Abstract

The relationship between copyright law and the right to education has been a prominent topic for several decades. Attainment of the right to education is inextricably linked to copyright and the materials under it. Therefore, the proper construction of copyright rules is essential. The current copyright regime has been criticised for being out of touch with the educational needs of learners and students in South Africa. The South African government has been engaged in copyright reform to remedy this issue and other issues raised against the current regime. This reform process resulted in the Copyright Amendment Bill B13F of 2017. In June 2020, the President addressed a letter to Parliament and expressed concern that various copyright exceptions in the Bill, including ss 12A,
12B and 12D through which the attainment of the right to education is promoted, run the risk of violating the property rights of copyright holders under s 25(1) of the Constitution. This paper evaluates this claim. As part of this evaluation, this paper also considers whether intellectual property constitutes property under s 25 of the Constitution. The latter question is important because the current jurisprudence of the Constitutional Court on s 25 relates to the validity of the state’s regulation of corporeal property. The claim has been evaluated by copyright scholars before.

This paper builds on the work of other scholars by considering the nature of intellectual property and its theoretical underpinnings. The consequence of recognising intellectual property as property for constitutional purposes is that it will be protected against arbitrary state interference and unlawful expropriation under s 25 of the Constitution. To contextualise this, it should be reiterated that references to intellectual property in this paper include copyrights, patents, trademarks, designs and other traditional forms of intellectual property. This paper will demonstrate that an inquiry into the constitutionality of copyright exceptions and limitations in the Copyright Amendment Bill is unlikely to result in a finding of constitutional invalidity under s 25(1) of the Constitution.

Abstract

IT 14302, a decision of the Tax Court, is the first South African judgment dealing with the substantive application of the transfer pricing provisions in the Income Tax Act. The decision addresses the application of the transfer pricing provisions to cross-border payments for the use of intellectual property, specifically from foreign subsidiaries to a South African company. The article considers the use of terminology such as brand, goodwill and intellectual property by the parties and the court in determining the tax liability of the taxpayer and second, the application of the transfer pricing methodologies to determine the arm’s length price for the ‘good’ licensed by the South African taxpayer company to its associated foreign subsidiaries.

Abstract

The protection of intellectual property rights, particularly copyright in digital trade, has raised concerns about the applicability of existing frameworks to the digital paradigm, especially considering that these frameworks were not negotiated in anticipation of intangible assets and content as central components of commercial transactions. Although digital trade presents an opportunity, particularly for small to medium enterprises in the Southern African Development Community to access new trading platforms and new business opportunities, it has also led to a surge of unlawfully distributed copyright-protected music, films, art, photos, scripts, books and software over the internet thereby causing serious losses for copyright holders. Enforcing copyright in digital trade is difficult as the infringer may be based in a different jurisdiction, often hiding under the veil of anonymity. It is in this context that this article examines the regulation of copyright in the Southern African Development Community and questions whether the existing framework effectively harmonises copyright law in a way that accommodates the technological developments in international trade. The article argues that the regulation of copyright in the Southern African Development Community is fragmented and, in many instances, outdated in dealing with the emerging digital paradigm. To this end, the article recommends the development of a regional framework on copyright. It submits that a regional framework that supports the creation, protection, administration and enforcement of copyright in digital trade can promote innovation and enhance competition thereby enabling Southern African Development Community countries to effectively participate in the digital trade.

Abstract

Despite contributing little to global warming, Africa continues to be adversely impacted by climate change in multifaceted ways including in agriculture and food systems, human health, water and ocean systems, transportation, energy and industrialisation. Global efforts to mitigate the climate crisis are woefully inadequate and Africa-driven initiatives to tackle these challenges are increasingly focussed on regional and national climate adaptation strategies aimed at reducing climate risk, helping society adjust and building resilience to the present and future impact of climate change. These strategies include developing innovation and technology systems especially for climate adaptation in Africa. To be effective, such strategies must be guided by evidence of the innovation capabilities and require appropriate governance systems at the regional and national levels in Africa. Conducted by way of desk research, as part of a broader research project involving two other African countries, this case study focuses on South Africa and examines the climate adaptation innovation of LiquidGold Africa (Pty) Ltd to demonstrate Africa’s capacity to innovate climate adaptation solutions. The research also examines the potential of the innovation governance systems in South Africa, such as intellectual property (IP) regimes, to harness existing climate adaptation innovation for substantial impact. In this regard, the paper briefly sets out some broad background issues relating to IP, technology transfer and access to adaptation innovation from the perspective of international climate change negotiations. It then undertakes a survey of South African climate change challenges, the legal, policy and institutional frameworks on climate adaptation, and the climate adaptation innovation governance landscape before focusing specifically on the work of LiquidGold.