But the consequences of ACTA are far more serious than a soap opera, for privacy, for freedom of expression and for access to medicines by the world’s poorest people. You should pay attention to ACTA. Here is a brief history of ACTA that explains why you should pay attention. This is a summary (i).

• ACTA was written in secret. Other intellectual property agreements are negotiated in public but the ACTA process was secret (ii).
• ACTA was negotiated by the trade representatives of the USA, Japan, Canada, Australia, New Zealand, South Korea, Singapore, Mexico, Morocco and the European Union. Trade representatives seem to think that their role is doing the bidding of industry lobby groups. Trade representative are not experts on constitutional law, due process, civil and criminal procedure, freedom of expression and privacy or intellectual property but that didn’t stop them from trying to make law on all those areas. Experts on those issues objected to ACTA while it was being negotiated but the trade representatives didn’t listen.
• ACTA was conceived as treaty to deal with physical goods that infringe trademarks especially cigarette smuggling. Politicians pushing for ACTA talk about the importance of innovation but don’t mention the pressure from tobacco brands.

Piracy?

Because of the pervasive secrecy of ACTA we don’t know when but at some point the treaty text was expanded to include all kinds of intellectual property and to talk of novel and very slippery categories “copyright piracy” and “trademark counterfeit” (iii). The agreement attempts to treats on-line infringement such as digital file sharing in the same way as smuggling fake brand name shoes.

Counterfeit?

Is ACTA necessary? There is an existing treaty that covers intellectual property law enforcement, and almost every country in the world has already agreed to that treaty. That treaty is TRIPS, the agreement on Trade Related Aspects of Intellectual Property law. TRIPS has an entire chapter on enforcement with strong enforcement provisions. I haven’t been able to find any research that shows that there is a problem with the enforcement measures required by TRIPS. The trade negotiators who push ACTA have never specified that the TRIPS enforcement provisions are problematic.

Without discussing TRIPS at all champions of ACTA claim that there is a threat of growing ‘piracy’ and ‘counterfeiting’ that threaten the ‘knowledge economy’. Therefore they say that ACTA is necessary. But this misses out important logical steps. Is there any reason to believe that this claimed growth is related to shortcomings in TRIPS? Is there any reason to believe that the provision of ACTA will make any difference?  The champions of ACTA never give those reasons, they seem to be unaware of the logical gaps in their claims.

But is there a growth in ‘piracy’ and ‘counterfeiting’? Even some opponents of ACTA begin their criticisms with an assertion that piracy and counterfeiting is growing but an examination of the studies on the problem shows that the best answer is we don’t know.

ACTA Champion Karel De Gucht

European Trade Commissioner Karel de Gucht is the chief public champion of ACTA in Europe. He and his allies often point to statistics published by the European Commission which is also the body that negotiated ACTA in 2011 as proof of a growing piracy problem. When you look carefully that the statistic they don’t show that. The European Commission statistics do show that 46% of all the articles seized were tobacco products. The statistics do show that 99% of the ‘medicines’ seized were ‘life-style medicines such as diet pills or Viagra’.  Should fake Gauloises and Viagra be a central pre-occupation of European trade policy right now? They don’t evidence an increase in infringement. (iv). A United States Government report that examined infringement  statistics used by industry and governments found that there isn’t any sound evidence of growing copyright and trademark infringement (v).  The European Commission statistics do state that 85% of the articles seized came from China, and China wasn’t invited to join the treaty negotiations.

But just because ACTA can’t achieve its stated purpose it doesn’t have consequences. Experts have warned about its effects on freedom of expression, privacy and access to medicines by the world’s poorest people (vii). One particular concern is that Internet service providers will be forced to police their users and disconnect them on if they are accused of infringement.

ACTA is not a done deal. Although the treaty has been signed by most of the countries that participated in the negotiation it hasn’t been ratified. In Europe, the European Parliament and each country has to ratify. Following widespread protests governments in Poland, Bulgaria, Netherlands, the Czech Republic, Slovakia, Germany, Lithuania, Romania and Austria stated they that would not ratify ACTA.  But ACTA isn’t  defeated either. The European Parliament could still vote in favour of ACTA this summer. The Liberals and Democrat group in the European Parliament have declared that they will vote against ACTA but conservative MEP’s could still vote for ACTA.

A clear defeat of ACTA in parliaments such as the European Parliament will demonstrate to the politicians who might support a vote in favour of ACTA or the negotiation of its successors that there is widespread opposition to the kind of enforcement theater represented by ACTA. But no is not enough, champions of ACTA have begun work in the G8 to write a replacement for ACTA should it fail.

Opponents of ACTA must call on MEP’s to pass a directive that specifically protects people against arbitrary disconnection from the Internet. La Quadrature du Net lists various ways that people are opposing ACTA in Europe.

UPDATE 1 May

ACTA could go either way in European Parliament.

UPDATE 3 May

FFII point out that the European Parliament Development committee ACTA rapporteur Mr Zahradil has produced a draft report in support of ACTA. It claims that because countries can exclude patents from the border provisions of ACTA that the international distribution of generic medicines needed by developing countries is no longer at risk. That is at best ill informed. There have already been cases in which generic medicines in transit through European ports have been wrongly seized because customs officials believed that the drugs violated trademark right.The customs officials are apparently unable to tell the difference between the pharmacological name of medicines and trademark names e.g. Amoxycillan and Amoxil (R).  ACTA would require those seizures.The deadline for amendments to the report is 8 May.

Notes

(i) I’ve written two full length law journal articles on ACTA, if you want to know more, or want to disagree vehemently then you should read them.  Collateral Damage: The Impact of ACTA and the Enforcement Agenda on the World’s Poorest People’ American University International Law Review Vol 26, No. 3 2011 and Enforcement Theater 35 Suffolk Transnat’l L. Rev. (forthcoming 2012).

(ii)The ACTA negotiating text was initially kept secret and publicly released only after it had been leaked. But even after the text had been released the negotiating process was secret. Proponents of ACTA insist that that is ok because trade negotiations are secret. But in the entire hundred and fifty year history of multi-party international intellectual property negotiations they have never been secret. ACTA is an international multi-party intellectual property treaty. ACTA broke with the way that treaties have been drafted since the creation of the UN system in the aftermath of World War 2. Multilateral agreements are negotiated through multilateral organizations that are part of the United Nations or the World Trade Organization. ACTA wasn’t negotiated through a United Nations body or the WTO, instead trade negotiators wanted to put together a ‘coalition of the willing’ so that they wouldn’t have to make compromises in the text.
(iii) Intellectual property lawyers don’t use those terms because precision counts in law. Industry lobbyists use those terms for their emotional impact on the public and policy makers. When those terms appear in international agreements then it is obvious who is writing the agreements.
(iv) The statistics do show more seizures of allegedly infringing goods, what they don’t show is how many of those seizures were actually found to be infringing, and they don’t show an increase in infringement just an increase in seizures. The statistics showing the growing number seizures were released to demonstrate the effectiveness of a Europe wide enforcement campaign. What they don’t tell is whether the increase in seizures is due to increased enforcement or an increase in infringement.
(v) United States Government Accountability Office, Report to Congressional Committees, Intellectual Property Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods, (April 2010).
(vii) I am one of those who are concerned about the impact of ACTA on developing countries, see Collateral Damage: The Impact of ACTA and the Enforcement Agenda on the World’s Poorest People’ American University International Law Review Vol 26, No. 3 2011.

Another advert in the ‘Real McCoy’ series has been spoofed by Nando’s a South African restaurant chain known for cheeky ads poking fun at politicians and the publicly unpopular World Cup advertising monopoly.

Commenting on the Santam/Dial Direct dispute Jeremy Speres suggested “Perhaps, with all the creative talent we have in this country, all those billable hours could have been spent on devising a tasteful retort?”

Whether or not they were aware of Spere’s suggestion it seems that Santam has taken that approach in its new ad responding to Nando’s.

Of course there are differences, Dial Direct and Santam are direct competitors whereas Nando’s and Santam are not.

Is there a basis in South African law for a court to prohibit Solidarity from using the slogan? After all South African law is governed by the Constitution and in particular the Bill of Rights, the Constitution is the supreme law. Section 2 of the Constitution states:

“This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. ” The Bill of Rights in particular over rides any other law; “the Bill of Rights applies to all law” (s8(1)). The Bill of Rights entrenches the right to freedom of expression (s16(1)
“Everyone has the right to freedom of expression, which includes ­

(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.”

The Bill of Rights also guards the right to fair labour practises (s23(1)) states that “Everyone has the right to fair labour practices.” The section goes on to set out specific aspects of fair labour practises such as the right to join a union. Because the Bill of Rights grants rights in respect of labour one would expect that speech about labour, and in particular speech which relates to the collective bargaining between unions and employers which stems from the right to form and joins unions is constitutionally important speech.

There are instances in which some limitation of a right in the Bill of Rights is allowed but that limitation would have to be justified. Justification requires that the reason for limiting the right be sufficiently important and also that the right be limited as little as possible.

The result of the constitutional protection of freedom of expression, including, and especially expression relating to collective bargaining is that a judge deciding an application by ABSA to prohibit free expression by Solidarity would require a compelling basis for granting even an interim order. South African courts, like courts in other countries that value freedom of expression usually don’t give orders that will have the effect of preventing speech, instead they allow someone aggrieved by speech free to make a claim for any damages that he might have suffered due to the speech.

Is there a basis on which a court can consider limiting Solidarity’s freedom of expression? Since this is a legal blog its not surprising perhaps even reassuring that I’ve inserted a disclaimer at this point. Press reports tell us only that Solidarity has received a letter from attorneys representing ABSA and that the letter intimated that ABSA would request a court to give an order prohibiting its use of the ABSA slogan and requiring that the stopabsa.co.za website be shut down. It is not clear from the press reports what the legal basis of the application to court would be if an application is made. The legal basis may or may not appear from the letter.

What follows then is a quick look at the possible bases for an application, these are defamation, copyright, trademark and disparagement.

Defamation:
For ABSA to succeed in silencing Solidarity on the basis that either the changed slogan or the website itself is defamatory it would have to convince a judge that (i) the slogan or website is defamatory and (ii) that the speech should be prohibited because it will suffer the kind of harm for which an award of damages won’t be adequate compensation. There is only reported case in South Africa in which a court was asked to prohibit speech on a website:

Tsichlas & another v Touch Line Media (Pty) Ltd

2004 (2) SA 112 (W). In that case the judge ruled that the best answer to bad speech is more speech. In that case Ms Tsichlas who alleged defamation had an opportunity to reply in the forum in which she alleged that she had been defamed. She was given an order prohibiting further speech by others.

For a Solidarity statement to be defamatory ABSA would have to prove that it was (i) intentional (ii) wrongful words(iii) that identify a particular person or persons and (iv) tend to demean the person/s referred in (v) the eyes of the right thinking members of the community within which the speech should be interpreted. Is is wrongful for a union to put a website criticising retrenchments by an employer? I don’t think that the Bill or Rights would allow a court to think so.
However even if the criteria that I have listed are met Solidarity could still claim truth in the public benefit, a defence that someone accused of defamation could raise. Since it seems likely that Solidarity would raise such a defence it seem unlikely that a judge wouldn’t give Solidarity the chance to be heard by for example issuing an interim ex parte order. The issue of whether the reworked slogan is defamatory requires quite different considerations to a factual claim such as whether ABSA is firing a specific number of people. Courts are familiar with laudatory language in marketing material such as “the best beer in the world” and appropriately courts tend not to take such hortatory language too seriously.
If someone were to a sue a brewery claiming to make the best beer in the world on the basis that another beer has received first prize at a global brewing contest a court wouldn’t entertain the idea that the slogan should be taken so seriously that the brewery could be regarded as having misled the consumer. ABSA’s slogan “Today, Tomorrow, Together” is apparently intended to imply continuity. Solidarity’s reworking of the slogan as “Today, tomorrow, goodbye” seems to be that retrenching staff, including some who worked for ABSA for 30 or 40 years does not demonstrate the claimed continuity. Both slogans operate as a level of abstraction and emotive connotation that it would be difficult for a court to decide if the words “Today, Tomorrow, Together” are true and the words “Today, tomorrow, goodbye” are false when applied to ABSA. Exactly what kind of evidence could one lead?

Trademark:
Is the use of the ABSA slogan which is presumably registered as a trademark in South Africa, or the word ABSA in “stopabsa.co.za” a trademark infringement? Solidarity isn’t using the words to sell banking services so any claim would have to be in terms of the “anti-dilution” provisions. South Africa has the leading case in the world on the interaction between a claim under an anti-dilution provision in a trademark statute and freedom of expression: Laugh it Off v South African Breweries. In Laugh it Off the Constitutional Court ruled that South African Breweries should have alleged and proved actual harm, that is people not buying their beer because of the parody T shirts sold by Laugh it Off. To obtain a court order prohibiting use “ABSA” or the slogan I understand the Laugh it Off case as requiring ABSA to produce some kind of evidence showing that people are not banking with them as a consequence of the use of the trademarks by Solidarity, and at that point a court would still have to engage in an enquiry whether a prohibition on use stifles freedom of expression too much and whether ABSA shouldn’t simply have to sue for any damages that it could prove.

Copyright:
Is there copyright in a single word or phrase in South African law? South African copyright law requires that a “work” should be original (that is not copied from another) and reduced to a material form. It also provides that copying a small portion of a work is not a copyright infringement. There are some commentators who claim that copyright can subsist in a single phrase although they tend to undercut their own arguments by then making arguments that derive from trademark that continued use and association can render otherwise banal phrases into some form of “property”. That is trademark law not copyright. I am sceptical that a three word alliterative phrase is sufficient to constitute a work. But if a court were to take that unique approach then the question would arise who the author is.
A quick google search reveals that the N.J. Dept. of Community Affairs, Division on Aging, published a book entitled “Today, tomorrow, together” in 1981. But the state of New Jersey wasn’t the first to use the phrase because in 1956 the phrase was used by the (US based) National Health Council for its book “Guides to action on chronic illness, today, tomorrow, together”. It seems unlikely that ABSA has a deed of cession from the National Health Council but I am willing to be surprised on this issue. Of course if a court were to rule that there is copyright in a single word or phrase then the question would arise whether Solidarity’s use falls under one of the exceptions such as criticism, and fair quotation. Is it fair? Remember the point of copyright law is not to enable corporations to censor speech they don’t like but to allow authors to charge for copies of their works. There is no market in which people buy or rent the slogan.

Disparagement:
Disparagement is a form of unfair competition. It is a common law delict, a sub-set of unfair competition. The pre-Constitutional formulation of the delict requires an applicant to show at leas probable damage through loss of custom as a result of the allege disparagement. Since the courts are required to develop the common law to accord with the Constitution it is arguable that a showing of actual damage should be required. But in this case Solidarity is not a competitor of ABSA, its a union fighting an employer. It would be an astonishing extension of the common law to use an anti-competition delict against a union.

This all too brief look at the legal bases on which a court could silence Solidarity suggests that there isn’t a legal basis compelling enough to over-ride freedom of expression.

Instead the mere threat seems to have generated quite a lot of press attention. ABSA may suffer from the Streisand effect.

*Thanks to Bob Jolliffe for pointing out that I had mistyped stopabsa.co.za as stopacta.co.za. The Stop ACTA site is here.

Photograph of Jane Alexander's The Butcher Boys under CC BY NC SA licence

The video features a horned creature that was influenced by The Butcher Boys a plastic sculpture created by Jane Alexander and kept in the South African National Art Gallery. A still from the video shows the creature.

Horned Creature in Tension Trailer, used in terms of copyright exceptions

According to accounts in the press Jane Alexander, the artist who created the sculpture was unhappy with the use made of her work and retained a firm of attorneys. Die Antwoord immediately withdrew the video. The South African Art Times has an interesting account. Go and read it now.

Back? Then you’ll have read that zef rapper Ninja claims a friendly relationship with Alexander, that the horned creature in the video was made in “homage to one of our favourite SA icons”, his surprise at Alexander’s objection and the immediate withdrawal of the video. The action seems to be over.

But the reactions are not over, and they raise important legal questions to which there does not seem to be an easy answer. 

Linda Stupart questions “whether we .. have the right to be all postmodernly pastiching this iconic image of Apartheid oppression”.

Emma Bedford, an art expert at Strauss & Co claims that “While referencing and sampling have become the order of the day across the arts, the rights of the artist to assert their authorship and contest the wholesale theft or corruption of their work must be able to be asserted.”

Kathryn Smith who lectures Visual Arts at Stellenbosch University commented “The fact is that Die Antwoord goes viral internationally and will reach more people than a local artwork could conceivably do, and will thereby profit from a video which clearly references this iconic work.

Mary Corrigal asserts that “in this copy-and-paste age of appropriation and pastiche, asserting originality or ownership over cultural property has to some degree become a futile, if not unnecessary activity, though cases of ownership are constantly being tested in courts all the time. It is not just artists or musicians who regurgitate and recycle material; almost everyone who spends anytime on the internet has repurposed imagery.”

There is a raging public debate in social media. Much of the debate has been characterised by mistaken claims that referencing an artwork is equivalent to copying or adapting it, the conflation of political and aesthetic claims with legal issues and the confusion of copyright with moral rights. Of course the law applies in a political context, and has unarticulated aesthetic preferences so that the issues necessarily affect each other. But the reason for confusion is more fundamental. Note how Stupart asks whether “we” have the right. I understand her to be making an entirely non legal argument, the “right” in question being a proxy term for whether the behaviour is appropriate. It is a symptom of our contemporary moral impoverishment that it is difficult to imagine couching the question in terms of virtue or even principle, instead cultural and political discourse must borrow its language from law. There is also no cultural institution which could have resolved the issue, and instead the artist turned to the legal system. Stupart is posing an important question and the rights language which she uses is the language of contemporary moral and political discourse which seems to be unable to rid itself of a confusing and confused reliance on legal tropes.

But the law doesn’t or at least shouldn’t exhaust the question of what art is or is not appropriate in South Africa in 2012. Whether particular artistic expression should be allowed because of freedom of expression is a political as well as legal debate, but even if an expression is legally permissible that does not mean that it is politically responsible or culturally appropriate. I haven’t seen anyone claim that when the law does prohibit particular expression that it follows that that expression is automatically immoral or ugly. The converse is also true, if the law permits particular artistic expression we can still argue about whether the artist should have done what he did, and we can boycott galleries and shops that show and sell the artwork and withhold our donations from those who support the artist, these actions form part of the same liberty as the freedom of the artist.

A debate about whether it was appropriate for Die Antwoord to draw on The Butcher Boys as they did, and whether it was appropriate for Jane Alexander to object, and to take legal action will be a better debate when it is clear what the legal questions are, and to what extent current South African law provides answers to those questions.

The first legal question is whether there was any infringement of an exclusive right set out in the 1978 Copyright Act. The artist, or persons to whom she cedes her copyright, is the only person who may authorize copies or adaptations of an artwork. The copyright holder has the exclusive right of authorizing the inclusion of the work in a cinematograohic film (that terms includes video clips).  The artist also has a ‘moral right’ (actually a legal right referred to section 20 of the Copyright Act as a ‘moral right’ ) “to object to any distortion, mutilation or other modification of the work where such action is or would be prejudicial to the honour or reputation of the author”. These rights are all subject to exceptions (3).

Section 20 goes on to state that an infringement of the section should be treated like an infringement of copyright. The moral right is not transferred with the copyright. Moral rights in copyright legislation originate not in the utilitarian scheme of Anglo-American copyright law from which South African copyright law is derived but in the French droit d’auteur  tradition.  In that tradition moral rights are routinely used by artists against subsequent copyright holders, pitting Mammon against the Muses.

How does the moral right overlap with the copyright rights? The moral right operates only when there is a change to the work. Simply copying the work cannot trigger the moral right because some modification is required as one of the  essential elements of an infringement. How does the exclusive right to authorize adaptations intersect with moral rights?

Adaptation is defined in the Copyright Act: ‘ “adaptation”, in relation to – an artistic work, includes a transformation of the work in such a manner that the original or substantial features thereof remain recognizable.’ It is not clear from the Copyright Act whether what is required is a modification of the original sculpture or painting or whether modification of what would otherwise be a copy is an adaptation (4). Both the adaptation right and the moral right require modification of the work, not just re-use of some elements. The question is:  is the second work a modification of the first work or does it merely incorporate some elements of it? Is the costume used in the Ten$ion trailer a modification of the sculpture or does it merely incorporate some elements of it?

Does the video infringe the copyright or moral rights of the author? The sculpture itself was not incorporated in the video, nor does the video show another sculpture copied from the statute. Instead Die Antwoord claim that elements of the video were inspired by the sculpture (5).  It would require a close analysis of both sculpture and video to ascertain whether the video is an adaptation or just bears some similarities to the sculpture.  One artwork can reference another without being an adaptation. Think of  T S Eliot’s The WasteLand which contains numerous literary references without being an adaptation of any of them.

If the mask and costume used in the video is an adaptation the question that follows is whether it is authorized by an exception in copyright law.

Regular readers of this blog will recall posts on the Yada Yada parody of a Santam advert. In one of those posts I discussed the fair quotation provision in South African Copyright law.

“Section 12(3) states: ‘The copyright in a … work which is lawfully available to the public shall not be infringed by any quotation therefrom, including any quotation from articles in newspapers or periodicals that are in the form of summaries of any such work: Provided that the quotation shall be compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose and that the source shall be mentioned, as well as the name of the author if it appears on the work.’ Fair practise is not defined although Professor Dean suggests that it should follow the four factor analysis of fair use in United States copyright law.”

But does the section 12(3) exception apply to artistic works. The way that the 1978 Copyright Act is structured is that each category of work such a literary works or artistic works has a different idiosyncratic list of exceptions. Some of those exceptions are created by reference to exceptions for other categories of works. It can be quite tricky to figure out which exception applies to which kind of work if you just read the Act.  I tend to use the table setting what applies to what, you can find the table on page 15 of the Open Review of the South African Copyright Act.

Section 15 which sets out the exceptions that apply to artistic works states that s12(3) [the fair quotation exception] does not apply to artistic works.. So the fair quotation exception does not apply to artistic works.

Another possible exception is s12(1) ‘fair dealing’ which includes criticism or review. It is possible to  make an argument that when one art work comments on or refers to another that this could constitute criticism. One merit of the argument is that it would allow a court to save the Copyright Act from a declaration of unconstitutionality. The Copyright Act is apartheid era legislation which must be tested against the Constitution. If the Act limits the rights in the Bill of Rights unjustifiably then it must be struck down.

Section 16(1) of the Bill of Rights sets out the right to freedom of expression and explicitly includes freedom of artistic creation.  If the Copyright Act is interpreted so that it does not enable a court to balance the competing rights of the artist and the copyright holder (often not the same person) and the rights of others artists and the rights of the public the the Act violates the right to freedom of expression unconstitutionally, and should be struck down.

The moral rights provision was enacted in 1978 in the per-Constitutional era of South African law. It was enacted to comply with South Africa’s treaty obligations from the Berne Convention. The formulation of the right in the Copyright Act leaves a number of questions about the right unanswered. There have been no reported cases on moral rights in South Africa which could have offered guidance.

The moral right is obviously a limit on freedom of expression. The limitation would have to be justified. One factor in a justification’s analysis is the right to dignity in the Bill of Rights which could weigh in favour of the moral right. Case law from other jurisdictions suggests that to qualify for infringement of the right the issue is not that the use made of an artwork was made without permission, nor that it simply offends the artistic sensibilities of the artist e.g. dance remix of heavy metal song. Instead the use must really be fundamentally repugnant for example neo Nazis using artwork made by a Jewish artist. So where does the use by Die Antwoord fit? Was it a tribute to Jane Alexander’s work? Or was it “distortion”?

(1) For those unfamiliar with the Afrikaans language “Die Antwoord” means “The Answer”.
(2) Lady Gaga is not the question, the question is who has the most bizzare musicians in the world.
(3) The Copyright Act does not state in so many words that the exceptions to the exclusive rights of copyright set out in Chapter 1 apply to moral rights. Instead it states that infringements of the moral right must be treated as infringements of exclusive rights in terms of Chapter 2. Section 23 in Chapter 2 states that doing an act which the author has the exclusive right to authorize, as specified in Chapter 1, without authorization constitutes an infringement. Chapter 1 provides exceptional actions by which copyright “shall not be infringed. If a court were to rule that the exception do not apply to moral rights the result would be that it would be even harder to justify the way in which the moral rights provisions limits constitutionally protected expression, and therefore make it more likely for a court to find that the moral right section is contrary to the Bill of Rights and should be struck down
(4) One possible consequence of the legal uncertainty is that the mask could be regarded as an adaptation because it is not a transformation of the original physical sculpture. Therefore it would not be not infringing.
(5) It isn’t clear if there was a series of “copying” in which Die Antwoord modified digital images of The Butcher Boys in the physical process of constructing the mask. The Copyright Act defines copy as reproduce, and reproduction in turn ‘in relation to – an artistic work, includes a version produced by converting the work into a three dimensional form or, if it is in three dimensions, by converting it into a two-dimensional form’. If the facts supported it it would be possible to make the argument that the conversion of the three dimensional sculpture into a two dimensional image, and then the conversion of the image into a three dimensional mask and costume amount to copying. However the end result although similar is not the same and is therefore not a copy. For artistic works an adaptation is not by definition a copy.

Bear in mind that the map shows the standard term for literary, musical and artistic works. Other terms apply to sound recordings, movies  and photographs. The term of a particular work will be affected by a number of other considerations including whether the work was anonymous or pseudonymous, the rule of the shorter term and whether there is a work for hire provision in the applicable copyright law.

The map is up to date for 2010. Click on the map to enlarge.

World Copyright Terms (created by Balfour Smith of Duke University)

Today if you live in South Africa you have received an instalment of the creativity that you’ve been paying for; the books, movies and sound recordings that you supported through the award of copyright monopolies now belongs to you the public. Books by Ernest Hemingway (For Whom the Bell Tolls, Islands in the Stream) and Dashiell Hammett (The Maltese Falcon) are now in the public domain. The writing of Frantz Fanon psychiatrist, philosopher and post colonial theorist are now in the public domain in almost all of Africa. Books and articles by Carl Jung can now be freely copied and adapted.

Movies and sound recordings released in 1961 are now in the public domain in South Africa*; hit songs include Lets Twist Again, Walking Back to Happiness and A Girl Like You by Cliff Richard and The Shadows, and movies include One Hundred and One Dalmatians, West Side Story and Breakfast at Tiffany’s. Wikipedia lists more sound recordings and movies released in 1961

But what if you live somewhere else in the world? If you live in a country that applies the international standard for copyright terms established by the Berne Convention then the same works are free in your country. If you are unfortunate enough to be in a country that has departed from the international standard in the Berne Convention then you probably have a long wait. If you live in the United States then you have no published works entering the public domain to celebrate. Professor James Boyle at the Center for the Study of the Public Domain at Duke University explains:

“What is entering the public domain in the United States? Nothing. Once again, we will have nothing to celebrate this January 1st. Not a single published work is entering the public domain this year. Or next year, or the year after that. In fact, in the United States, no publication will enter the public domain until 2019.”

How do you figure out if something is in the public domain in South Africa?

For musical, literary and artistic creations (what copyright law calls ‘works’) the term of copyright in South Africa is the life of the author plus fifty years. The fifty years is actually a bit more than than fifty years, because it ends at the end of the year on which the author died. As a result, the 1st of January every year is the day on which new works enter the public domain, or least should enter the public domain if copyright terms are not extended again.

How it works is this. If an author died during 1961 then in South Africa, that author’s works enter the public domain in South Africa. It doesn’t matter whether that author wrote in an another country which has retrospectively extended the copyright term, such as Germany, in South Africa you are free to copy, change and distribute the entire work.

If an author died before 1961 then her work is already in the public domain. If the author died after 1961 or is still alive then the work is still in copyright, unless the work was published pseudonymously or anonymously and the author’s actual identity was not revealed, in which case the copyright expired fifty years after publication. For  sound recordings and films copyright expires after fifty years in countries that use the Berne Convention international standard.

What else enters the public domain today? Please use the comments to list movies and sound recordings released in 1961, and authors, artists and composers who died in 1961.

Others whose works enter the public domain today in South Africa:
Authors;
H C Bailey, Joanna Cannan, Louis Ferdinand Céline, Jessie Redmon Fause, Kenneth Fearing, Moss Hart, Claude Houghton, George S. Kaufman, L A Lewis, Oliver Onions, Norvell W Page, Isabel Paterson, Frank Richards, E Arnot Robertson, Henry Morton Robinson, Mazo de la Roche, Alice Grant Rosman, Clark Ashton Smith, Angela Thirkell, James Thurber, Patricia Wentworth,
Composers;
Thomas Beecham, Percy Grainger
Artists;
Eero Saarinen (architect), James Thurber (Cartoonist)

*Although a movie or a sound recording is in the public domain a literary or musical work that is used in it may still be in copyright. That doesn’t meant that you can’t remix the the movie or sound recording but it does mean that your use of the literary or musical work (if it is in copyright) must be either licensed or permitted under an exception. An example of how this works; Are you lonesome tonight? was released by Elvis Presley in 1961 but the music and lyrics date from the 1920’s so there are no restrictions on remix.

Edited to add: Here is a more extensive list of creativity that enters the public domain in life + 50 jurisdictions.

Referring to the quasi-religious nature of bourgeoisie pre-occupations with food he claims: “Food is at the center of elites’ anxieties about science and modernity, yet the truth is that it has become a scapegoat, or perhaps I should say scapetofu, for a host of imaginary sins we associate with technology. The timing of this obsession is no surprise; never before has such complex technology occupied such a central place in the economy, to say nothing of daily life.”

He goes on to claim that the roots of this suspicion lie in ignorance, narrow specialisation and, citing the ambivalent history of nuclear technology, the negative consequences of some technologies. He intimates that concerns about the unintended consequences of knowledge amount to a superstition. But something important is missing from his account.

He mentions that at one time asbestos was touted as “a wonder product”. What he does not talk about is that there were reports about negative health outcomes associated with asbestos as early as 1898 but appropriate regulation was introduced in the United States only in 1989. It wasn’t ignorance that caused that delay, it was the desire to make a profit, and the utter failure by regulators to protect the public.

Mining companies continue to refuse the claims of miners whose lungs were irreparably damaged so that those companies could profit. The Anglo American Corporation is one of those, resisting the claims of miners from the Northern Cape while miners die. Payouts to the estates of dead miners are smaller than compensation to living miners.

There are many accounts that Akst ignores in which people were harmed not by  science or technology but by people making money selling poison and the authorities failing to hold them to account. The root of the suspicion that Akst considers needless is not ignorance but knowledge, knowledge not of science but of the kind of world in which we live, a world in which marketers lie glibly, cloaking themselves in the authority of science, a world in which politicians are the creatures of corporations that pay their campaign contributions, a world in which regulations are written to suit the industries being regulated.

Akst writes: “Food irradiation is a great example of a safe, effective technology that could save lives, if only people could get over their terror of it.” But once again Akst fails to mention the larger story. The irradiation of meat is championed by the meat processing industry in the United States because it is cheaper than making sure that meat is not contaminated with faeces during slaughter. Irradiation is intended to kill e.coli that might be present in the faeces of slaughtered animals. Akst suggests that the main question is whether the irradiation is effective or not. But that is not the question. The question is whether you want to eat shit sprayed meat whether not it is irradiated?

*Chattering classes is a termed used by some members of the elite in America and England in a self defeating attempt to suggest that they are somehow exempt from the bourgeoisie triviality suggested by the term while they remain ironically unconscious that only members of the chattering classes use the term.

** E.R.A. Merewether & C. W. Price, “Report on Effects of Asbestos Dust on the Lung” H.M. Stationery Office, 1930

The problem that law (or perhaps it is lawyers) has with new ‘technologies’ stems from law’s orientation in time; law changes relatively slowly, and law is orientated towards the past. The result is three related sources of dissonance.

“The strongest impacts of an emergent technology are always unanticipated. You can’t know what people are going to do until they get their hands on it and start using it on a daily basis, using it to make a buck and u­sing it for criminal purposes and all the different things that people do.”

Those are the words of William Gibson in a recent interview in The Paris Review.

The result is that any prediction of how a particular new technology will change the future must necessarily be wrong, probably in important ways. That gap between prediction and experience has become a feature of the present. Gibson’s own career illustrates the point nicely, he co-founded a movement in science fiction writing that was critical of the simultaneously bland and triumphalist vision of (white, male and wealthy) scientists ruling humanity and conquering the physical universe. Gibson opposed a dystopian future to the utopian futures popular in science fiction at that time. Three decades later he sets his work in (a slightly alternative) present, a present characterised by the same ambivalence about the products of human ingenuity, and the same expectation gap between those who first introduce those products and how others experience them. Or in Gibson’s own words: “The future is already here — it’s just not very evenly distributed.”

We could call that the prediction or expectation problem. Both positive and negative outcomes cannot be completely predicted and so a cost/benefit analysis of a particular rule just isn’t possible.

While being unable to predict negative outcomes is problematic it is unexpected positive outcomes that far more difficult. That is because in any economy those who are currently most successful and thus have the most money and power are also those who business models are likely to be disrupted by new technologies that simultaneously introduce greater efficiencies and eliminate their profit margins. This is a type of collective action problem. An economy may gain efficiencies and most people stand to benefit, but a small wealthy and powerful group stand to lose that very wealth and power. This could be called the Hercules problem; only if a new technology or firm is strong enough to survive the attempt to strangle it at birth can it survive long enough to be valued.

A third problem is that new technologies often raise novel ethical issues. Is it ethical for employers to monitor the private email of employees? Should patents be awarded over human genes. Society, the collective of people in whose interests laws are (avowedly) made, hasn’t yet had time to develop a consensus on such difficult issues. This could be called the ethical-consensus problem.