Government Data and Copyright Protection in South Africa

• Author: David Rüther
• Date: 24 May 2019
• Pages: 55-74
• Citation: (2015) IPLJ 55
• Published date: 24 May 2019

GOVERNMENT DATA AND

COPYRIGHT PROTECTION IN

SOUTH AFRICA



PhD candidate, College of La w, University of Bonn

  

Informational dat a has become an impor tant part of our d aily life. All of us

rely on and use informational d ata, which can range from reviewing cricket

World Cup game results, checking the weather forecast or stock market

            

Gumtree. But not only individuals take advantage of and use i nformational

data. Many businesses have realised the value of informational d ata and now

put emphasis on the accumulation, use and dissemination of such data. In

fact, for various companies – i ncluding global corporations such as Google

and Facebook – data has become a key asset and tradable good. A point in

case is Facebook: Its 1.5 billion active users feed Facebook with valuable

personal inform ation, for example where they live, what they are doing, and

with whom they are friends. This informational data is ‘sold’ by Facebook to

third parties, which then target these users with customised advertisements

based on the informat ion they have provided. This said, national governments

arguably remain the biggest creators as well as collectors of infor mational

data. Throug hout one’s lifetime, government agencies collect informational



         

         

only collect information pertaining to individuals; government agencies

also create and store in formational data about their own activities. Such

information includes cartographic mater ial, crime stat istics, agency budgets,

electricity usage or load-she dding schedules, to name a few.

Informational dat a and facts collected and compiled by government

agencies can often be useful and valuable to companies and individuals, for

example entrepreneurs, analysts, researcher s, journalists a nd IT experts.

However, it appears that burdensome administrative procedures, as well as

associated costs, for example for licensing, oft en prevent these parties f rom

obtaining such in formation. Establishing a t echnical and legal environ ment

that facilitates access to and use of information held by government agencies

is the goal of open government data i nitiatives.

 LLM (Columbia). Many than ks for comments an d suggestions on th is article to the Uni versity of

Cape Town IP Unit.

55

(2015) IPLJ 55

© Juta and Company (Pty) Ltd

Part 2 of this article explains the concept of open government d ata and its



and takes a brief look at the implement ation of open government dat a policies

across the globe. Part 3 focuses on the legal aspects of government dat a in

South Africa. A cent ral, but often overlooked, question this a rticle tries to

address is if and to what ex tent government dat a is copyright protected under

the South African C opyright Act 98 of 1978 (hereafter Copyright Act). This

requires a discu ssion of key terminology, such as ‘eligible works’, ‘originality’

and the meaning of ‘commonplace’ in the context of informational data.

The copyright exception contained in s 12(8)(a) of the Copyright Act is also

discussed.

  

Open government dat a has two key character istics: ‘openness’ and ‘government

data’. This section explains these two charact eristics and provides an overview

 

2.1 Government data

In the context of open government d ata, ‘data’ refers to information or facts that

are systematically or visu ally collated. Such information or facts may consist

of numbers, letters, words or g raphics. The format the information is stored

in is irrelevant – it can be digital or analogue. ‘Dataset’ – or synonymously

1

What is often referre d to as databank (or database) differs from ‘dataset’

    

open government data. Nevertheless, the description is helpful to distinguish

a dataset from such a d atabank. A collection of datasets that can be se arched,

              

A databank is a combination of datasets and a computer program.2 This

combination is best imagi ned as layers building on one another. The datasets

supply the information that a computer program uses to alter, modify, or

reorganise the dat a as the user desires.

Using the Open Data Portal of the City of Cape Town3 to exemplify the

distinctions of data outl ined above will help to understand the marginal, yet

existing differences. The City of Cape Town measures the concentrat ion

of nitrogen oxide in the air for the metropolitan area and publishes that

1 A similar def inition for ‘database’ is given in a rt 1(2) of the European Un ion Directive on the

Legal Protec tion of Databases 9 6/9/EC: ‘For the purpo ses of this Dire ctive, “databas e” shall

mean a collectio n of independent work s, data or othe r materials a rranged i n a systematic or

methodical way a nd individually acc essible by electronic or ot her means’.

2 JA Streicher d istinguished in H aupt t/a Soft Copy v Brewe rs Marketing Intelligenc e (Pty) Ltd &

others 2006 (4) SA 458 (SCA) between a ‘database’ (datase t in the termi nology of this art icle) and

computer prog ram as follows: ‘[A] database struc ture does not consist of a s et of instructions . It

consists of a table w ith a certain num ber of columns which may va ry in width.’

3 City of Cape Town ‘Open Data Por tal’, available at https://web1.capetown .gov.za/web1/

opendatap ortal/Defau lt (viewed on 3 August 2015).

56 South African Intellectual Property Law Journal (2015) 3

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