Moral Rights and Freedom of Expression

Filed under: General — andrew @ 10:05 pm

Obviously the extent of the moral right in South Africa is is affected by freedom of expression, guaranteed by section 16 of the Bill of Rights .

In very rough terms then it seems that under the constitutional dispensation the moral right or right of integrity can properly be invoked when the use of a work violates the right of dignity set out in the Bill of Rights in section 10.

So for a use of a work, permitted by copyright, to violate the right of integrity it wouldn’t be enough that the creator simply disagreed or felt uncomfortable with the use of the work. Rather a creator trying to use the right would have to show that, from what the law calls an objective perspective (a useful fiction) the use of a creators work violates her fundamental dignity.

It isn’t entirely clear exactly the right would prohibit so a court would probably state that it depends on the particular circumstances. As a matter of academic opinion and not legal advice, it would have to be quite extreme, e.g. a right wing racist site misusing the work of a black artist.

Moral Rights and the iCommons

Filed under: General — andrew @ 10:00 pm

This weekend (25-6 June) we are at the iCommons Summit in Harvard. One of the most fascinating issues to come up is that of moral rights. Moral rights are non-economic rights and usually include the right of attribution; to be named as the author. IP academics call this the right of paternity, a term loaded with ideological assumptions about creativity. The right is often called the right of integrity, which gives the author the right to object to distortions of the work.

Unlike copyright and related rights the moral right(s) cannot be alienated, sold, donated or transferred. The creator retains the rights, and cannot give them away.

The intellectual origin of Moral rights is the Continental tradition which conceives of intellectual property rights as aspects of the personality of the lone, Romantic author figure. This view sees moral rights as protection for the artistic honour of the creator.

South Africa has incorporated moral rights because its included in the Berne Convention; a multilateral copyright treaty. Section 20 of the Copyright Act provides:

“20. Moral rights

(1) Notwithstanding the transfer of the copyright in a literary, musical or artistic work, in a cinematograph film or in a computer program, the author shall have the right to claim authorship of the work, subject to the provisions of this Act, and 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: Provided that an author who authorizes the use of his work in a cinematograph film or a television broadcast or an author of a computer program or a work associated with a computer program may not prevent or object to modifications that are absolutely necessary on technical grounds or for the purpose of commercial exploitation of the work.”

It’s about free speech, beer and trademarks – Where constitutional law hurts the zamalek

Filed under: General — Heather Ford @ 9:39 pm

by ccSA volunteer, Chris Bester

The South African Constitutional Court handed down its judgment in the LIO matter on Friday 27 May 2005. In a unanimous judgment, the court agreed with LIO’s submission that South African Breweries had not shown that LIO’s parodying of its “Black Label” trademark was likely to have caused economic harm to the brewer’s sales of black label beer. SAB had argued that it was not necessary to show actual harm, but only a likelihood of a loss of sales. The court held that the test proposed by SAB was not in line with the demands of section 16 of the Constitution which guarantees the right to freedom of expression. If SAB’s contention was to be accepted, it would place undue importance on the rights of trademark holders at the expense of a vibrant robust democracy that recognizes the right to freedom of expression. Having reached this conclusion, it was not necessary for the court to engage in an evaluation of the expressive value embodied in LIO’s parody of the “Black Label” trademark. The court did however indicate that all forms of expression, except for the limited category of speech excluded by section 16(2) of the Constitution enjoyed protection. Since LIO’s parody did not fall under this class, it clearly enjoyed constitutional protection.

The outcome of the case finally signals the death knell to those intellectual property lawyers who have regarded their subject as immune from Constitutional attack.

ccSouth Africa and ccBrazil announce a joint project at the iCommons Summit

Filed under: Announcements — Heather Ford @ 9:22 pm

ccSA legal lead, Andrew Rens and I are at the Harvard Law School for the first cc iCommons Summit. It’s incredibly exciting. Over 80 people from around the world debating and finding common solutions to the challenges of an organisation growing at an amazing rate. Ronaldo Lemos, Director of ccBrazil, and I took the opportunity to officially launch our partnership project called ‘Creating Southern Dialogue on IP, Media and Culture’. It’s a 18 month project sponsored by the Ford Foundation to develop local case studies and stories around how people in South Africa and Brazil are sharing culture in alternative ways.

‘Digital revolution rocks cosy copyright establishment’

Filed under: General, Press — Heather Ford @ 7:31 am

Probably our most high-profile article yet, this great piece by Alistair Otter about Lawrence Lessig’s visit to South Africa and the HSRC case study has done wonders for ccSA. Ironically, you can’t get the whole story online unless you’ve paid a subscription fee, but you can email me (heather at creativecommons.org) if you want a scanned copy – that’s fair use, naturally ;)

‘When the musicians David Byrne, Paul Westerberg and The Beastie Boys allowed their music to be included on a CD given away with the November issue of Wired magazine, they were in no doubt that their songs would be “pirated” by fans. In fact they encouraged it.’ See this link if you’ve subscribed.

We’re live!

Filed under: Announcements — Heather Ford @ 5:56 am

News just in: Creative Commons South Africa licences went live late last night! Congratulations and thanks to Andrew Rens and the Creative Commons HQ for making this happen – its been quite a journey! Now you can replace the US licences with our own jurisdiction specific ones. Just go to ‘publish‘ on the Creative Commons website, choose your conditions and specify ‘South Africa’ in the jurisdiction. You’ll then be taken to a page with a link to the South African human-readable code that, in turn, links to the lawyer-readable code. The Afrikaans and Southern Sotho versions should be available soon!

Commons-sense conference updates

Filed under: Announcements — Heather Ford @ 6:12 am

From May 25 to 27, 2005, 150 delegates from 20 African countries, the US, UK, India and Brazil gathered in Johannesburg for the “Commons-sense” conference, hosted by the LINK Centre at Wits University’s Graduate School of Public & Development Management (P&DM).

Funded by the International Development Research Centre (IDRC), the full title of the conference was “Commons-sense: Towards an African Digital Information Commons,” and it brought together people and projects from varying disciplines, all committed to a strong African role in regeneration of the public domain.

The key aim was to figure out how electronic networks and digital applications can be harnessed by Africans and African institutions in ways that will improve knowledge dissemination, creativity, innovation and economic development.

Read more about this landmark conference to launch Creative Commons South Africa and to map Africa’s role in the African Digital Information Commons >>

Enter the Remix Digital Culture Competition!

Filed under: Featured Content — Heather Ford @ 5:57 am

gilThe prize: R6,000 cash!

To enter the competition, produce either one of the following:

• a digital video (max. 60 seconds); OR

• a digital artwork; OR

• a digital info-graphic

that, in your view, expresses the essence of African Digital Creativity, Remixing and Innovation.

Interactive work that requires an internet connection is encouraged.

Deadline: 31 July, 2005

Email submissions to: HFordSA@gmail.com

All submissions will be licenced under the Creative Commons Attribution 2.5 licence (see http://creativecommons.org/licenses/by/2.5/ for more details). All entries will be attributed to their author with a link back to the Commons-sense website where they will be hosted. Make sure you get permission from any collaborators to use this licence in your work!

For references, re-mixing raw materials, and re-mixing examples, go to: ‘Free Culture’ by Lawrence Lessig www.free-culture.org; www.creativecommons.org; the Internet Archive; and http://za.creativecommons.org.

For more details, visit the Commons-sense website.

Launch Party Inspires

Filed under: Press — Heather Ford @ 5:40 am

Wairagala Wakabi, Highway Africa News Agency, Johannesburg

Creative Commons (cc), the growing global movement that aims to relax restrictions on the fair use of intellectual property, launched its South African chapter at a festive inaugural event in Johannesburg last night.

More >>

Creative Commons launched in SA

Filed under: Press — Heather Ford @ 5:31 am

by Alistair Otter, Tectonic Magazine

Creative Commons, the growing global movement to relax restrictions on the fair use of intellectual property, launched its South African chapter in Johannesburg this week.

Creative Commons founder Larry Lessig, speaking at the launch event, described Creative Commons as recognising the need for sharing works and cited several examples of how CC was being used to develop new artistic products. He said Creative Commons turned thousands of consumers into creators of knowledge in world dominated by the consumer culture.

Yesterday Lessig opened the “Towards an African Digital Information Commons” conference at Wits University’s LINK centre with a brief introduction to the philosophy underpinning the Creative Commons sense as well as a biting attack on the US government’s support and propogation of the Trips (Trade Related Aspects of Intellectual Property Rights) Plus agreements.

Lessig described how there were many creations that were “non rivalrous”. These include digital works of art and writing that can be widely distributed without depriving the original creator or owner of the product.

“The problem is that most policy makers are opposed to the commons. They are convinced the commons are evil.”

In the US, he said, legislators had created a scenario where “sampling” (re-using or extracting) music for use in another musical work without a licence has been declared piracy. “The problem is that the process to get a licence to sample a piece of music is costly and very difficult, making it a non-option for most musicians. The message sent out is ‘get a licence or do not sample’.”

“These ‘costly’ elements protect the powerful,” he said.

Lessig said that challenge is “to get these people to recognise that the commons has its place”.

He joked that advocates of the commons were “commonists”, something very different to communists, although they were sometimes mistakenly thought of as the same. “The move to the commons is in fact a move away from regulation.”

Lessig closed the session with a strongly-worded attack on the Trips Plus agreements being proposed and advanced by the US and other European nations. “There is something deeply unethical and contradictory in what the US government is doing it pushing the Trips Plus agreements.

“And the US now finds itself in a contradictory position where it supports the free market when it concerns intellectual property but not when farm subsidies are concerned.”

This article is licenced under the Creative Commons Attribution-NonCommercial-ShareAlike License and was first pubishled in Tectonic Magazine.

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