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Lessig on Digital Barbarism

Lawrence Lessig has posted a review of David Halperin's recent book, Digital Barbarism.

Halperin, who authored the (in)famous New York Times article calling for perpetual copyright, has now compiled his ideas into a book. Lessig offers a much-needed critique, including citing misconceptions about Creative Commons (Halperin conflates it not only with "freeware" with software... more

 
South African Copyright - A Brief History
Rebecca Kahn, iCommons reporter (South Africa) · 1 comment
 
Image from "Copyright, Copyleft" , Creative Commons South Africa, CC BY 2.0 (http://creativecommons.org/licenses/by/2.0/)
Image from "Copyright, Copyleft" , by Creative Commons South Africa
Introduction
South Africa, like many other developing countries, inherited its intellectual property system from its colonial rulers, namely Great Britain and Holland. It is difficult to know what forms of “ownership” of ideas and knowledge existed in South African before the arrival of European settlers because little of these systems was recorded, and the copyright systems that came into being after colonisation made no attempt to include these systems. As in any post-colonial context, it is important to know something of the colonial and post-colonial history of a society, to understand how civil society and law have evolved as part of (and in reaction to) these political realities.

In South Africa, the Dutch were the first European colonists. The first Cape settlement was built in 1652 by the Dutch East India Company as a re-supply point and way station for Dutch vessels on their way back and forth between the Netherlands and the East Indies. The support station gradually became a settler community, and grew rapidly. Geographically, it was a perfect position – at the southern tip of Africa, it was a convenient stop-off point for any ship bound from Europe to the East.

As political wrangles played themselves out in Europe between the British, French and Dutch, so the Cape Colony was passed from hand-to-hand. Until 1806, South Africa was a protectorate of the Batavian Republic, but in 1806 it was occupied by the British. In European politics, this was a volatile time, as it was the period just before and after the Napoleonic Wars, when levels of hostility between France and England were high (Napoleon himself dissolved at Batavian Republic later that same year) and by taking the Cape, the British hoped to limit Napoleon’s influence in the colonial playing field.

From 1806 until 1910, the Cape Colony remained under British rule, until the Union of South Africa was formed after the two Anglo-Boer wars at the turn of the century. The Union, which included other regions to the north and east of the Cape. Geographically, these regions cover roughly the same area as the current Republic of South Africa. The Union lasted until 1961, when, under the Nationalist government (which was elected by ballot in which only white South Africans were eligible to vote) South Africa became a Republic.

The government of the Republic was avowedly anti-colonial, and the Afrikaner Nationalist government institutionalised discrimination socially, politically and economically under the apartheid system. It was only in 1994, that South Africa had it’s first ever democratic elections, and all South Africans were able to vote. Since then, there has been a concerted effort by the South African government and parliament to review the laws of the republic, and redress some of the omissions and injustices that were written into the statutes.

South African Copyright Law - A Brief History
As a protectorate of the Batavian Republic, South Africa had a form of Roman-Dutch ‘common law’ copyright, which was a version of the Copyright Act of the Batavian Republic.

In 1916 the Patents, Trade Marks, Designs and Copyright Act became the first piece of legislation that recognised an author’s right to copyright. This Act effectively adopted the British Imperial Copyright Act of 1911 as South African law. The system that South Africa inherited from the British was based on the world’s very first piece of copyright legislation, the 1709 Statute of Anne. This law vested authors with control over how their work could be reproduced for a fixed period of time. Until this point, printers had been the ones who controlled the copying of works in exchange for censoring which works were printed.

In 1928, South Africa became a signatory of the 1928 Berne Convention on its own behalf. The Berne Convention is the oldest and most important multilateral copyright treaty, and states that copyright is an automatic right, that an author or creator obtains as soon as their work has been “fixed” (i.e.: recorded or written down) without the author having to declare or assert it. Berne also makes provision for international reciprocation for copyright works, which means that a work that is created in one country is automatically protected by copyright in any other country that is also a signatory. The third important feature of the Berne Convention is the recognition it gives to moral rights.

Before it became a Republic in 1961, South Africa was a self-governing ‘dominion’ within the British Empire. After South Africa became a Republic, the copyright law was revised, and the 1965 Copyright Act, which was based on the British 1956 Act, was created. This act was also very similar to the British legislation, as was another act passed in 1978, which is still in force in South Africa.

The policy processes which led to these Acts have never taken into account that South Africa is a developing country, instead they've been marked by aspirations to copy European law as being the most “advanced”.
Neither has South African copyright legislation ever made mention of the traditional knowledge of indigenous South Africans. This knowledge, which was (and still is) rarely written down, is passed down within a community by oral traditions.

A Bill is being presented to Parliament in late 2008 to grant copyright in traditional knowledge to traditional knowledge communities. This will be the first time that traditional knowledge is acknowledged in South African law, and a community’s ownership and rights to that knowledge will be protected.

At the time of writing, some work is being done by government and civil society to re-evaluate and critically discuss the content of the South African Copyright Act. However, as 2008 ends without a solid Copyright policy being implemented, it is unlikely that much change will take place in the foreseeable future. 2009 is a general election year in South Africa, so it’s probable that no major policy shifts will take place before 2010.

Bibliography

South African Copyright Act 98 of 1978
Commons-sense at the LINK Centre The African Commons Toolkit, Johannesburg, 2006.
Commons-sense at the LINK Centre The African Digital Commons, A Participants Guide, Johannesburg, 2005.
Creative Commons South Africa Moral Rights and the iCommons, http://za.creativecommons.org/blog/archives/2005/06/26/moral-rights/; accessed 19 August 2008.
Dean, Owen A Handbook of South African Copyright Law, Juta and Co.; Johannesburg 2006 edition.
Rens, Andrew The Traditions of Knowledge, published July 9 2008, accessed from http://cyberlaw.stanford.edu/node/5800 on August 19 2008.
Shuttleworth Foundation Copyright Review Project wiki, http://copyright.shuttleworthfoundation.org; accessed 15th August 2008.


tags: johannesburg south africa policy-law local-context-global-commons bisa-copyright-review south-africa


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Great article, Bekka. Just one suggestion: when you say 'The policy processes which led to these Acts have never taken into account that South Africa is a developing country, instead they've been marked by aspirations to copy European law as being the most “advanced”.' it would be good to back this up with examples or references.
Heather Ford · Johannesburg (South Africa) · Nov 11th, 2008 6:14 pm
your call: is this comment useful?
your take: useful lame
 


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