Abstract

In 2000, the European Union (EU) undertook to enter into economic partnership agreements (EPAs) with the African, Caribbean and Pacific (ACP) regional groups with the intention of promoting development by implementing tariff-free trade structures with ACP states. A number of these agreements, once entered into, contained provisions regarding intellectual property rights and technology transfer. However, the provisions in these agreements regarding intellectual property protection and enforcement appeared to oblige contracting states to follow the directives as espoused in pre-existing intellectual property agreements. This contribution argues that those agreements do not adequately address educational concerns in developing ACP states, and that, if the EU is concerned about the long-term development of ACP states and regional groups, it should take adequate steps to facilitate knowledge transfer on an equitable basis through copyright mechanisms.

Abstract

Digital Age misappropriation and plagiarism of published online news content by some South African media proprietors are negatively affecting professionalism and integrity in journalism. Such infringements invariably lead to great tension, harmful competition patterns and dwindling revenues. Frequently, digital news misappropriation creates factual distortions, impairing the democratic functions of journalism and healthy national discourse motivated by legitimate public interest considerations. A 2019 Reuters Institute Digital News Report revealed that, globally, South Africans spend the greatest number of hours browsing online, with 36% of the population enjoying sharing news content, while 40% enjoy commenting on news via social media or news websites. While the Digital Age has generated many forms of active players in journalism, this paper is limited to digital infringement conflicts and contestations between accountable and established media proprietors or competitors. This qualitative contribution proposes that media proprietors collectively seek an alternative dispute resolution approach to copyright infringements through a comprehensive ‘Media Arbitration Copyright Infringements Code’ with incorporated ‘Hot News Misappropriation Doctrine’ provisions to regulate the conduct of the media and to address proliferating digital infringements. The Media Code should also guide the proposed ‘Media Copyright Tribunal’ operating within a commercial arbitration framework in dispute adjudication and resolution. This paper argues that the Media Code with the Misappropriation Doctrine is a more viable approach for addressing media copyright disputes because it largely protects facts contained in published news content. Furthermore, a Media Code that is drafted addressing media copyright digital infractions using the ethical benchmarks set by the ‘Press Code of Ethics and Conduct for South African Print and Online Media’ editorial guidelines interpreted through a flexible informal commercial arbitration framework that expedites dispute resolution is desirable. This paper is largely concerned with the court’s findings in Moneyweb (Pty) Limited v Media 4 Limited and Another, and the fact that it took about three years for the dispute to be resolved. Moreover, this paper argues that the current Copyright Act 98 of 1978 is less effective in dealing with the ethical quandary faced by journalism in the Digital Age.

Abstract

As a pervasive feature of modern society, the adaptation right in the context of infringement and fair dealing has frequently been a subject of heated debate for several years. However, the current Copyright Act 98 of 1978 does not adequately address either aspect. The power disparity between copyright owners and users makes it difficult for the user to determine when it is appropriate to pay for permission and when to use the work without permission, resulting in numerous legal debates over what is considered lawful or permissible use. Moreover, the complexities of copyright law and its application in the context of the various forms of adaptation set out in the Copyright Act (ie arrangement, transcription, translation and transformation) remain largely undefined, leaving those attempting to create a work of adaptation or resolve a dispute over one in a state of considerable uncertainty. Consequently, there are numerous gaps in South Africa’s legal system concerning adaptations and their role in legal proceedings. This is exacerbated by the absence of case law meant to provide clarification. Additionally, the exceptions and restrictions associated with the adaptation right are extremely limited. Blind SA v Minister of Trade, Industry, and Competition and the almost decade-long debate about the Copyright Amendment Bill indicate a need for reform in South Africa’s legal system concerning adaptations and their role in legal proceedings.

Abstract

This article analyses South African copyright laws, with reference to artificial intelligence (AI). It deals specifically with the authorship of copyrightable works as contained in the Copyright Act 98 of 1978. The Act provides that authorship vests differently, depending on the type of work in question ie a work recognised by s 2 of the Act. The article seeks to provide insight into the existing jurisprudence surrounding AI and copyright in the South African context. Moreover, it relies on prevailing local jurisprudence to show that South Africa may lack an adequate legal structure to tackle the future implications of conferring authorship on non-human entities. The article also briefly explores resolutions in other regions such as China and draws on Ginsburg’s legal tests for authorship. The article’s focus is primarily on South African law in its current state, with reference to other legal jurisdictions and the future.

Abstract

The increasing sophistication of artificial intelligence (AI) facial recognition models and the accessibility of photos online by companies and governments have amounted to the excessive misuse of facial surveillance systems. The government, the police and organisations have a long history of using AI facial recognition technologies to gather data on citizens without respecting their data and privacy rights. The government relies on national security and public safety to justify such gathering of data. Marginalised groups and people of colour are disproportionately affected by such surveillance. Data protection and privacy rights activists have called on governments to regulate facial recognition systems. It is also essential to establish AI oversight agencies with the responsibility to monitor the use of AI models and to ban such use when it breaches citizens’ data and privacy rights, and any other human rights.

The European Union’s AI Act is the first comprehensive regulation on AI. It provides a risk management framework with different rules for different risk levels: unacceptable risks, high risks; and limited or low-risk applications. In June 2023, the European Parliament voted in favour of a total ban on live facial recognition in public spaces. Although the new Act did not stipulate a full ban on live facial recognition surveillance, it provides that all high-risk AI systems will be assessed before being put on the market and throughout their lifecycle.

African governments have caught the AI bug but only a few African countries have an existing AI strategy; these include Mauritius, Egypt and Rwanda. It has been argued that international AI technologies and ethical deliberations are modelled without Africa in mind. Against this backdrop, it is more likely that Africans as people of colour will be subjected to AI ethical bias, privacy and data protection concerns, risks and harms. It is essential that African countries develop AI policies. Additionally, Africa should also take a strategic place in the ongoing debate on global AI regulation.

Abstract

The delict of passing off has evolved and expanded incrementally over time and remains a powerful means of protecting unique aspects of one’s products. While passing off seeks to prevent unlawful competition, courts are tasked with balancing which interests ought to be protected by passing off claims against the need to allow market forces and not to unduly constrain competition. The test for passing off has consisted of proof of reputation, misrepresentation and damage. A fundamental component of establishing reputation has been the need to demonstrate its distinctiveness. Notwithstanding this, the law on passing off has also developed to exclude ‘legitimate copying’ – especially where a particularly successful get-up transforms into a market standard. The Supreme Court of Appeal’s decision in Koni Multinational Brands (Pty) Ltd v Beiersdorf AG is an opportunity to consider how these concepts operate in a market where many products share similar features, and where the claimant controls a significant proportion of the market share. While Koni offers much food for thought, this article seeks to explore its treatment of distinctiveness in the context of proving reputation and to offer a pathway to develop this test in a manner that better promotes consumer interests and preserves fair competition.