[By Andrew Rens] In a recent interview with TechCentral, Owen Dean of specialist intellectual property lawfirm Spoor & Fisher urges that SA should ratify a treaty that requires anti-circumvention provisions meant to stop copyright infringement.

According to Dean, the country must “follow in the footsteps of the majors, and we’re not doing that. If the footsteps turn out to be less effective than originally envisaged, then so be it”.

Is he really advocating that SA makes the same mistakes as other countries?

The 1996 Performances and Phonograms Treaty creates new rights for the manufacturers of recordings of music and film and requires these awkwardly named “anti-circumvention provisions”.

These provisions are legal rules that prohibit working around the technical restrictions copyright holders use in their digital products. They give additional legal powers to rights holders, and impose additional restrictions on everyone else.

Twelve years ago, the US enacted provisions like these in the Digital Millennium Copyright Act (DMCA). Among other things, the provisions made it illegal for researchers to point out security vulnerabilities caused by the now infamous Sony root-kit, exposing purchasers of the Japanese company’s products to the risk of security breaches.

The same law is used to try to prevent US consumers from having their cellphones freed from being locked to one cellular network. After 12 years of experience with these anti-circumvention provisions, leading US copyright experts are now calling for the abolition of the DMCA.

Anti-circumvention provisions are not just ineffective. They also stifle free speech and innovation.

As a direct result of problems with the treaty, there are many countries have declined to ratify it. Emerging economies Brazil and India have not signed the treaty, and Canada, like SA, has signed but not ratified it. And the UK Intellectual Property Commission recommended “other countries should not follow the lead of the US and the EU by implementing legislation on the lines of the DMCA”.

It’s true that SA copyright law needs a complete overhaul. But the impetus should not come from discredited treaties. Instead, the law needs to change to allow, among other things, greater innovation, online education, and “format-shifting” for the visually impaired.

SA’s Copyright Act was gazetted in 1978 by an apartheid government intent on demonstrating to the world that the country was akin to Europe. We never had a copyright drafting process that took into account that SA is a developing country. Users’ rights, which are termed exceptions in the legislation, have proved inadequate in promoting education and innovation.

Also, rapid technological change has made the problems with the act worse.
SA should rewrite the act, drawing on lessons learnt in other countries. For example, we could draw on UK copyright law, which permits decompiling software to ensure interoperability of systems, debugging to ensure products work across a range of systems, and reverse engineering to determine algorithms and other underlying principles that are not subject to copyright.

Anti-circumvention legislation makes it illegal for consumers who have paid for a product, like a DVD, to make a copy of it, even for a permitted use like personal study.

Technical blocks, often euphemistically termed DRM, or digital rights management, also impose restrictions such as regional coding which have nothing to do with copying. Region coding, which prevents consumers from, for example, playing a US-made DVD in an SA-bought DVD player, has no basis in copyright law – it’s an additional limitation some vendors have chosen to impose on their customers.

Anti-circumvention provisions prohibit a purchaser from finding a way around DRM schemes such as region coding. The bizarre thing is, these schemes have generally failed to prevent large-scale commercial copying of CDs and DVDs — infringers simply copy the DRM together with the other data on the disc.

What benefit, if any, could these schemes provide? McKinsey researchers have shown the vast majority of musicians do not make any money from CD sales. Musicians are often forced to tour to make money to pay record companies for marketing costs of CDs. According to the McKinsey researchers, musicians mostly make money from live appearances, while the record companies pocket the profits from music recordings.

Madonna has fired her record companies, while Radiohead is profiting from a direct-to-fan business model.

Musicians and other creative people are finding new business models, often through new intermediaries such as Apple iTunes and Amazon.com. One consequence of anti-circumvention provisions is to give record labels and movie studios control over which appliances can play their products, which translates into power over consumer electronics companies.

These provisions are at play in the battle between different groups of information intermediaries. It would be a mistake for SA to adopt measures that have failed to prop up obsolete business models just for the sake of being seen to be doing something.

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)