First let me agree with you that the need for legal clarification should not stop users from continuing their work, nor government from discovering the potential of open data.

Of course I can’t comment on whether legal action from government is likely.

But that doesn’t mean that people can’t engage with government, get access to data as they are able, and demonstrate the desirability of open data.

As you know the Copyright Act came in to force in 1978, BIG DATA hadn’t been imagined yet. The Act includes in the definition of “literary work” the following: “(g) tables and compilations, including tables and compilations of data stored or embodied
in a computer or a medium used in conjunction with a computer,”.

Whether a compilation of data falls under copyright depends on the same three factors that affect all South African works; it must be original, reduced to a material form and made by a qualified person. According to the Act copyright may adhere in the state as a qualified person. Storage as ‘digital data’ is enough for a work to be regarded as in material form. For a work to be regarded as original it must be the product of independent production i.e. not a copy of another work.

What does that mean for databases? South African law is not at all clear on this. South African law has not adopted the standard of requiring creativity found in the Feist decision in the US, nor even the originality by dint of selection and arrangement of the European Union Database Directive.

Most of the cases dealing with the relevant section don’t deal with computerised databases but the one leading case on computerised databases Payen v Bovis dealt with a work created under the 1965 Act. That case states that a computer generated database is subject to copyright where it is the result of independent skill and effort.

The vesting of not all but ‘technological’ intellectual property in SITA is matched by the appointment of the Office of the Government Printer to manage copyright that vests in government.

But there are many statutes that appoint Registrars of particular ‘registers’ (by now all computerised databases) which it could be argued grant those Registrars the responsibility to manage the copyright in the registers (assuming that there is any copyright in the register).

My understanding of the copyright act is that it does not directly cover data. Data can possibly be interpreted under the literary work definition. In any case, to qualify as a literary work, the data needs to include some component of creativity or innovation.

Facts are not applicable under copyright. Databases of facts may be, depending on whether the process of the selection of the facts to be included underwent a creative or innovative process. For example, I don’t think that the telephone book qualifies for copyright protection. On the other hand a list of names of the 10 most powerful leaders in South Africa may, as the process of creating that list is innovative.

Interestingly enough, the act explicitly excludes official texts from copyright but doesn’t specifically define what an official text is. Arguably, most government data can be considered to be an official text.

PAIA defines the process through which data can be requested but does not deal with ownership of the intellectual property as far as I understand. It is not clear what my rights are with regards to data received through the PAIA process.

The State Information Technology Act includes a bizarre clause that vests all intellectual property in SITA.

Legal clarification is important but shouldn’t stop users of data from continuing their work. Legal action from government agencies is highly unlikely and positive examples of how data is being used to produce information products and improve citizen engagement with government will only improve the case for making more data open.

I am not sure what you mean by mixed models. As I pointed out in the blogpost crowd funding could potentially provide us with information that is otherwise unavailable due to the distorting effect of statutory monopolies. How would this information change the way that public support for the arts is structured? Could the future consist of a combination of crowd sourcing and state support but without intellectual property?

Pliny the Elder states in Naturalis Historia, VIII. xviii “ magna his libido coitus et ob hoc maribus ira Africa haec maxime spectat, inopia aquarum ad paucos amnes congregantibus se feris. ideo multiformes ibi animalium partus, varie feminis cuiusque generis mares aut vi aut voluptate miscente: unde etiam vulgare Graeciae dictum semper aliquid novi Africam adferre. “. Reading this in the original Latin I understand the connection to the bizzare to be Pliny’s, whereas the saying as he reports it has seems to have had connotations more of bemusement, the equivalent of when people in the United States exclaim about innovation from Silicon Valley “what will those crazy Californians come up with next”.

I fully intend to make ex africa more positive in future.