Navigating the complexities of the adaptation right in copyright law: Addressing ambiguities, gaps and the need for reforms in South Africa

• Citation: (2023) IPLJ 42
• DOI: https://doi.org/10.47348/SAIPLJ/v11/a3
• Published date: 18 January 2024
• Pages: 42-71
• Author: Kok, L.
• Date: 18 January 2024

42

https://doi.o rg/10.4734 8/SAIP LJ/v11/a3

NAVIGATING THE COMPLEXITIES

OF THE ADAPTATION RIGHT IN

COPYR IGHT LAW: ADDRESSING

AMBIGUITIES, GAPS AND THE

NEED FOR REFORMS IN SOUTH

AFRICA

*

Lecturer, Universit y of Pretoria

ABST RACT

As a pervasive feat ure of modern s ociety, the adapta tion right in the co ntext of

infri ngement and fair dealing has f requently been a subject of heated deb ate for several

years. However, the cur rent Copyright Act 98 of 1978 does not adeq uately address either

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

user to deter mine when it is appropriate t o pay for permission and when to us e the work

without perm ission, resulting in numer ous legal debates over what is considered law ful

or permissi ble use. Moreover, the complexities of copyr ight law and its application i n the

context of the var ious forms of adaptation set out in t he Copyright Act (ie arrange ment,

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

attempti ng to create a work of adapt ation or resolve a disput e over one in a state of

considerable unc ertainty. Consequently, ther e are numerous gaps in South A frica’s legal

system concer ning adapt ations and thei r role in legal proceed ings. This is exa cerbated

           

and restric tions associate d with the adapt ation right are ex tremely limit ed. Blind SA v

Minister of Trade, Indu stry, and Compe tition and the a lmost decade-lon g debate about

the Copyrig ht Amendment Bill indicate a n eed for reform in South Afr ica’s legal syst em

concerni ng adaptations and th eir role in legal proceedi ngs.

KEYWORDS: copyr ight; subsequent work; senior work; ju nior work; adapta tion right;

copyright i nfringement; fai r dealing

  

Copyright, as a bene t to all, is regarded as one of the most i mportant and

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

primar y function is to protect the fr uits of someone’s labour, skill or taste from

exploitation by third part ies, while providing incentives which encou rage the

public to continue the development of creative works.1 Although providing

* BA Law (UP) LLB (UP) LLM i n Intellectual Prope rty Law (UP) LLD candid ate (UP). Email:

Lucinda.kok@ up.ac.za. This paper dr aws on my dissertation sub mitted in partial f ulfilment of

my LLM degree in I ntellectual P roperty Law at t he University of Pretor ia, which was supe rvised

by Dr Chijioke Okorie. Al l errors are min e.

1 AL Br own Intellectual P roperty, Huma n Rights and Compet ition Access to Essen tial Innovatio n

and Technology (2012) at 1.

(2023) IPLJ 42

© Juta and Company (Pty) Ltd

https://doi.o rg/10.4734 8/SAIP LJ/v11/a3

a measure of protection and sec urity to the copyr ight owner, the underlying

focus of copyright is to ensu re the continued advancement of science,

innovation and valuable art s for knowledge.2 This may necessitate providi ng

rights that are st rong enough to promote the creation of intellec tual goods

but not to an extent where this rest ricts widespread u se. This underlying

focus draws attention to t he fact that even though copyr ight grants authors

exclusive rights, it must also be balanced with public inte rest considerations.3

Despite the potential implicat ions of power that can accompany copyright ,

it is nevertheless essential to bala nce protection for creators and to foste r

continued innovation. Copy right should, therefore, be seen as a tool to advance

knowledge and innovation rather t han giving an author complete control over

how others use their work.4

South Africa’s current legal framework for copyr ight protection stems

from a set of rules adopted i n the nineteenth ce ntury,5 when no one could

have foreseen the extent to which technologies would advance or t he role

that information te chnology would eventually play in national and global

economies.6 This realit y is especially prevalent in in fringement cases, a s

technological advancements al low creators easy access to protec ted content

and give them the ability to re plicate it with minimal effor t.7 Thus, an

author’s existing rights are par ticularly susceptible to una uthorised use in

the digital age. Furt hermore, when an author or a copyr ight owner refuses

to grant per mission for use or, alternatively, grants permi ssion on arbitrary

and unfounded grou nds, a creator and prospec tive copyright user has lit tle

recours e.8 Consequently, legislators have had to grapple with ensu ring a

delicate balance between promoti ng and rewarding creativity whi le protecting

the public’s interest, which is no easy task.9

2 JE Cohen, LP Loren & R L Okediji et al Copyright in the Global Information Economy (2010)

at 5.

3 Google LLC Pet itioner v Oracle Amer ica Inc (2021) US at 593: ‘[B]ecaus e such exclusivity may

trigger negat ive consequence … t he courts have l imited the sco pe of copyright pro tection to

ensure tha t a copyright holder’s monopoly does n ot harm the public inte rest.’

4 C Talkmore ‘The role of intelle ctual prope rty rights’ pr otection in adva ncing development i n

South Afric a’ (2022) 26 Law, Democracy and Development at 16 8–189.

5 Copyr ight Act 98 of 1978.

6 Cohen et al (n2) at 35.

7 B Mencher ‘Digital tr ansmissions: To boldly go where no first s ale doctrin e has gone before’

(2002) UCLA Entertainment Law Review 10 at 47–57.

8 This was part of t he events leading t o the dispute in G oogle Oracle where G oogle attempte d

negotiation for a lice nce agreemen t with Oracle, but no ag reement was re ached. Google thu s

continued wit h its use of Oracle’s Java APIs to accom modate, and for the benef it of, their users.

9 A recent exam ple of this is Blind SA v Ministr y of Trade, Industry and Co mpetition and Other s

[2021] ZAGPPHC 871; 2021 BIP 14 (GP) para 66: ‘The rig hts to incorporeal prop erty that the

Copyright Act p rotects may not become and i nstruments to d isadvantage a class of perso n who

have the same need of a ccess … [as] persons wit hout impedime nts’. Further, the Mar rakesh

Treaty serves a s an importan t mechanism which re presents this deli cate balance in att empting to

protect intel lectual proper ty rights and expa nd access to infor mation and resource s.

NAVIGATING THE COMPLEXITIES OF THE ADAPTATION

RIGHT IN COPYRIGHT LAW 43

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