Monday, 8 September 2008

When is a failure to exploit, exploitation?

Ever wondered why you can easily pick up a dvd set of "Friends" at a local Blockbuster but popular South African produced equivalents, like "Egoli", are as scarce as a power share clauses in a Mugabe power share agreement? In a piece published in The Times yesterday Tim Cohen looks at the debate and suggests that SABC's decision to do legal research on IP rights is encouraging. Afro Leo wonders if this is really a legal problem at all.

"What’s the problem here? Is this just another case of rapacious broadcasters, or is it a case of sleepy television companies failing, as usual, to see the business potential of what’s under their noses? Or is it a broader problem with the small size of the SA market, and its peculiar demographics?" asks Cohen.

The article concludes that "Things, however, could be changing. The SABC has committed itself to investigating the subject of intellectual property — the project is being undertaken by legal specialists Spoor and Fisher."

Although the mandate given to Spoor & Fisher is not clear, one wonders why legal specialists have been drafted in to solve the problem - is this really a problem of intellectual property laws on rights and ownership? Perhaps the laws may have some part to play - for example, is there a case for introducing compulsory licensing in situations where broadcasters fail to maximise opportunities? The answer though seems to lie in business. Isn't this "exploitation problem" more of a business opportunity for someone to do a deal with the broadcaster to commercialise the rights? In much the same way that traditional licensing agencies approach rights holders of say a sports brand to produce energy drinks, there seems to be little reason why a broadcaster would not be interested in negotiating a deal based on business plan for its retained rebroadcast rights. There are also other ways to stimulate merchandising for TV and film shows; Warner bros and Disney have capitalised on merchandising opportunities for their characters which in turn drives demand for their programs and shows. But they are also smart - try and get your hands on the limited edition Jungle Book release (as Afro Leo tried to do when policing his image) and you will find that a premium product that attracts value because simply because it is difficult to get. It is not clear how aligning RSA copyright laws with those in other countries would necessarily solve the problem.

For the full article click here.

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