Licensing Executives Society disappoints
I went to talk about Creative Commons at a South African Licensing Executives Society meeting in Pretoria last week. I made the trip and spent the time because I was hoping that this would be a great opportunity to get IP lawyers involved in Creative Commons locally - especially when we haven’t had much input from them on issues other than the enforcement and extensions of copy rights in recent years.
The group seemed happy enough when I presented them with the Creative Commons concept. But the main goal of the seminar had been to talk about the Laugh it off case, and this was where our opinions clashed.
I had brought Christiaan Bester along with me to share with the group his insights into why he thought that the judgement was wrong. Interestingly, Chris had originally agreed with the judge, but when he came to analyse the case for a paper that he was writing on limits to freedom of expression, he changed his perspective.
According to the judge, this was not a case of limiting LIO’s freedom of expression. LIO could have said whatever they wanted about SAB, according to Judge Harms, as long as it ‘wasn’t in the course of trade’.
The problem with this test is that it rules out any response to brands in the realm of popular culture and condemns independent expressions like these to the art gallery and to those (very few of us) who can afford to spend time and money on publishing ideas that might oppose those of million-dollar brands (not to mention the money it takes to a fight a case that will inevitably go to court - even if you were well within your rights).
If brands have been able to enter the realm of popular culture - on Tshirts, mugs and school soccer fields - why are people not able to engage in a conversation with those brands? If people aren’t able to charge for those expressions in order to cover the costs of producing independent voices, how will those voices ever be heard?
I asked one woman what she thought people could do if they opposed a brand. He replied that they could ‘easily’ have written an article and sent it to a newspaper. When I asked how much impact would that have on the youth of this country that are increasingly being lulled by a culture of imported consumerism, the subject was changed.
LIO’s 2004 annual - so successful in delivering an independent view from the youth of this country last year - is now being threatened by SAB and may very well not be distributed. I was one of the authors who submitted an article for the annual. Most of us aren’t being paid for our work - we just want an opportunity to be heard.
If that isn’t limiting freedom of expression in this country I don’t know what is. I can only hope that some members of this society that have become so good at defending the rights of multinational and brand propaganda will dedicate some time to balancing their actions by volunteering some time to developing the local Creative Commons licence. I’m afraid that I am not very hopeful about any change in direction for these trigger-happy lawyers. I’ll be sure to let you know, though.