It would be unwise for South Africa to undertake international legal obligations to prohibit circumvention technologies.
That is my position in an a back and forth conversation with Dr Owen Dean in a number of articles in Tech Central on anti-circumvention provisions. The exchange started with an interview of Dr. Dean by Duncan McLeond entitled ‘South African Copyright Law under fire‘ which provoked strong rebuttals in the comment space. I was given an opportunity to comment, which I did with an article entitled ‘Don’t repeat copyright mistakes‘ which explains why anti-circumvention provisions are are both ineffective and dangerous. Dr Dean wrote an article ‘In defence of rights management‘ to which I have replied in an article to be published this morning now live Changing Copyright: the bigger picture.
In that article I chose not to engage the specifics of a number of points on which Dr Dean misconstrues what I am saying in ‘Don’t repeat copyright mistakes‘ because it was important to talk about the bigger picture: how law should respond to technological change. I did undertake to deal with those points on my blog. Throughout though we agree that South Africa’s copyright legislation requires urgent attention.
Dean suggess that he and I ‘approach copyright from two diametrically opposed departure points’. I agree. However he goes on to characterise his approach as in favour of the producers while characterising mine merely as favouring consumers. Not quite.
Instead I understand that the freedoms such as the freedom to quote which are built into copyright law are as important for authors as they are for consumers, because no-one creates in a vacuum. As importantly the new digital technologies have increased the opportunities available to artists. In the days of analogue technology a musician could only reach her audience through intermediaries, through playing at a venue or through selling her rights to a record company which had the ability to make and distribute thousands of records, and through having that record played by a broadcaster who could reach an audience of thousands. Because record companies make money from making thousands of identical things, only a few musicians could access those narrow channels. Digital technology changed that. Its the maligned ability of digital technology to make and distribute copies which enables a, musician can reach her audiences directly all over the world. If she wants to use intermediaries there are not only record companies but other services like Apple iTunes which abandoned DRM, download services and Internet ‘radio’ stations. Technology has even rendered the division of ‘producers’ and ‘consumers’ redundant. Someone with a PC, the right software, and a little skills, can now replicate processes once only available in high tech studios.
Dean writes that the ‘ introduction of anti-copying devices does not create a new right’. I agree. Its important to distinguish clearly between technology and law. The law gives copyright holders the right to withhold permission for some copying but some copying is authorised by copyright law in certain circumstances, such as fair dealing. DRM, if effective, can technically prevent the exercise of authorised freedoms but it is not itself a law. This makes DRM problematic from a legal perspective since they are intended to prevent the exercise of freedoms which the law grants, in other words they can be used to try and circumvent one of the functions of copyright law. Of course imposing a DRM on a purchaser of DVD does not in itself prevent the purchaser from working around the technical block. So a skilled purchaser can lawfully use his DVD to exercise his freedoms under copyright law despite DRM by circumventing DRM.
Anti-circumvention provisions are legal provisions which enable a rights holder to choose to prevent others from exercising the freedoms built into copyright law. Awarding rights holders the ability to prevent others doing something that they could otherwise do amounts to an additional right.
Dr Dean seems misled by my suggestion that “SA’s Copyright Act was gazetted in 1978 by an apartheid government intent on demonstrating to the world that the country was akin to Europe. We never had a copyright drafting process that took into account that SA is a developing country.” He points out, as if it had been suggested otherwise, that the legislation largely copied UK legislation, which was exactly my point. The apartheid government copied UK legislation uncritically without taking into account the needs of most of South Africa’s population. South Africa was not in 1978, nor is now, comparable to the United Kingdom, nor Australia and New Zealand in terms of its development, instead South Africa is an African country withe extremely urgent development needs. For a white minority government to ignore the needs of its majority black population to imitate the legislation of a European country is evidence of its aspirations to be regarded as “European”, “advanced” and all the other code words of colonialism and neo colonialism.
Edited to add. I have already suggested that South Africa can learn from the current UK legislation, specifically from the software exceptions, and I have previously blogged about the Australian report that recommends repealing parallel import provisions. South Africa can learn from other jurisdictions, even developed countries, however in learning from other countries the paradigm cannot be one of simple imitation, instead South African lawmakers must prioritise development.
The contrast with the USA couldn’t be greater. When the USA achieved independence from the UK, it recognised only its own copyright for the first 100 years of its history.This is credited with greatly increasing the availability of affordable books in the USA, thus contributing to increasing literacy and education when the USA was a developing country.South Africa, as a signatory to the Berne Convention can’t do exactly that, South Africa is bound to recognise the copyright granted by other Berne signatories but South Africa can and should draft legislation appropriate to a developing country.
But Dean and I do agree that South Africa’s Copyright Act is stuck in a time warp and in urgent need of complete rewriting.
