Justifications for Copyright: The Moral Justifications

• Published date: 16 August 2019
• Author: Sadulla Karjiker
• Citation: (2013) IPLJ 42
• Date: 16 August 2019
• Pages: 42-58

42

JUSTIFICATIONS FOR COPYRIGHT:

THE MORAL JUSTIFICATIONS*

saDulla karJ Iker

**

Senior Lecture r, Faculty of Law, Stelle nbosch University

1. IntrODuctIOn

It appears that intellect ual property is valued a nd despised in equal measure

in our cu rrent society. For many of the best-know n rms their most valu able

asset is the intellectual propert y they own, and this is a trend which is u nlikely

to change, given the natur e of modern commerce. In the case of copyr ight,

works primari ly protected by copyright, such as computer prog rams, music

and literary work s have become an indispensable part of our lives, whet her

in our working environ ments or leisure pursuits. Int ellectual property r ights

are legally, e conomically a nd socially signicant; they are said to be the

‘most spectacular’ form of lim ited privilege granted to pr ivate individuals

by governments.1 While this ar ticle (and the second part thereof) w ill focus

on t he justication for copyright protection, references may be made more

generally to intellect ual property for two reasons: some of the comme nts or

issues relating to copyr ight protection may be relevant to intellectual proper ty

protection generally, and vice versa; and , it is intended that the contribution

relating to the justication of the copyright prot ection should form pa rt of a

larger discourse on the justi cation of othe r forms of intellectual property.

This is, of course, done with c omplete appreciation that there are substa ntive

legal differences betwee n the various forms of intellectual pr operty.

Accordingly, unless other wise stated, the points made specically in relation

to copyright should not to be const rued as also being applicable to other typ es

of intellectual property.

Although copyright as a for m of intellectual propert y,2 like other forms

of property, exists by vi rtue of its recognition by the state, sp ecically

through legislation, ‘[l]aw needs some for m of social justication if it is

* This art icle is based on part of my docto ral dissertatio n at Stellenbosch University. I would li ke

to thank my su pervisor, Professor O wen Dean, for his valuable g uidance duri ng my research.

** BSc LLB (UCT) LLM (Lond on) Dipl Adv Company Law (Unisa) LLD (Stell).

1 RM Hurt & RM Schuchm an ‘The economic ratio nale of copyright’ (1966) 56 The Ame rican

Economic Review 421.

2 ‘Intellect ual property’ is t he generic term us ed to refer to the differe nt legal regimes conce rning

copyright , patents, trade ma rks, designs, and c onfidential in formation, ‘which bega n their

existence in dependently of each othe r and at different ti mes in different plac es’. P Drahos A

Philosophy of Intelle ctual Property (1996) 14. No definitive ju dicial definition of ‘intelle ctual

propert y’ has been provided by our cou rts. References to ‘in tellectual proper ty’ are, invariably,

illustrat ive. The Intellec tual Prope rty Right s from Publicly Fin anced Re-sea rch and Development

Act 51 of 2008 defines ‘int ellectual pro perty’ even more br oadly as ‘any creation of t he mind that

is capable of being prot ected by law from use by a ny other person’.

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(2013) IPLJ 42

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to be successfully legiti mised’.3 We no longer merely accept laws or social

institutions (or consider such laws or inst itutions to be justi ed) simply

because they emanate f rom an established authority such a s the legislature.4

We condemn ‘blind mandates of power’ and seek reasons for the ex istence

of laws; we require that laws are based on sound ph ilosophical or economic

justications.5 Power and authority a re subject to greater scruti ny than at any

point in human histor y. Intellectual-prop erty scholarship in South Africa h as,

arguably, focused on the immediat e issues concerning black-letter law, with

very little analysis of the concept ual foundations of intellectual propert y as a

legal institution.6

Copyright, because of its social and economic signicance, should

be grounded on a sound the oretical basis, particularly if prot ection is

periodically expanded t o new types of work, as was the case, for example,

with cinematograph lm s and c omputer programs. The South African

Copyright Act7 h as not been substantively amended, despite un imaginable

technological advancements, si nce 1997,8 and the appropriateness of the scope

of protection needs to be reasse sed as a matter of priority. Every aspect of

copyright protection is now, argubly, more critically assess ed than may have

previously been the case. For example, the United Ki ngdom’s Intellectual

Property Ofce are considering the World Intellectual Propert y Organisation’s

(WIPO) proposed copyr ight limitations and exceptions for visual ly impaired

people and for people with print disabil ities, which can serve to faciliate their

access to informat ion.9 Given the challenges we face in South Af rica, such as

ensuring ad equate education opportu nities, we should be particular vig ilant

about the impact of copyright prot ection on access to information.

What we seek to est ablish when considering the justications for

intellectual prope rty protection, such as copy right, is why it exists and

what purpose it ser ves.10 There are two principal reasons for seek ing to

establish a sound justication for copyright prote ction. The rst reason for

seeking a justication for copyright protection is as par t of a more general

discourse on the conti nued relevance of intellectual propert y law. There

is a perception among laypeo ple, particularly the youth, that intellect ual

property rights unjustiably fet ter their freedom to use ‘their’ property as

3 C May A Global Politic al Economy of Intellectu al Property Right: Th e New Enclosures? (2000)

17.

4 HM Spector ‘An outlin e of a theory justify ing intellectual a nd industrial pro perty rights’ (1989)

11 E.I.P.R. 270; and J Hughes ‘The philosoph y of intellectual prop erty’ (1988) 77 Geo. L. J. 287

288.

5 Spector (n 4) 270.

6 The same is tru e of English copyright law, which forme d the foundation of South Afr ican and

continues to b e influenced by it .

7 Act 98 of 1978.

8 Intellect ual Property L aws Amendment Act 38 of 1997. Although the Act w as amended in 2002

(Copyright Ame ndment Act 9 of 2002), these amen dments were largely of a tech nical nature

relating to royal ties.

9 http://www.ipo.gov.uk/pro-policy/policy-infor mation/policy-notices /policy-notices-

copyrightwork s.htm.

10 R Deazley Reth inking Copyright: His tory, Theory, Lang uage (200 6) 1 37.

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