Many people might think that downloading music without paying for it is not a big issue. Copyright owners disagree with this kind of reasoning because to them, music is intellectual property with substantial commercial value. Copyright law is the primary form of protection for intellectual property and is based on the fundamental principle that copyright works cannot be reproduced without the express consent of the copyright owner. During the late 90’s however, new technology made it possible for millions of people to download music from the Internet without the express consent of copyright owners. The mere act of downloading songs illegally violates the exclusive right of the copyright owner to reproduce the work. It has also created problems within copyright law that was not foreseeable in the 17th century when the Statute of Anne was enacted. In law, there is always an exception to the rule and it is no different with copyright law. Although copyright owners have the exclusive right to reproduce their work, the general public has been granted exceptions to make fair dealing of copyright works for private or personal use, purposes of research, private study, criticism, review or for reporting current events in a magazine, newspaper or periodical, broadcasting or by using the work in a cinematograph film by virtue of s12 of the Copyright Act 98 of 1978. However, the list of exceptions supra may be changed and/or extended, provided that it remains in line with the international conventions and agreements that South Africa is a member to. The three-step test is inter alia provided for in Art. 9(2) of the Berne Convention1 (Paris Text of 1971) and permit exceptions to the reproduction right of the copyright owner: 1) in certain special cases; 2) that do not conflict with the normal exploitation of the work and; 3) that does not unreasonably prejudice the legitimate interests of the author/rights holder. S17 provides that certain subsections of s12 shall apply mutatis mutandis with reference to sound recordings. However, s12(1)(a) is not one of the subsections mentioned in s17 which means that fair dealing in sound recordings for purposes of research or private study, or for personal or private use is NOT permitted. Fair dealing however, is not absolute nor is it an easy doctrine to interpret. The legal interpretation and application of fair dealing has been fraught with complexity since the English courts first dealt with fair abridgement of literary works between the 17th and 18th century but this complexity has been compounded even more by new technology, especially in relation to music works. The legal uncertainty of fair dealing with regard to music works is the reason why this comparative research has been undertaken in the jurisdictions of South Africa, the United Kingdom, Australia and the United States. Hopefully it will shed more light on the doctrine and lift the veil of confusion. / Jurisprudence / LLM

Many people might think that downloading music without paying for it is not a big issue. Copyright owners disagree with this kind of reasoning because to them, music is intellectual property with substantial commercial value. Copyright law is the primary form of protection for intellectual property and is based on the fundamental principle that copyright works cannot be reproduced without the express consent of the copyright owner. During the late 90’s however, new technology made it possible for millions of people to download music from the Internet without the express consent of copyright owners. The mere act of downloading songs illegally violates the exclusive right of the copyright owner to reproduce the work. It has also created problems within copyright law that was not foreseeable in the 17th century when the Statute of Anne was enacted. In law, there is always an exception to the rule and it is no different with copyright law. Although copyright owners have the exclusive right to reproduce their work, the general public has been granted exceptions to make fair dealing of copyright works for private or personal use, purposes of research, private study, criticism, review or for reporting current events in a magazine, newspaper or periodical, broadcasting or by using the work in a cinematograph film by virtue of s12 of the Copyright Act 98 of 1978. However, the list of exceptions supra may be changed and/or extended, provided that it remains in line with the international conventions and agreements that South Africa is a member to. The three-step test is inter alia provided for in Art. 9(2) of the Berne Convention1 (Paris Text of 1971) and permit exceptions to the reproduction right of the copyright owner: 1) in certain special cases; 2) that do not conflict with the normal exploitation of the work and; 3) that does not unreasonably prejudice the legitimate interests of the author/rights holder. S17 provides that certain subsections of s12 shall apply mutatis mutandis with reference to sound recordings. However, s12(1)(a) is not one of the subsections mentioned in s17 which means that fair dealing in sound recordings for purposes of research or private study, or for personal or private use is NOT permitted. Fair dealing however, is not absolute nor is it an easy doctrine to interpret. The legal interpretation and application of fair dealing has been fraught with complexity since the English courts first dealt with fair abridgement of literary works between the 17th and 18th century but this complexity has been compounded even more by new technology, especially in relation to music works. The legal uncertainty of fair dealing with regard to music works is the reason why this comparative research has been undertaken in the jurisdictions of South Africa, the United Kingdom, Australia and the United States. Hopefully it will shed more light on the doctrine and lift the veil of confusion. / Jurisprudence / LLM

This work is concerned with an analysis of the copyright protection of musical works. Musical works form part of the categories of works protected under copyright law. It would be easy to dismiss musical works as not warranting a serious study, as would for example, be warranted for “industrial property” rights such as patents and geographical indicators, or more “serious” copyrights such as architectural works and computer software. Such a perspective would however, not be cognisant of the significant contribution that the music industry, as part of the broader cultural and creative industries makes to the global economy. It has, for example, been shown that in 2013, the global cultural and creative industries contributed some US$2,250b, employing some 29,5 million people, with the music industry being one of the top three employers and with its revenues exceeding those of radio.1 A single successful musician can earn in excess of US$100m per annum,2 making the industry ripe for litigious claims. For this reason therefore a consideration of the legal rules that apply to the protection of musical works is crucial. There is currently no clear exposition and systematic analysis of the legal principles applicable to the field of music copyright and no work devoted to the in-depth delineation of the rights and sub-rights relating to musical copyright protection. This study seeks to address this research and knowledge gap by providing a historical and contextual analysis of the protection of musical works. The aim is to provide a complete picture of the milieu of music copyright protection to enable the reader to feel empowered in dealing with the subject-matter. This the writer does by mapping the historical development of music copyright protection in particular from eighteenth century England when the first copyright legislation was enacted, until the enactment of the British Copyright Act of 1911, which signalled the emergence of the “common law” copyright system. The writer then shows how this enactment shaped the development of modern music copyright law, and concludes by presenting a contextual consideration of the current South African law of music copyright and highlighting the challenges it is faced with. / Mercantile Law / LL. D.