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


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.