Quo vadis copyright?

Throughout the ages, copyright has shown an ability and a willingness to adapt to meet changed circumstances, and to cater for new forms of expression of the fruits of intellectual activity. In this way, rules formulated to deal with the printing and distribution of books were successfully adapted to deal with far removed exigencies, such as computer programs and the dissemination of works over the Internet.

Broadened over the ages

In the result, the horizons of copyright law have been broadened over the ages and it has been able to remain relevant. Technological changes and developments have posed enormous challenges to the ability of copyright to evolve and expand, and the phenomenon of the Internet has tested the adaptability of copyright to the ultimate and, perhaps, to breaking point. The ease and speed with which works can be disseminated worldwide in an instant over the Internet is bringing copyright to a crisis point, and new ways of enforcing copyright and giving effect to the rights that it confers upon creative people will have to be found. The real challenge to copyright in the future lies in its enforcement and not necessarily with its ability to adapt itself to deal with ever-evolving forms of works.

The secret to copyright's adaptability has been its foundation on certain basic principles, which have proved to be evergreen and enduring. In order to qualify for copyright, a work must be original, that is to say that it must be the result of the independent effort and expertise of the maker or author, it must exist in a material form, which means that there is no copyright in ideas, but simply in the manner and form of their expression, the author of the work must be identifiable and have certain characteristics or attributes, and the work enjoys protection for a limited and predetermined period, whereafter it falls into the public domain and is free for use by all.

The application of these basic principles to new forms of essentially homogenous works that have arisen over the years has enabled copyright to evolve with the times. Computer programs, could, for instance, be accommodated because they and their circumstances of creation could be fitted within these basic principles. In general, it has not been sought to fit within the ambit of copyright works that cannot comply with these basic conditions or requirements, i.e. heterogeneous works.

The South African government a prime transgressor

In certain circles a trend has developed in recent times to try and protect under the aegis of copyright works which do not, and cannot, comply with these basic tenets. The South African government is a prime transgressor in this regard. By means of the Intellectual Property Laws Amendment Act, 2011 (which has been passed by parliament, but not yet assented to by the State President) it is sought to protect works of so called "traditional knowledge" as species of works qualifying for copyright. These works of "traditional knowledge" or "cultural expressions" entail folk law, traditional stories, traditional art and the like, which have no known author and which have been in existence for ages, and which currently fall outside the parameters of works eligible for copyright. They are not adapted to enjoy copyright protection because they cannot meet the basic requirements for such protection. Artificially imposing them on copyright law cannot be achieved without riding roughshod over the fundamental elements of copyright.

It is one thing to adapt copyright law on an evolutionary basis so as to cover new types of works that meet the basic requirements of the law. It is an altogether different matter to attempt to adapt the law to deal with completely heterogeneous types of works, which are not suited to incorporation in the fold. Adapting copyright law in this manner cannot but undermine it and, ultimately, lead to its destruction. Whatever the merits for granting some form of protection to these traditional works might be, this objective should not be achieved by the destruction of a body of law that has successfully evolved with the times for several centuries. A new form of protection should be devised for traditional works if it is felt that they deserve protection.

It copyright is to survive into the 21st century and beyond, it must adapt to cater for new forms of homogeneous works. However, if it is to be adapted to try and protect forms of heterogeneous works, it will not survive in a coherent form.