SAJIC Issue 7, 2006

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https://wiredspace.wits.ac.za/handle/10539/28142

Digital technologies and global electronic networks present unparalleled opportunities for international knowledge sharing and collaboration. But these same technologies and networks can also be used by authors in ways that significantly limit access and sharing for the purposes of education, innovation and development. The debates around the information commons and the restrictive provisions of copyright rights-holders in the online environment are of particular relevance to the developing world and the African continent.

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The Future of the First Sale Doctrine with the Advent of Licences to Govern Access to Digital Content
(LINK Centre, University of the Witwatersrand (Wits), Johannesburg, 2006-12-15) Masango, Charles A
The article examines the origin of copyright and the first sale doctrine. It exposes the advantages that the doctrine confers to the purchasers of copyright works and how it is possible for purchasers to use the doctrine to advance scholarship. The article also examines whether the advantages that the doctrine confers to the purchasers of printed copyright works has been permanently swept away by the introduction of licences by authors to govern access to digital content. Finally, the article looks at content access models being used in the digital environment that may ultimately serve the same function as that played by the first sale doctrine in the previous offline-only, hard-copy environment.
At the Crossroads: ICT Policymaking in East Africa, edited by Florence E. Etta & Laurent Elder, 2005: Book Review
(LINK Centre, University of the Witwatersrand (Wits), Johannesburg, 2006-12-15) Van Reijswoud, Victor
The ‘Fair Use' Doctrine and the Implications of Digitising for the Doctrine from a South African Perspective
(LINK Centre, University of the Witwatersrand (Wits), Johannesburg, 2006-12-15) Schonwetter, Tobias
This article seeks to determine the scope of the “fair use” doctrine under South African copyright law. For these purposes, the legal requirements in the relevant international treaties for the doctrine are examined, particularly the so-called “three-step test”. Subsequently, the legal situations in other countries and regions – South Africa’s major trading partners the United States, Europe, and Australia – are described and compared. Thereafter, emphasis is placed on the impacts of digitising and the Internet on the fair use doctrine. Lastly, the article seeks possible solutions for South Africa with consideration of South Africa’s unique situation as a country between the developed and developing worlds.
Technological Protection Measures: South Africa Goes Overboard. Overbroad.
(LINK Centre, University of the Witwatersrand (Wits), Johannesburg, 2006-12-15) Visser, Coenraad
In the digital world, technological protection measures (TPMs) are increasingly used by authors to safeguard against copyright infringement. TPMs mainly control access to copyright works and/or the use of such works (for example, by limiting copying of these works). The international framework for protection against the circumvention of TPMs is found in the WIPO Copyright Treaty (WCT) of 1996. This article examines this framework, and how the international obligations have been discharged in the United States and Europe. In this context the extent of the protection, and possible exceptions and limitations, are considered. It is noted that overbroad protection would be particularly prejudicial to research and education in developing countries, and in this way would deny them the benefits of access to information and learning through global information networks. Finally, the position in South Africa is considered with reference to the Electronic Communications and Transactions (ECT) Act of 2002, which adopts a level of protection far stricter than that adopted in any of the developed countries surveyed.
Implications of the NonCommercial (NC) Restriction for Educational Content Licensed Under a Creative Commons (cc) Licence
(LINK Centre, University of the Witwatersrand (Wits), Johannesburg, 2006-12-15) Keats, Derek
Individuals and institutions are increasingly making content available under Creative Commons (cc) licences. Creative Commons licences are heterogeneous, even though common discourse often assumes homogeneity. A cc licence that is analogous to the free software licence of the GNU General Public Licence is the cc Attribution-ShareAlike (BY-SA) licence. An informal survey of content on the Internet indicates that less than 24% of educational content uses this licence. Seventy-three per cent of content surveyed uses a cc NonCommercial (NC) restriction on use. Casual conversations with authors who use cc licences indicate that most do not understand the implications of choosing a particular licence. A set of principle-based guidelines for choosing cc licences for educational content is suggested.
Comment: Reconsidering the Pirate Nation
(LINK Centre, University of the Witwatersrand (Wits), Johannesburg, 2006-12-15) Liang, Lawrence; Prabhala, Achal
Forever Minus a Day: A Consideration of Copyright Term Extension in South Africa
(2006-12-15) Rens, Andrew; Lessig, Lawrence
The European Union and the United States have extended their copyright terms from the life of the author plus 50 years to life plus 70 years. They now press a similar extension on developing nations. Term extension has significant costs, especially for developing nations. These costs require careful consideration. One way to significantly reduce these costs is to require registration for the benefit of term extension.
Model Language for Exceptions and Limitations to Copyright Concerning Access to Learning Materials in South Africa
(LINK Centre, University of the Witwatersrand (Wits), Johannesburg, 2006-12-15) Baude, William; Hofman, Julien; Katz, Eddan; McDaniel, Katherine; Rens, Andrew; Riley, Chris
South Africa’s current copyright law, the apartheid-era Copyright Act of 1978, remains largely indifferent to development objectives such as increasing public access to educational materials. While it must comply with international copyright law, the Act fails to fully exploit the flexibilities available in the World Trade Organisation’s (WTO’s) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In this article, we present proposed model language which could be used to incorporate exceptions and limitations to copyright into South African copyright law. We give provisions for fair use/fair dealing in education, adaptation of material for the disabled, and translations of material. Our proposed exceptions would greatly increase public access to learning materials while remaining within the boundaries of the “three-step test” of article 13 of TRIPS governing exceptions to copyright. A comparative analysis of other national copyright solutions is offered for each provision.
Africa and the Digital Information Commons: An Overview
(LINK Centre, University of the Witwatersrand (Wits), Johannesburg, 2006-12-15) Armstrong, Chris; Ford, Heather
Digital technologies and global electronic networks present unparalleled opportunities for international knowledge sharing and collaboration. But these same technologies and networks can also be used by authors in ways that significantly limit access and sharing for the purposes of education, innovation, and development. Through the efforts of librarians, archivists, academics and activists, vast new reserves of information and knowledge are being made available for free public consumption, and even adaptation, on the Internet. At the same time, however, electronic networks and digital technologies are being used to limit non-commercial access to some learning materials. For example, large educational publishers charge high subscription fees to universities for access to databases, with restrictions on use that are often more prohibitive than in the offline, paperbased environment. This fundamental schism present in the digital, globally-networked era – between the building of an “information commons” on the one hand, and the privatisation of knowledge on the other – is generating a variety of dynamic activist responses, including the free/libre open source software (FLOSS) movement, the “open access” movement in scholarly communication, and the “open content” approach to online sharing and collaboration among authors. The open access movement revolves mostly around the practice of academics making their research outputs and writings freely available on the Internet, either through open access online journals or online institutional repositories (archives). The open content movement is in some cases even broader than open access, encouraging online adaptation of materials by users, with the Wikipedia collaborative encyclopedia being perhaps the best-known such project. Another important open content initiative is the Creative Commons (cc) licensing system, which allows authors to adopt a “some rights reserved” approach when publishing their materials online. Under the terms of a cc licence, users are permitted unlimited copying and distribution of materials, and in some cases, are permitted to even adapt and/or derive commercial benefit from the materials. Open access and open content initiatives aim not to eliminate copyright in the online environment but rather to ensure that copyright does not restrict the potential of new technology to overcome barriers to access and innovation. The debates around the information commons and the restrictive practices of copyright rights-holders in the online environment are of particular relevance to the developing world and the African continent. Much of the world’s copyrighted material is owned by developed-world multinationals, leaving developing nations as the “payers” or consumers of knowledge and culture, and the developed world as the “payees” in much of the flow of monetary value derived from copyrighted materials. This article outlines the global information commons debates and players, and then focuses on efforts to maximise the potential benefits of digital networks for the developing world, and in particular Africa.

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