[By Owen Dean]

Andrew Rens has commented on TechCentral’s recent interview with me in which I expressed critical comment on the state of SA’s copyright laws and, particularly, as they affect the music industry.

Rens and I approach copyright from two diametrically opposed departure points, so it’s not surprising that we have differing views on what constitutes appropriate protection under copyright.

My departure point is the sentiment expressed in Article 27(2) of the Universal Declaration of Human Rights which states that “everyone has a right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”.

This principle has been given expression in our intellectual property legislation and, more particularly, in section 45 of the Patents Act and section 20(1) of the Designs Act in which it is said, for instance in regard to patents, that the patentee is given certain exclusive rights in respect of his invention “so that he shall have and enjoy the whole profit and advantage accruing by reason of the invention”.

Rens, on the other hand, espouses the doctrine of the Creative Commons movement, a movement which, by and large, views copyright from the perspective and interest of the consumer and the public at large and seeks to make works widely available at little or no cost.

This dichotomy of approaches is, in a way, reminiscent of the conflict between certain fundamental human rights which are protected in our constitution. On one hand, there are rights such as the right of privacy and the right not to be defamed, as well as the right to hold intellectual property. On the other hand, there are rights such as the right of freedom of expression and freedom to conduct normal economic activity.

These conflicting rights must be weighed up against each other in any given situation, and the Constitutional Court is frequently called upon to conduct exercises of this nature.

There are of points on which Rens and I agree. The first is that SA copyright law needs a complete overhaul and needs to be updated. Furthermore, he joins me in suggesting that we should look for guidance from other countries.

In essence, Rens has supported the main contention I expressed in my interview, namely that our copyright law is frozen in the 1990s and is no longer state of the art.

The fact that the law is in a time warp should be addressed by government as a matter of priority so it can do its job properly.

I made this submission in respect of SA copyright law as a whole, not merely in connection with the music industry, though I used that industry as an example because I consider it one of the industries which is suffering the most from the neglect on the part of the government in keeping our law abreast with technological and other developments.

SA copyright law, like every other copyright law in the world, and indeed the Berne Convention from which the vast majority of countries’ copyright law is derived, provides, as one of the most basic so-called “restricted acts” in respect of musical works, sound recordings and virtually all works, the right to prevent unauthorised reproduction of the work.

In copyright law, that right remains sacrosanct and is fundamental to copyright. In terms of the Berne Convention, certain clearly circumscribed exceptions or exemptions can be made to that right in the public interest and our law has by and large incorporated all such permissible exceptions or exemptions.

The reproduction right has become increasingly difficult to police and to enforce in the modern technological age. Reproduction on a mass scale can take place so easily and quickly that the right is currently of debatable value.

In order to re-enforce this right by technological means (in other words to achieve via technology what the law seeks to prevent), record companies and other purveyors of copyright material have sought to introduce anti-copying measures in CDs, DVDs and the like. The purpose of these anti-copying measures is to prevent reproduction, which the law says is unlawful when unauthorised, by means of technological means.

The introduction of anti-copying devices does not create a new right. On the contrary, the right to prevent reproduction has been there all along. These anti-copying mechanisms can only do the job that is required of them if they remain embodied in the fixation of the work. If they are removed, then the whole object of the exercise is defeated.

In order to prevent the removal of these anti-copying devices, the 1996 Performances and Phonograms Treaty introduced anti-circumvention provisions, in terms of which it was made unlawful to remove the anti-copying devices. When anti-copying measures are in place, no greater restriction is placed on the use of the work than is provided by the longstanding and fundamental right to prevent reproduction. It is, therefore, with respect, incorrect to say that introducing anti-circumvention measures into copyright law extends the scope of the monopoly of the copyright owner.

Anti-copying devices simply give copyright holders a weapon to use in enforcing their non-reproduction right and anti-circumvention measures are aimed at ensuring that they stay in place.

The US Digital Millennium Copyright Act (DMCA) might have its genesis in the 1996 Performances and Phonograms Treaty, but the US legislature, as it is often wont to do, went overboard and provided for many other issues besides the basic anti-circumvention provisions foreshadowed in the Performances and Phonograms Treaty. The fact that the DMCA may not be a good piece of legislation and one which SA should follow does not make the treaty bad. I am by no means advocating that SA should clone the DMCA.

It is the vogue in present day SA to blame and attribute just about anything that is open to some criticism on the apartheid regime. Rens has followed this trend by characterising the 1978 Copyright Act as a creation of apartheid SA. But, with respect, our SA copyright law has been identical to, or very closely based on, British copyright law since at least 1916.

The act’s predecessor, the 1965 Copyright Act, was virtually a verbatim reproduction of the British Copyright Act of 1956. When the 1978 Copyright Act was drafted (I had some involvement in the drafting process) our legislature sought to simplify the British legislation and to make it more compatible with the bulk of SA’s statute law.

However, it remains about 95% the same in substance as its predecessor law. The exceptions and exemptions that were provided for in the 1978 Copyright Act were taken almost verbatim from the Berne Convention itself, which, being an international treaty, was probably not the best model for drafting national legislation.

If one compares our 1978 Copyright Act with similar legislation in Australia, New Zealand and other Commonwealth countries as they existed at that time, it will be apparent that our act is substantially identical to those countries’ acts. They were hardly the product of the apartheid regime!

Placing copyright owners in a position to apportion their rights on a territorial basis has prevailed since the beginning of the 20th century. There have been several cases in SA, Australia, Canada and the UK where copyright owners have successfully sued parallel importers for importing and trading in “genuine” goods intended for another geographical market and not for trade in the domestic market. Those parallel imports have been produced in terms of exclusive territorial rights granted in respect of other parts of the world besides the local market.

Rens attributes anti-copying mechanisms or digital rights management (DRM) as the means by which copyright owners can produce products with territorial restrictions. With respect, he is making the same mistake as thinking that anti-copying mechanisms create a reproduction right.

On the contrary, copyright law itself creates the opportunity, by means of territorial licences to impose territorial restrictions on trading in goods and the DRM system does no more than reinforce those rights and provide a technological means for giving effect to them.

What emerges from this discussion is that a complete review and overhaul of SA’s copyright law is needed and the first objective of such a review must be to bring it up to date with technological developments.

In following this process the conflicting rights of copyright owners and the users of copyright materials will have to be weighed up. This must, however, be done against the background of the Berne Convention and the Trips Agreement, which are the international intellectual property treaties by which SA is bound, along with the rest of the world, and is therefore obliged to follow.

The review process must also take account of what are fundamental copyright rights and what are aids for enforcing and exercising those rights. One must be astute not to consider the aids to be rights themselves.