of expression against the employer’s right to reputation is discussed, as well as the mechanism of acquisition of the contents of a communication within a workplace as part of a defamation-based claim. The paper establishes the liabilities within the tripartite relationship of media distributor–database provider–user, as well as data law, taking an example the European Union system. The conclusion includes recommendations on creating a framework of guidelines and principles to foster productive employer–employee dialogue in the digital context within the workplace in African jurisdictions, including South Africa, Nigeria and Cameroon.

Some implications of trade secrets on the right of access to information regarding hydraulic fracturing in South Africa

Some implications of trade secrets on the right of access to information regarding hydraulic fracturing in South Africa

Author Kolapo Omidire

ISSN: 2521-2591
Affiliations: North-West University, Potchefstroom
Source: South African Intellectual Property Law Journal, 2019, p. 143 – 162

Abstract

South Africa is considering plans to develop shale gas by hydraulic fracturing as a source of energy. In countries where hydraulic fracturing is presently undertaken a claim of trade secrets by operators is a common phenomenon. However, while the underlying rationale of safeguarding commercial transactions by means of protecting trade secrets may be reasonable, there is a need for caution as, unfortunately, other interests may be prejudiced. In the case of hydraulic fracturing, the conceptualisation of the right of access to information as a leverage right which makes other rights possible, means it could be applied by people whose rights may be infringed by a claim of trade secrets. Therefore, any restriction of the exercise of that right by a claim of trade secrets has the potential to violate the right of access to information. A claim of trade secrets which ultimately violates the exercise of the right of access to information in relation to hydraulic fracturing also contextualises the problem in relation to similar claims in other developmental processes. Given the need to guarantee the right of access to information as an enabler for the enforcement of other rights that may be adversely impacted by hydraulic fracturing, this article examines potential lessons that can be distilled for South Africa in relation to the regulation of trade secrets under the law of the state of Pennsylvania in the United States of America.