The Regulation of Copyright in Digital Trade: A Case for the Southern African Development Community

• Citation: (2024) IPLJ 57
• DOI: https://doi.org/10.47348/SAIPL/v12/a3
• Published date: 27 January 2025
• Pages: 57-80
• Author: Chimeri, V.
• Date: 27 January 2025

57

https://doi.o rg/10.4734 8/SAIP L/v12/a3

THE REGULATION OF COPYRIGHT

IN DIGITAL TRADE: A CASE

FOR THE SOUTHERN AFRICAN

DEVELOPMENT COMMUNITY



Post doctoral fellow, Depart ment of Mercantile Law, University of the F ree State.

ABST RACT

The protectio n of intellectual p roperty r ights, part icularly copyr ight in digital t rade, has

raised concer ns about the appl icability of existi ng frameworks t o the digital par adigm,

especially con sidering that t hese framework s were not negotiated i n anticipation of

intangible as sets and content as centra l components of commercial t ransactions. Althoug h

digital tra de presents an op portun ity, particula rly for small to mediu m enterpri ses in the

Southern Af rican Development C ommunity to a ccess new tra ding platforms a nd new

business oppor tunitie s, it has also led to a su rge of unlawful ly distribut ed copyright-

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

     

as the infr inger may be base d in a different ju risdiction, of ten hiding u nder the veil of

anonymity. It is in th is context that this ar ticle examines the regul ation of copyright in the

Southern Af rican Development Commu nity and questions wh ether the existing f ramework

effectively har monises copyr ight law in a way that acc ommodates th e technological

developments in int ernational t rade. The art icle argues that t he regulation of copy right in the

Southern Af rican Development Com munity is fr agmented and, i n many instance s, outdated

in dealing wit h the emerging d igital parad igm. To this end, the ar ticle recomme nds the

development of a regional f ramework on copyr ight. It submits t hat a regional fra mework

that suppor ts the creation , protection, ad ministr ation and enforce ment of copyright in

digital tra de can promote innovation and en hance competition thereby en abling Southern

African De velopment Community cou ntries to effectively pa rticipate in the dig ital trade.

KEYWORDS: Copyr ight, Digital Trad e, Southern Af rican Development Co mmunity

(SADC), Small to Mediu m Enterprises (SMEs)

  

        1

The continuous advanceme nt of these technologies particul arly in the area

of trade has resulted i n the development of digital markets and platforms

which are lowering production, dis tribution and marketi ng costs that are fast

determin ing the competitiveness and relevance of businesses in global tra de.2

As trade is fast becom ing digitalised, it is ope ning markets for businesses

   

1 M Smeets (ed) Adapting t o the Digital Trade Era: Chal lenges and Oppor tunities (2021) 17;

A Shlapak et al ‘Digi tal transfor mation of inter national tr ade in the context of g lobal competition :

Technological innovat ions and investment pr iorities (2023) 6 Financial an d Credit: Problems of

Theory an d Practice 334 334.

2 Ibid.

(2024) IPLJ 57

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https://doi.o rg/10.4734 8/SAIP L/v12/a3

particularly Smal l to Medium Enterprise s (SMEs) from previously isolated and

remote areas thereby i ncreasing the volume of trade.3 Due to its technological

nature, digital t rade is fund amentally reshaping the copy right system, which

has traditional ly been based on controlling the physical ma nifestation of

an idea.4 A copyr ight holder is not rewarded for the idea but rather for the

ability to deliver it into reality.5 The shif t from analogue to digit al modes

of sharing content has f undamentally tr ansformed trad itional conceptions of

copyright, raising c ritical considerations about how to effect ively protect it

while fostering creat ivity and innovation in an increasi ngly digitalised world.6

Copyright violations have become easier wit h the emergence of digital trade.7

Files, books, music and other protecte d works can be easily reproduced and

distributed i n an instance thereby causing ser ious losses to copyright holders.8

Copyright law plays a crucial role in digit al trade by protecting dig ital assets,

granting in novators and creators exclusive rights to control their creations a nd

   9 Despite the increasing i mportance of copyr ight

law in digital trade, Sout hern Africa n Development Community (SADC)

countries are lag ging behind in tap ping into the opport unities of digital

trade.10 Most SADC count ries do not have copyright laws that accom modate

the technological developments in both domest ic and international t rade.11

Copyright law in most SADC cou ntries is still pr imarily based on t angible

              12 It is in this context

that this paper exam ines SADC’s efforts in the regulation of copyr ight in digital

trade. The ar ticle argues that, despite the ongoing transition f rom analogue to

digital trade, ma ny SADC countries lack a comprehe nsive understanding of

the importa nce of copyright law in the evolving digita l landscape.13



development, and innovation have become critical e nablers of social and

economic transform ation, it is pertinent t hat SADC countries cr eate a

regulatory envi ronment that promotes and prot ects innovation in a way

that enhances t he region’s competitiveness in promoting economic growth

3 S meets (n1) 17.

4 R Adams ‘T he evolution of Intellectual prop erty right s in the digital age’ (2023) 3 Journal of

Modern Law an d Policy 52 57.

5 A Taubman ‘TRIPS en counters the int ernet: An analog ue treaty in a d igital age, or the fi rst trade

2.0 agreement?’ i n M Burri & T Cott ier (eds) Trade Governance in the Digi tal Age (2015).

6 Ibid.

7 G Agg arwal ‘Intellectu al property right s and the internet world’ 1 (2018) International Journal

of Law Manageme nt & Humanities 1 1.

8 Ibid.

9 J de Werra & J Dodd ‘The ne ed for a global framework for k nowledge transa ctions: Cross border

licensing and e nforcement’ in A Taubman & J Watal Trade in Knowledge: Intellectu al Property,

Trade and Developm ent in a Transformed Global Ec onomy (2022) 685 at 687.

10 M Nkomo ‘Regional in tegration in t he area of intellec tual proper ty: The case for S outhern

African D evelopment Commun ity involvement’ (2023) 18 Law Democracy & Development

317 32 4.

11 SADC ‘SADC needs to i mprove and enforce i ntellectua l property r ights fram eworks and

regulation’ (2022), available at https://www.sadc.int/latest-news/sadc-needs-improve-and-

enforce-intellectual-property-rights-frameworks-and-regulations (accessed 28 October 2024).

12 Werr a and Dodd (n9) 687; Nkomo (n10) 324.

13 Ad ams (n4) 57.

58 South African Intellectual Property Law Journal (2024) 12

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