Like many other developing countries, South Africa acquired its intellectual property system from its colonial power. As a self-governing ‘dominion’ within the British Empire, South Africa became a signatory to the Berne Convention in 1928. The Berne Convention, the oldest and most important multilateral copyright treaty, introduced the principal of “national treatment” to international intellectual property law, stipulating that a member state must afford protection to other member states in the same manner as it provides protection to its own works.

When it became clear that some member states weren’t giving effect to their obligations under Berne, the World Intellectual Property Association (WIPO) led the development of a new agreement entitled the ‘Trade Related Aspects of Intellectual Property Rights’ (TRIPS) agreement, which came into effect in 1995. The TRIPS agreement stipulated minimum standards for countries to comply with in order to protect and enforce copyright in their countries.

The South African Copyright Act of 1978 governs copyright law in the country and has been updated on numerous occasions to comply with the minimum standards of the TRIPS agreement. South Africa participated in TRIPS as a developed country and has therefore not been able to take advantage of the mechanisms that allow developing countries to come into compliance with TRIPS at a later stage.

It is interesting to note that the United States wasn’t always such a keen advocate for intellectual property rights enforcement. Until fairly recently, the US considered itself a developing country, ignoring the intellectual property rights of countries outside the union on the grounds that it needed to acquire knowledge and innovations from the outside world in order to catch up to technological development in Europe. As soon as the US’s exports of IP outnumbered its imports, however, the country signed onto major international agreements and has continued to push for enforcement of its intellectual property rights in countries – including developing ones – around the world.

Many people believe that the US and other intellectual property (IP) exporting nations are leading a trend that is seeing increasing private control over information and knowledge. Although South Africa’s legislation complies substantially with the minimum standards of the TRIPS agreement, there are concerns that intellectual property rights are not being effectively enforced in the country. As South Africa continues to comply with increasingly restrictive copyright controls put forward by the US and other IP exporting nations, the digital divide that keeps developing countries out of the knowledge loop steadily increases.

As in most countries around the world, copyright in South Africa does not have to be registered and arises automatically when a person reduces their idea to material form. The term of copyright is still 50 years after the author’s death (as opposed to the EU and the US’s 70 years) but many people believe that it is only a matter of time before multinational publishing companies persuade or push governments to adopt the longer term.

Other relevant legislation

South Africa’s Bill of Rights grants a right of access to information. The Promotion of Access to Information Act (2000) gives effect to the constitutional right of access to any information held by the State or any other person that is required for the exercise or protection of any rights. This has profound implications for South Africans’ access to the past. The South African History Archive (http://www.wits.ac.za/saha/), for example, is acting on behalf of individuals to gain access to the hidden history of the apartheid years.

The act also has serious implications in the realm of freedom of expression rights and may lead to a clash with intellectual property rights legislation. A current example of this clash is the case brought by South African Breweries (SAB) against Laugh It Off (LIO) T-shirts. LIO is a company that parodies local brands on its T-shirts. It’s parody of SAB’s Black Label brand of beer (‘Black Labor, White Guilt’) has led to a landmark case in which freedom of speech will, for the first time, be used as a defense against trademark and copyright violation in South Africa.

Commentators, such as Creative Commons’ chairman, Larry Lessig, believe that intellectual property rights law needs to distinguish between republishing someone’s work on the one hand, and building upon or transforming that work on the other. The law also needs to accommodate the massive potential brought about by the Internet to see a revolution in publishing, where creators around the world are able to build a publishing engine for their ideas and expressions, less inhibited by increasingly restrictive intellectual property rights rules.

South African national heritage, now protected by the National Heritage Resources Act (1999), may also present a challenge to intellectual property law when knowledge held in private control is identified as having relevance as a public good to be shared by all.

Creative Commons does not reject copyright &ndash - in fact, it relies on copyright legislation to carve out exceptions for private and public use. Rather, Creative Commons is attempting to re-establish the balance between the rights of copyright holders and the public’s rights to information and knowledge in the belief that shared knowledge will drive innovation and commonalties among the world’s people.