[By Andrew Rens]

Writing in defence of rights management and in response to my comment on his interview, Spoor & Fisher’s Owen Dean says he and I “approach copyright from two diametrically opposed departure points”.

We do. But Dean goes on to misconstrue what I wrote in a number of ways, which I have responded to on my blog for anyone interested in the detail. But here I want to talk about the bigger picture. The fundamental difference between the two departure points is how law should respond to technological change. Is technology a threat or an opportunity? Is technological change something that must be hamstrung to preserve the status quo, or does it hold enormous potential for developing countries like SA?

Technologies can be deployed to different ends. There is nothing inherent in information and communications technology (ICT) that will usher in utopia. ICT could help SA educate its population, diversify and grow its economy and make people’s lives better, but that doesn’t mean that it will happen, not least because the law can block or at least hinder innovation. What confronts lawyers, judges and politicians as they construct a response to a particular technological change is never a single option. This can be seen in two examples of the law responding to technological change.

In his provocative article, The ecstasy of influence, author Jonathan Lethem recounts an example from the past: “Early in the history of photography a series of judicial decisions could well have changed the course of that art: courts were asked whether the photographer, amateur or professional required permission before he could capture and print an image. Was the photographer stealing from the person or building whose photograph he shot, pirating something of private and certifiable value? The world that meets our eye through the lens of a camera was judged to be, with minor exceptions, a sort of public commons, where a cat may look at a king.”

That outcome now seems inevitable, but it wasn’t. Consider a contemporary example of digital rights management (DRM) applied to what used to be called film. Before digital technology, SA copyright law authorised filmmakers to “quote” music and other films, provided it was in accordance with fair practice.

Artists could make rich films by incorporating a wide variety of excerpts, referred to in SA copyright law as “quotations”, so that creativity builds on creativity. The freedom to quote is essential to artists who both quote and are quoted, and it’s even built into SA’s dated copyright law despite never having been popular with companies holding big hoards of material.

Though the law hasn’t changed, technology has change and it has become possible for manufacturers of sound recordings and DVDs to use DRM to prevent filmmakers from using the creative freedom to quote, guaranteed to them by the law.

What are the possible legal responses to the introduction of DRM? One response would be to establish a law to ban DRM because it prevents people from exercising the freedoms guaranteed by copyright law. Another possible response would be to create a law to prohibit people from circumventing DRM because people might make infringing copies as well as quoting. A third possible legal response to DRM would be to permit it, but also permit people from circumventing it to exercise the freedoms guaranteed to them by copyright law.

The first option would effectively try to turn back the clock by banning a type of technology (DRM), to restore the way things worked in copyright before. Someone who thinks the creative and other freedoms guaranteed by copyright law most important might favour this way.

The second possibility, banning the circumvention of DRM, might be favoured by someone who considers that efforts to supplement the right to prevent unauthorised copying is worth the loss of the creative and other freedoms in copyright law. I’ve already explained why I consider anti-circumvention provisions to be both ineffective and dangerous.

The third possibility avoids banning a particular technology because banning technologies limits technological innovation.

These possibilities shouldn’t be considered without taking into account a much wider view. How can digital technology transform a society in which too few people finish school, too few people finish university, and too many people are unemployed? What are the effects of banning technologies on innovation, access to learning materials, and on the economic and social health of a nation in general?

What emerges from this discussion then is that the first objective of a review of SA copyright law must not be to bring it up to date with technological developments. Rather, it must be to bring copyright law in line with the social and political realities of the society that gives lawmakers their mandate.

Andrew Rens recently completed a three-year fellowship working on intellectual property issues at the Shuttleworth Foundation and teaches intellectual property law at the University of Cape Town. The article expresses his personal views
The photo of Rens is courtesy of the Shuttleworth Foundation — 2008 CC_BY_SA_2.5_Za (Creative Commons Attribution Share-Alike South Africa 2.5)