The Implications of the Internet and Technology on South Africa’s Copyright Holders’ Remuneration: Lessons from the European Union and Ghana

Abstract

Copyright law developed from the fifteenth century advent of the printing press and successively, it has evolved and adapted in synch with mutating technology. Five centuries later, the dawn of the Internet and digital technology has ominously outmoded existing analogue copyright principles creating a quandary for copyright law through its huge scale copyright infringement patterns encompassing copying, uploads, downloads, peer-2-peer sharing, MP3 format reproductions and the making available right of protected content to the public. The Digital Age carries the typical double- edged sword. While providing accessibility to a vast array of information, its seamless digital content storage, reproduction and dissemination capabilities deprives copyright holders’ remuneration rights. Resultantly, a myth prevails that if it is on the Internet it is for free. Scholars have posited how with the established norms of copyright protection; the Internet has now created copyright malcontents forming a global generation of copyright criminals. Copyright works are copied often in private homes and distributed at a geometric to millions of end users at the click of a button. There are enforcement impediments around monitoring and controlling illegal copying without inverting the constitutional right to privacy. Such complications have also arisen with the use of Artificial Intelligence and its often unsanctioned capacity to generate copyright content such as music, art, texts and literary content. This now requires adaptations and novel applications of copyright law through harnessing the power of technologies without interfering with private copying. A priori, copying results in authors losing remuneration and competitive advantage. This study uses a qualitative research approach and provides a statutory remedy to the copyright remuneration tensions created by the Digital Age. It proposes a private copying levy that responds to private copying exception to facilitate end users’ exploitation of creative online content while in return paying fair compensation to copyright holders. The compensation is in the form of a copyright levy, arising from levying digital devices capable of storing, and disseminating digital expressions. The levy is priced into the purchase price by the manufacturers, importers and distributors of the digital devices and passed on to the consumers. This study is drawing lessons from its operationalisation in the European Union and Ghana, respectively. The Collective Management Organisations shall be mandated to carry the overall management and distribution of the levy. The research is guided by utilitarianism, an ethical theory propounding balanced private and public interests in the exploitation of works. It creates authors’ competitive advantages by granting temporary monopoly of their works in return for sufficient economic incentives to spur further innovations. By providing a copyright levy framework that remunerates authors, supporting innovation and creativity without impeding end users’ access to works, this study ensures that copyright law remains relevant in the Digital Age.