Law / LL.M.

Law / LL.M.

Copyright is essentially the right of the rightsholder of an original work to prohibit others from making or distributing unauthorised copies of his or her work. More specifically for this dissertation, when an end user deals with digital content, one of the aims of copyright becomes the balancing of the conflicting interests in ‘exclusivity’ on the one hand, and in ‘access to information’ on the other. Exclusivity is achieved by the rightsholders through technological protection measures to protect their commercial interests. Access to information is achieved where works are available to the general public without payment and technological protection measures and where the digital content is not directly marketed for commercial gain. Exclusivity and access to information are two conflicting cultures surrounding copyright in the digital era. It is submitted that unless we find a socio-economic-legal way for the dynamic coexistence of these two conflicting cultures by means of fair dealing, the culture of exclusivity will eventually dominate fair access to information. The transient nature of digital content means that rightsholders have little or no control over their works once the end user has obtained a legal digital copy of the work. The right ‘to prohibit’ end users from copying and distributing unauthorised copies is, therefore, largely meaningless unless a legal or other solution can be found to discourage end users from the unauthorised reproduction and distribution of unauthorised copies of the work. Currently, technological protection measures are used to manage such digital rights because legal permissions within the doctrine of fair dealing for works in printed (analogue) format are inadequate. It is, however, submitted that a legal solution to discourage end users from copying and distributing unauthorised copies rests on two pillars. Firstly, the solution must be embedded in state-of-the-art digital rights management systems and secondly the business model used by publishers, and academic publishers in particular, should change fundamentally from a business-to-consumer model to a business-to-business model. Empirical evidence shows that the printing of e-content will continue to be relevant far into the future. Therefore, the management of fair dealing to allow for the printing of digital content will become increasingly important at educational institutions that use e-books as prescribed course material. It is submitted that although the origination cost of print editions and e-books correspond, the relatively high retail price of e-books appears to be based on the fact that academic publishers of digital content do not have the legal or digital rights management tools to manage the challenges arising from the fair dealing doctrine. The observation that academic publishers are reluctant to grant collecting societies mandates to manage the distribution of digital content, and/or the right to manage the authorised reproduction (printing) of the digital content, supports this hypothesis. Ultimately, with technologies at our disposal, the fair use of content in digital and print format can be achieved because it should simply be cheaper to comply with copyright laws than to make unauthorised digital or printed copies of content that our society desperately needs to make South Africa a winning nation. / Mercantile Law / LL. M.

Digitisation had a profound impact on the creation, reproduction, and dissemination of works protected by copyright. Works in digital format are vulnerable to infringement, and technological protection measures are accordingly applied as protection. Technological protection measures can, however, easily be circumvented, and additional legal protection against circumvention was needed. Article 11 of the WIPO Copyright Treaty (the WCT) obliges Member States to provide adequate legal protection against the circumvention of technological measures applied to works protected by copyright. Contracting parties must refine the provisions of Article 11 and provide for exceptions on the prohibition. Article 11 does not specify whether it pertains to only certain types of technological measures, nor does it prohibit the trafficking in circumvention devices. The United States implemented the provisions of Article 11 of the WCT through the Digital Millennium Copyright Act of 1998 (the DMCA). Section 1201 of the DMCA prohibits the circumvention of technological measures. It is detailed and relates to two categories of technological measures - access control and copy control. It prohibits not only the act of circumvention, but also the trafficking in circumvention devices. Article 6 of the EC Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society of 2001 implements Article 11 of the WCT. Article 6 seeks to protect Aeffective technological measures@. It prohibits both the act of circumvention and circumvention devices. Although Article 11 of the WCT is silent on the issue of access control, it seems as if the international trend is to provide legal protection to access controls, thus indirectly creating a right to control access. South Africa has not yet implemented Article 11 of the WCT. The South African Copyright Act of 1979 does not protect technological protection measures. The Electronic Communications and Transactions Act of 2002 (the ECT Act) provides protection against the circumvention of technological protection measures applied to digital data. The definition of Adata@ is such that it could include protected works. If applied to protected works, the anti-circumvention provisions of the ECT Act would be detrimental to user privileges. As developing country, it seems to be in South Africa's best interest to the implement the provisions of Article 11 in such a manner that it still allows users access to and legitimate use of works protected by copyright. / Jurisprudence / LL.D.

Digitisation had a profound impact on the creation, reproduction, and dissemination of works protected by copyright. Works in digital format are vulnerable to infringement, and technological protection measures are accordingly applied as protection. Technological protection measures can, however, easily be circumvented, and additional legal protection against circumvention was needed. Article 11 of the WIPO Copyright Treaty (the WCT) obliges Member States to provide adequate legal protection against the circumvention of technological measures applied to works protected by copyright. Contracting parties must refine the provisions of Article 11 and provide for exceptions on the prohibition. Article 11 does not specify whether it pertains to only certain types of technological measures, nor does it prohibit the trafficking in circumvention devices. The United States implemented the provisions of Article 11 of the WCT through the Digital Millennium Copyright Act of 1998 (the DMCA). Section 1201 of the DMCA prohibits the circumvention of technological measures. It is detailed and relates to two categories of technological measures - access control and copy control. It prohibits not only the act of circumvention, but also the trafficking in circumvention devices. Article 6 of the EC Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society of 2001 implements Article 11 of the WCT. Article 6 seeks to protect Aeffective technological measures@. It prohibits both the act of circumvention and circumvention devices. Although Article 11 of the WCT is silent on the issue of access control, it seems as if the international trend is to provide legal protection to access controls, thus indirectly creating a right to control access. South Africa has not yet implemented Article 11 of the WCT. The South African Copyright Act of 1979 does not protect technological protection measures. The Electronic Communications and Transactions Act of 2002 (the ECT Act) provides protection against the circumvention of technological protection measures applied to digital data. The definition of Adata@ is such that it could include protected works. If applied to protected works, the anti-circumvention provisions of the ECT Act would be detrimental to user privileges. As developing country, it seems to be in South Africa's best interest to the implement the provisions of Article 11 in such a manner that it still allows users access to and legitimate use of works protected by copyright. / Jurisprudence / LL.D.