Keeping up with the developments in technology: A look into the music industry and the copyright laws in Southern Africa

• Date: 12 February 2020
• Published date: 12 February 2020
• Citation: (2019) IPLJ 31
• Author: Forere, M.A.
• Pages: 31-52

31

KEEPING UP WITH THE

DEVELOPMENTS IN TECHNOLOGY:

A LOOK INTO THE MUSIC

INDUSTRY AND THE COPYRIGHT

LAWS IN SOUTHERN AFRICA

 

Associate Professor, University of the Witwatersrand

ABST RACT

Focusing on South Af rica, Botswana and Lesotho, t his article examines how the mu sic

industr y and the copyright laws in Southe rn Africa address t he impact of technologica l

developments on the us er and content owners. I n the case of the music indu stry, the article

       

         

there is a shif t away from broadcast to we bcast and on-dema nd platforms, yet ther e is

little souther n African content on str eaming platforms, which the n forces the consu mer

                    

consumers t o continue enjoying music in th eir vehicles and on laptops, they h ave to shift

formats; conse quently, the article consid ers whether private c opy exception or format

shifting i s allowed, and whether th e rights owners ar e entitled to compens ation against

                 

South Afric a does not, and Lesotho does n ot create private copy except ion at all. Further,

the article look s at the interface of pr ivate copy exception and technologica l protection

      

to make a private c opy, South Africa does, t hereby creating lawles sness. Lesotho does

not have provisions on TPMs. Re garding streaming or on -demand platforms, the ar ticle

     

owners and dete rmines whether the laws i n the three sampled count ries protect the right

of making availa ble.

KEYWORDS: copyr ight; music industr y; streaming; techn ological protection measur es;

anti-circ umvention provisions; pr ivate copy exception; form at shifting; Sout h Africa,

Botswana; Lesotho

  

Nothing has kept the consu mer and legislature, including i nternational

organisations, on thei r toes as technology. As the consumer spends more money

on better and improved tech nological services, legislat ures continue to pass laws

to regulate new chan nels of consuming products and ser vices. At the heart of these

technological services a nd channels are copy right laws, contract laws a nd consumer

laws. Copyright laws are the focus of this p aper. As technology advances, it brings

about new rights and challenges. Conte nt owners will call on the legislatu re to

  

(2019) IPLJ 31

© Juta and Company (Pty) Ltd

pass new laws when old or current laws are not dy namic enough to respond to

these. In the enter tainment indust ry (music and videos), the advancements in

technology have drawn the at tention of consumers, legislatures, and i nternational

organisations such as the World Intellectu al Property Orga nization (WIPO).1

Technology has introduced new ways of storing and di stributing content and has

simultaneously presented new cha llenges (copyright infringement) for content

owners. In music, we have moved from long-playing (LP) records to casset te

decks and from casset tes to compact discs (CDs), and in video broadcasti ng has

moved to webcasting and/or online st reaming. To this end, as consumers abandon

old and unfriendly te chnologies in favour of new ones, the legislature needs to

     2 This calls

for the creation of new rights for the owners of new tech nologies. Not so long

ago, the tape recorder was fash ionable, with simple functionalities like stop, play,

rewind, forward a nd record. The system was time -consuming and cu mbersome.

When a listener wante d to listen to a particu lar track they had to use the r ewind

or forward funct ion and guess where to stop, or the tape would get stu ck in the

radio cassette player. From the cassette, we saw the development of optical dr ives,

which allowed for the use of CDs for music and digital versatile discs ( DVDs)

      



replaced Vertical Helical Scan (VHS) ta pes. Today many manufacturers have

stopped manufact uring optical drives for laptops and high- end vehicles in favour

of modern storage devices such as se cure digital (SD) cards for storage and the

distribution of content. The re ader will quickly realise th at there is no drive for

CDs anymore in moder n laptops, and car manufacturers a re continually phasing

out CD players in their vehicles.3

              

broadcasting to webcast ing, together with the use of on-dema nd platforms.

Based in South Afr ica, Africa’s largest pay-TV provider, Multichoice, has

felt the shift from broadca sting to webcasting and on-de mand streaming the

most. Multichoice which owns Digital Satellite Television (DStc), continues to

1 The World Intellect ual Property Or ganisation adopted t wo treaties to respond t o the challenges

posed by development s in technology and inter net, see the WIPO Copyr ight Treaty, April. 12,

1997, S Treaty Doc No 105–17 (1997), 2186 U.N.T.S. 121; 36 I. L.M. 65 (1997), Preamble, paras

2 and 3; WIPO Perfor mances and Phonogr ams Treaty, S Treaty Doc No 105–17 (1997); 2186

U.N.T.S. 203; 36 I.L.M. 76 (1997), Preamble, pa ras 2 and 3.

2 Of course, no t all sectors are affe cted by technology in t he same way. Thus, while the cons umer

has been quick t o transition fro m physical copies of music (CD and DVD form ats) in favour

of downloads an d later streami ng, physical copies of books have stabili sed and have not been

eroded by e-bo oks. The reasons a dvanced for this dif ference are two-fold: f irst, the issu e of

cost, that is, wh ile there is little dif ference in price betwee n ebooks and hard copies, st reaming

platforms offer a w ide variety for a fract ion of the cost of physical copies. Second ly, books are

seen as collect ibles while CDs’ and DVDs’ collectabilit y are not strictly regarded a s such. Cf

PwC ‘Entert ainment and media out look: 2018–2022’ 19, available at http s://www.pwc.co.za/en/

assets/pd f/entertainm ent-and-media-out look-2018-2022.pdf (accesse d on 15 August 2019).

3 H McInty re ‘It’s time to say goodbye to the CD playe r in new American c ars’, available at https://

www.forbes.com/sites/hughmcintyre/2017/03/02/the-time-has-come-to-say-goodbye-to-the-cd-

player-in-new-amer ican-cars/# 42d634042e88 (accessed on 15 August 2019).

32 South African Intellectual Property Law Journal (2019) 7

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