Monday 9 September 2013

Darren Olivier

South Africa's Draft National IP policy - copyright notes

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)


·         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.


      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.

Darren Olivier

Darren Olivier

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