South Africa's draft IP Policy was
published last week for comment within 30 days.
What is the IP Policy?
It seeks to provide a national approach
to all issues around intellectual property. In other words it would be the
policy that guides future changes to, for example, legislation. It is important
because it records the relative priorities of the country with respect to IP
matters, and makes recommendations.
Copyright and Software
Today, this Afro Leo considers the
draft policy as it affects copyright and, in particular, the software industry.
This is useful against the other big news last week - Microsoft's (MS) purchase
of Nokia - a deal which is all about the perceived benefits of a
jointly controlled IP portfolio (see IP Finance synopsis here).
Put differently, the deal is an example of IP at work in the developed world by
developed companies that create jobs, educate, innovate and whose technologies
provide solutions.
In a RSA context, solutions created by
the software and device industry include facilitating access to information eg
online University courses as
well as services that assist in providing access and education around genuine
life saving drugs eg mapping technology.
These “access” examples are stated problem areas for RSA (ie restricted access
to information and drugs, often blamed on IP).
In addition, both companies (Nokia and
MS) have offices in RSA too - see here and here). In other
words, if Nokia and MS are examples of what IP can do, then embracing an IP
policy that facilitates their investment in a country like RSA or creating an
environment for a similar home grown company,
is not a bad aspirational benchmark for an IP policy, one would think. If so,
how does the draft policy document fare?
The following sections are particularly
relevant:
· Objectives (page 4)
· Types of IP (Copyright, US Digital Millenium Copyright Act and Fair
Dealing/Fair Use) (pages 14, 16)
· Chapter 6: Copyright, Software and Internet (page 29)
· Chapter 15: Enforcement of IP (page 42)
Notes
· The objectives do not appear to be controversial. It seeks to bring RSA
in line with the rest of the world but emphasises that we need to be aware of
RSA’s own developing needs which include “access to knowledge” and “local
empowerment, especially black empowerment”. The very fact that
RSA is considering a co-ordinated IP Policy is, of course, very positive.
· In general the document appears to promote "development",
sometimes at the expense of "enforcement"; the relationship between strong
enforcement as an innovation and investment incentive does not seem to be fully
recognised (albeit that there is a stated intention to “foster the enforcement
of IP” – page 42). How does a country attract investment from the likes of
Microsoft, Nokia and others, if there are not laws that protect them? The policy is not altogether clear on how it will achieve this balance.
· There is no specific mention of innovation, job or wealth creation
through the software industry. This does not mean, of course, that it is not
recognised. However, there appears to be view that enforcement and stronger protection for copyright would, inherently, be damaging because it reduces access to knowledge.
· There is a recognition that, digitally, South Africa's Copyright Act is
outdated and that there is no inspectorate to deal with “cyber counterfeiters”
and so, there should be ratification of “digital treaties”. It is not entirely
clear what this means but the sentiment seems correct.
· There is a view that fair use/fair dealing exceptions do not cover RSA
needs. These are likely then to expand, possibly to the detriment of copyright
holders. For specific cases this might be required but it is difficult to tell
what those will be from the draft.
· There is a strong emphasis by the government, on using open source
software (as opposed to proprietary software)
for projects. It is recommended that “copyright
legislation be amended in relation to the procurement of computer programs,
with a view to ensuring that options for using low-cost and or open source
software products are considered...”. This seems rather simplistic - if it
is a case that software owners are charging too much then it can be addressed
in other ways - see here,
for example.
· There is the possibility of a legislative change to
allow “reverse engineering of computer software programs” consistent
with its international treaty obligations. The meaning of this is unclear and
ought to be considered carefully, especially if the policy appears to seek to
exclude protection for software per se (see page 30) which would likely be
a disincentive to the software
creators.
· There is a recommendation to extend the fair use
provisions to include “making and distributing copies from electronic
sources (which presumably could include source code)” for education and
research, commentary and review. Afro Leo notes that this is already an
exception in the Act (see Section 19(b)).
· There is a hesitancy to accede to the WIPO Copyright Treaty, DMCA and EU
Database Directive. “The DCMA and EU Directive restrict the number of [free]
downloads, whether for commercial or personal/research use.” Again, the
Policy is not clear but will no doubt create concern from proponents of strong IP policies.
· Common strategies are suggested at regional level (SADC and AU) for
enforcement. This hints toward a regional customs authority which seems
positive.
Conclusion
In general, the draft IP Policy is noble in its objectives and its form, but contains some vague and worrying statements and recommendations for the software industry.
Readers (even co-bloggers) may well have strong divergent views and are encouraged to express them.
*Many thanks to Marius Haman for alerting this Afro Leo to the deal with Nokia and providing published deal information, and to Susan Olivier (Adams & Adams) for providing Afro Leo with the draft Policy.
