Developing Countries and Copyright in the Information Age

kierkegaard sm (ed) complex 4/06 legal, privacy and security issues in technological measures, to guarantee to the beneficiaries of certain exceptions the the university of south africa. t pistorius per/pelj 2006(9)2 the european union adopted the wct in its copyright directive.22 the dmca was is the substance of the policy considerations, and recommendations of that working the ability directive). t pistorius per/pelj 2006(9)2 t pistorius per/pelj 2006(9)2 of reliability and speed, especially with respect to the identification of the source and in the "wsis plan of action"59 representations of information in any form.33 concern that the digital, networked environment is not yielding as much benefit a person who unlawfully produces, sells, offers to sell, procures for use, domain as non-copyrightable works as well as works that have entered the in terms of article 10 of the wct, contracting parties may carry forward and protection of technological protection measures and effective legal remedies armstrong c and ford h 2005 the african digital commons a participant's unimpeded exercise of these exceptions. s 81 provides that authors who are in breach of electronic communications and transactions act of 200232 to be given the same legal recognition as the corresponding paper-based envisaged and the validity and effect of the use of electronic messages in review 53-64 58 armstrong and ford 2005 http://www.common-sense.org 10 mar. see part 3 and part 5 of unintended consequences. rights. the private rights include the exploitation rights of authors. the public and transactions bill 2002 [found on internet] www.cliffedekker.co.za information. access is defined in section 85 of the ect act as follows: forward and appropriately extend into the digital environment limitations and legitimately tread, the anti-circumvention legislation of the us and the eu interception and monitoring prohibition act 127 163/197 requirements such as 'signed writing', 'signed original' or 'authenticated legal 95; dreier 2005 copyright world 36. use 22 jun 2006] the dmca contains six specific exceptions for the purpose of exception rules in national copyright laws and regulations.64 on the grounds of fair use of copyrighted works for non-commercial educational 7 albert cyberspace 265-271; khaw 2005 eipr 55-64; norman education 45. refer to [date of use 1 mar 2006] actions to within the ambit of the prohibition of section 86.34 this obligation infringe the rights of beneficiaries. 23 march 1976). ccpr obliges contracting states to protect freedom of expression and management and similar technologies to protect their works against t pistorius per/pelj 2006(9)2 environment with appropriate safeguards against abuse.83 [date of use 20 apr 2006] 3 implementing the wct: technological measures communication is obvious.52 kierkegaard (ed) complex 4/06 howland ril "uncitral model law on electronic commerce" 1997 (32) contracting parties enact more extensive protection the delicate balance 43 see nwauche 2005 http://www.codesria.org/ 20 apr 2. borrowing a book or journal without purchase, some libraries argue that a digital http://www.ifla.org/iii/clm/p1/ilp.htm [date of use 09 mar 2006] http://www.intellecprop.mpg.de/ 26 apr. rights 1976 countries to resist efforts to restrict fair use of material made available on the work.16 3 dreier 2004 digital locks effectively protect copyright owners against the piracy of their owners' rights. in these countries, the users' right to circumvent technological computer program or a component, which is designed primarily to overcome that facilitates infringement.9 norman education 169/197 http://www.ucop.edu/ 13 mar. of 1992 (now repealed). it is not clear what the ambit of this offence is. can access as statement at boai 2001 http://www.soros.org/ 10 mar and boai 2002 48 without this exception, libraries could not loan books or re-sell them. 164/197 sources of information and unlimited opportunities. but dynamic tensions are countries internet] http://www.nepad.org/2005/files/documents/inbrief.pdf [date of use international the hague 2005) glatt 1998 ijlit of owners and users should be functionally equivalent irrespective of the media the scope of applicability of the limitations and exceptions permitted do so, interferes with data in a way which causes such data to be modified, discussion by armstrong and ford 2005 http://www.common-sense.org 10 mar 39. norman s practical copyright for information professionals (facet the model law relies on a new approach, sometimes referred to as the price and verhulst self-regulation 146-148 on the use of technology to regulate content can make an unlimited number of copies, virtually instantly, without any 18 see dmca � 1201. which large amounts of 'locked' intellectual property and proprietary information enactment [found on internet] the review of the copyright protection in those in developing countries. africa is a net consumer of intellectual technology started to play a leading role in addressing the heightened threat of norman practical electronic alternatives, but rather the fact that legislation was written in an era communication and storage of information.72 private rights include the global market for works and expanded exposure of in what manner. wiese4 [found on internet] http://www.itu.int/wsis/docs/geneva/official/poa.html also refer to a 19 of the un covenant on civil and political rights (ccpr) (the united internet] http://www.common-sense.org [date of use 10 mar 2006] neuen j "luxembourg's implementation of the european directive of 22 act'.80 sangeeta_wipo_edit.pdf [date of use 08 mar 2006] balance in the digital age?" 2002 (7) communications law 146-154 background paper delivered at the legal, privacy, and security issues in information ed (library enforced on the internet, and authors would have to find new ways to receive equitable ted%20intellectual%20property%20regime%20for%20africa%22%22 overcoming data protection security measures. however, this sub-section herrington tk controlling voices intellectual property, humanistic studies the functional equivalent implementation of the wct treaties and other international sources 2001 (26) european law review 529 davies public interest technological protection measures.30 2006] the us argued that the rule against circumvention is in the public interest. it is harmonisation of certain aspects of copyright law in the information society (copyright university of california 1996 copyright legislation and scholarly 160/197 resources, such as electronic journals, are thus 'tied in' to continue to subscribe digitisation and digital networks is being undermined by the continuing restricting access to information.56 in south african law. the anti-circumvention provisions were embraced in it is understood that the provisions of article 10 permit contracting 5 impact of technological protection measures on developing livermore and euarjai 1998 jilt http://elj.warwick.ac.uk/ 10 mar 89450_ebook.pdf#search=%22uncitral%20working%20group%20on% the hoffmann cyberspace digital works. however, technology is blind and cannot distinguish between fair on internet] http://elj.warwick.ac.uk/jilt/ecomm/98_2liv/ [date of use 10 mar writings. article 5 provides that where a rule of law (national laws) requires prohibition reads as follows: http://www.common-sense.org 10 mar 38-39. budapest open access initiative 2001 [found on internet] 64 armstrong and ford 2005 2004 (memorial oj - a no 50 of 30 april 2004 1024-1056) right holders are required to copyright owners beyond what is required for compliance with the wct. far- that it is one of the objectives of model law that the adoption of the functional- ** ba (pret) llb (unisa) llm (pret) lld (pret), professor of intellectual property law at protection measures do not distinguish between uses which are not authorised nwauche 2005 http://www.codesria.org/ 20 apr wipo copyright treaty (wct). the wct entered into force on march 6, 2002, in technology on copyright law. however, aspects of the wct have been adopted copyright have the right to use the work fairly; the author does not have the difficult questions are posed of how copyright exceptions can effectively be 1 indeed, in the earliest discussions concerning the internet and its implications for customs and excise act 91 of 1964 force on 6 march 2002. it provides for protection against the circumvention of relatively poor quality. moreover, the copies were physically located in the by the berne convention. the a2k treaty has a strong human rights 'functional-equivalent' approach, attention was given to the existing hierarchy of 12 wiese 2002 comms l 146. http://www.ucop.edu/irc/wp/wp_docs/wpd006.html [date of use 13 mar association publishing london 1999) technology conference held in hamburg, germany on 1 may 2006; see kierkegaard similarly, these provisions should be understood to permit who may use the work, or how it should be used. users of a work protected by model http://wsispapers.choike.org/ 8 mar 11. also refer to wsis 2003 conference, the wct focuses on the act of infringement rather than the device regard to a password, access code or any other similar kind of data with the and technical, to the maximum of its available resources, with a view to achieving document enjoys, where both the paper-based document and the electronic electronic communications and transactions distribution of the works to millions of users.3 1998 jilt http://elj.warwick.ac.uk/ 10 mar 1-2. 2003 http://www.itu.int/ 10 mar. walden i "regulating electronic commerce: europe in the global economy" 2005] 65 see sun 2005 iic at 211. the author.17 article 11 of the wct requires contracting parties to provide adequate legal van coppenhagen 2003 salj 429-454 47 for more information on the first sale doctrine, refer to hoffmann cyberspace 37-38; lee http://www.uncitral.org/ 20 apr par 16. it is noted in par 16 that and on enlarging the digital divide, or the gap between the information rich as the new partnership for africa's development oct 2001 [found on public access rights should be enjoyed irrespective of the internet] http://elj.warwick.ac.uk/jilt/01-1/waelde.html [date of use 10 mar brief 2 [found on internet] http://www.3dthree.org/pdf_3d/3dpolbrief- dreier t "unsolved copyright issues in digital and network environment" developed countries have disturbed the copyright balance. content owners the principles of contract law are old � they were formed in a paper-based necessarily perform all conceivable functions of a paper document. t pistorius per/pelj 2006(9)2 the content owner may through technological protection measures regulate the `access' includes the actions of a person who, after taking note of to extend print practices into the digital environment should focus on objectives http://www.codesria.org/ 20 apr text at n 132. potential to lock out most citizens of developing countries. t pistorius per/pelj 2006(9)2 8 in december 1996 the "wipo diplomatic conference on certain copyright and any data, becomes aware of the fact that he or she is not authorised authors; the threats include the danger of unauthorised adaptations and instead of copies, and practices sanctioned by law in the paper environment 9 1886 as revised at paris 1971 75 uncitral guide 1996 so easily to changing technologies.6 access to such material involves an act of copying. the simple act of viewing a 45 clm 2004 new technology. the main principles of the model law � functional equivalence it is stated that ict should allow member 165/197 electromagnetic emissions from a computer system carrying data. see altini 2002 170/197 property.43 offence established by the preceding sections, namely access, interception or librarians (neal-schuman publishers new york 2001) collaborations among tertiary institutions and research bodies.63 developing countries and copyright in the information age related rights in the information society" 2005 revue internationale du t pistorius per/pelj 2006(9)2 175/197 howland 1997 euro tl 5 may. maintain a balanced copyright regime: between the parties the governments cannot intervene, which effectively limits (xxi), 21 un gaor supp (no 16) at 49 (un doc a/6316 (1966), 993 unts 3) (entered content of the data, provided that a number of technical and legal requirements are met. 4 the implementation of the wct in developing countries protection measures in order to access works were eroded. to circumvent a technological measure means to descramble a model law, is adopted. http://www.itu.int/wsis/docs/geneva/official/poa.html [date of use 10 mar respect, the right to education, the right to seek, receive and impart information, in the paper-based this is contrary to one geist 2006 lex electronica http://www.lex-electronica.org/ 8 mar authorised by the owner, but which are also infringing.45 priorities) wherein it is stressed that the digital divide and the 'education gap' must be if access to knowledge is dependent on the individual's ability to herrington controlling voices wct 2001 http://www.wipo.int/ 10 mar limitations and exceptions are defined narrowly and cannot adapt human rights: how human rights can support proposals for a world with technological protection measures demonstrates the detrimental impact of http://www.uncitral.org/ 20 apr par 17. industrial property and copyright law 570-585 authors can effectively control access to their works and demand payment for under existing law, the doctrine of first sale states that once an individual copy 66 see sun 2005 iic at 211. the wct retained the delicate balance between public and private copyright locations around the world in a matter of minutes. the internet has been dreier 2004 http://www.intellecprop.mpg.de/ 26 apr draft access to knowledge treaty 2005 environment with appropriate safeguards against abuse is supported.67 copyright work. a technological measure, in turn, has been defined as a inexpensive and widespread diffusion of education materials made possible by 171/197 technological protection measures applied to works protected by copyright. should be independent of particular technologies. in the digital environment, 13 mar 2006] wiese h "anti-circumvention laws: a `circumvention' of the copyright it 7 conclusion the malaysian copyright act 1987" 2005 european intellectual property law auche.pdf#search=%22%2bnwauche%20%2b%22development%20orien 20 apr 2. a 27(2) of the universal declaration of human rights (hereinafter, universal exceptions that are relevant to the digital environment.29 computer program mentioned in subsection (3) in order to unlawfully overcome wealde 2001 jilt http://elj.warwick.ac.uk/ 10 mar with what type of consequences? interception should be described or defined to refer to united nations, international covenant on economic, social and cultural 14 digital millennium copyright act of 1998 105 pub l no 304 112 stat 2660 (hereafter 63 see nepad 2001 http://www.nepad.org/ 5 may at part b: programme of action (sectoral owen selling rights use of and access to works in digital form. secondly, the content owner obtains 71 see uncitral model law on electronic commerce 1996 with additional a 5 bis as publishing and content houses, supported by international and national 154/197 article 6.4 5 may 2006] technology to protect their intellectual property. technological protection rights and database rights act of 2001 of 18 april 2001 as amended by the law of 18 april communication techniques may contribute to limiting the extent to which neighbouring rights questions" that met in geneva culminated in the adoption of the open, public, global networks such as the internet is hindered by the fact that internet for research and educational purposes.55 proliferation of protectionism within the context of the widening digital divide. access to information and the expansion price me and verhulst sg self-regulation and the internet (kluver law reaching rights have been granted to copyright owners to prevent the section 86(2) provides that a person who intentionally and without authority to law in the information society electronica.org/articles/v10-3/geist.htm [date of use 8 mar 2006] notes that the other threat to users is law-specific. summit on the information society document wsis/pc-2/contr/97-e contracting parties to devise new exceptions and limitations that are systems include anti-copy devices, access control, electronic envelopes, price and verhulst self-regulation this initiative. see herrington controlling voices 91-111. domain such protection attaches only to those particular copies (or those works 35 the provisions of s 86(1) is subject to the interception and monitoring prohibition act 127 of electronic communications for commercial transactions posed unexpected lee copyright guide inalterability with respect to paper-based documents.79 boai 2001 http://www.soros.org/ 10 mar 79 see uncitral guide 1996 the greatest advantage of the internet is supposed to be access to millions of the use of electronic commerce, for example by prescribing that certain access to encrypted works again and again.49 t pistorius** "functional equivalent approach", which is based on an analysis of the essential glatt c "comparative issues in the formation of electronic contracts" 1998 law adopted a flexible standard, taking into account the various layers of these countries reveal that all eleven countries' laws grant protection to the general practice of adhering to strict technological protection measures, development of social science research for africa (codesria) in proprietary viewer software, encryption, passwords, watermarking, do so, is guilty of an offence in terms of section 86(1).35 2 see anon 1997 pc week 3. reproduction right is worded so broadly that it easily applies to digital 150/197 society. the implementations of the wct and anti-circumvention provisions in evaluation of material for acquisition by a non-profit library or educational in turn, impacts on the application of exceptions and limitations. the traditional possible to graft a technology neutral solution for the interface of copyright and these principles technological measures that are not authorised by the authors concerned, or empowerment which are indispensable for sustainable development. the rights 174/197 the wipo development agenda and its focus on the role of copyright in neuen 2005 rida 69 see walden 2001 elr 537. albert cyberspace of the right holders.40 information technology vol 2 (institutt f�r rettsinformatikk oslo 2006) luxembourg copyright, related rights and database rights preserves the copyright balance. in the tradition of international intellectual international trade law to establish a working group to draft legal rules on copyright law has emerged as one of the most forceful means of regulating the 73 the guide to enactment 1996 (hereafter uncitral guide 1996 http://www.uncitral.org/ this trend is especially harmful to developing countries as the net importers of 20 apr) was considered by the working group on electronic commerce and its final form as was noted by the delegate for south africa, speaking for the african group paper-based environment.77 states are obliged to provide adequate legal protection against acts of inadequate.36 cyber offence relating to the unauthorised access to, interception of or register of legislation has not been amended to address the impact of digital t pistorius per/pelj 2006(9)2 29 this is unfortunate as africa is a net consumer of copyright goods. see nwauche 2005 may 2001 on the harmonisation of certain aspects of copyright and http://www.codesria.org/links/conferences/general_assembly11/papers/nw documents or contractual clauses be made in written form.81 property rights whilst the promotion of access to knowledge and information is internet" 2001 (1) journal of information law and technology 1 [found on piracy of works protected by copyright. authors increasingly took advantage of berne convention for the protection of literary and artistic works of september register internet resources licence agreements frequently override copyright of countries when introducing the wording of article 11 at the 1996 diplomatic furthermore, the test relates to what is "not and these copies can be transmitted to t pistorius per/pelj 2006(9)2 africa" paper presented at the 11th accordance with a 20 of the wct. see wct 2001 http://www.wipo.int/ 10 mar (hereafter parties to carry forward and appropriately extend into the digital intentionally accesses or intercepts any data without authority or permission to adopted in 1998 (general assembly resolution 51/162 of 16 december 1996) (hereafter the right to freedom of expression, and the right to enjoy the benefits of also permitted to devise new exceptions and limitations that are appropriate in remove, deactivate, or impair a technological measure without the authority of negotiated in the wct is upset. 80 uncitral guide 1996 http://www.uncitral.org/ 20 apr par 16-17. which entered into copyright directive contains one compulsory exception related to temporary this approach is bolstered by the wipo copyright treaty8 the un covenant on economic, social and cultural rights (cescr). the united functional equivalent provisions, adapted to address fair use in the digital world, materials protected by copyright without infringing copyright. we can borrow a contracting parties are of embodiment.84 and research purposes. current trends in copyright law have upset the balance 24 see a 5(2)-5(4). these exceptions include (free or paid for) exceptions relating to the equivalence" 1998 (2) journal of information law and technology [found does not make any provision for users to benefit from limitations and and control access. the digital network environment. protection and effective legal remedies against the circumvention of effective 70 glatt 1998 ijlit 57. budapest open access initiative 2002 statement [found on internet] provides that the governments of member states may intervene to enable a have been considered acceptable under the berne convention. bollier d 2006 a new treaty to assure `access to knowledge? [found on gain: all forms of unauthorised uses are barred. this has upset the delicate t pistorius per/pelj 2006(9)2 public and private interests in intellectual property rights. opportunities for form requirements with a view to providing criteria, which, once they are met by 16 see dmca � 1203(b). see albert cyberspace 265-271. 67 university of california 1996 http://www.ucop.edu/ 13 mar 1. the protection of the moral and material interests resulting from any scientific, literary or botswana copyright and neighbouring rights act 2000 landscape in the age of the internet and multimedia [found on internet] book from a library, for example. the application of traditional copyright law to the extension of equivalent qualification of owners' rights into the digital en/wct/treaty_wct_32.html [date of use 10 mar 2005] 51 ovett 2006 1995 copyright world 36 and exchange of the knowledge commons form the core of the treaty on united nations universal declaration of human rights 1948 sun 2005 iic (as revised at paris on 24 july 1971). 25 see a 5(5); a 6(4). rights limit the authors' economic and moral rights and ensure access to works trample roughshod over copyright limitations and exceptions.13 advocated.60 the act states in section 1201(a)(1)(a) that no person may have an important role to play in expanding and improving education, putting in 1998, the boai 2002 http://www.soros.org/ 10 mar to access that data and still continues to access that data. exceptions to copyright and neighbouring rights in the digital and non-discrimination between people within that country.51 for the needs of the new information society. several studies have pointed to over the market for their works. (see neuen 2005 rida 138-163). in terms of s 71 quinquies of the copyright, related equivalent approach, similar to that which was followed by the drafters of the process or a treatment, with the authority of the author, to gain access to the copyright owners the power to dictate who may access their works, when, and general assembly of council for the botswana acceded to the wct in january 2005 after a review of and use of devices and applications designed primarily for the purpose of uncitral guide1996 http://www.uncitral.org/ 20 apr t pistorius per/pelj 2006(9)2 reproduction of a document so that each party would hold a copy of the same data; to right to refuse her work being used fairly. technological protection measures restrictions will prohibit the digital equivalent of examining the contents of or also, increasingly works protected by copyright are not sold in the t pistorius per/pelj 2006(9)2 http://www.intellecprop.mpg.de/onl.nen/dreier-digi-exploitation.html [date consumers and the public interest, have become vulnerable to abuse. this wipo copyright treaty 2001 notification no 32 wipo copyright treaty act of 18 april 2001 as amended by the law of 10 see wealde 2001 jilt http://elj.warwick.ac.uk/ 10 mar 10. interest exceptions, the great divide between the information rich and the edwardsville 2001) access to knowledge in the digital age.53 33 see the definition of data message in s 1 of the ect act. the rights of creators by permitting a defence against charges of infringement the balance between private and public rights may be restored if a functional, scientific progress and its applications.61 http://www.cliffedekker.co.za/ 1 mar. publishing london uk 2004) complex 4/06 81-98. threats in the increased legal and technological protection measures that grant seven countries in africa have deposited their instruments to join the wct. the 40 norman education 48. data messages, enable such data messages to enjoy the same level of legal dispose of that copy without the permission of the copyright owner.47 use for the purpose of research or private study and unfair use for commercial van coppenhagen v "copyright and the wipo copyright treaty, with the internet has changed from a quiet means of communication among determining how those purposes or functions could be fulfilled through 159/197 the uncitral model law on electronic commerce71 t pistorius per/pelj 2006(9)2 interference with data. this is, in essence, an anti-circumvention prohibition. t pistorius per/pelj 2006(9)2 perspective, access to information is viewed as the default position rather than it is explicitly recognised in the founding document of the new partnership for appropriate in the digital network environment. norman s copyright in further and higher education libraries 4th ed (rutledge london new york 2001) commission on intellectual property rights and the uk government measure that effectively controls access to a work if the measure, in the protection measures or that have limited use other than circumvention. the wipo-eng.pdf#search=%22%2bovett%20%2b%22policy%20brief%20on system.39 bollier 2006 http://onthecommons.org 12 mar inalterability in order to give electronic transmissions the same legal status as that digital technologies and interconnected networks unauthorised use, but which also to impede users' legitimate rights to access creates a new instituting pay-per-use limits and exceptions to the exclusive rights of copyright owners have ensured copyright protection in the context of the global divide" 2005 (36) allow for the authentication of data by means of a signature; and to provide that a and a number of prescriptive non-mandatory exceptions.24 dynamic tensions are caused by copyright owners' abilities to use digital rights wipo copyright treaty 1996 form requirements, which provides distinct levels of reliability, tractability and access to information is at the core of human rights such as the right to 30 ci report 2006 http://www.cr-international.com/ 13 mar. essentially, it involves the determination of 72 see glatt 1998 ijlit 34. anon 1999 economist 95 exposing users to unreasonably high transaction costs and how the ability of 18 april 2004 prohibit all forms of copying and this grants her the right to refuse that fair use 21 geist 2006 lex electronica http://www.lex-electronica.org/ 8 mar 6. but there is designs, adapts for use, distributes or possesses any device, including a for example, a data message cannot, in and of itself, be regarded as an opposed by many critics. geist notes that the us's dmca and its experience photographic reproduction of material, private copying, illustrations for teaching, etc. messages, or signatures with encrypted data blocks.69 the non-public transmission of computer data to or from a computer system and the permitted by law. checks and balances of the copyright system, aimed at preserving the rights of crystal clear that both the us and the eu will not give up their endeavours to 82 berne convention for the protection of literary and artistic works of september 9, 1886 t pistorius per/pelj 2006(9)2 countries from other continents. a study has been made of the copyright laws information poor in both the developed and developing nations will increase.54 traditionally, the uncertainty about, national legal regimes governing the use of such entry into force [found on internet] http://www.wipo.int/edocs/notdocs/ all copying.46 nations, international covenant on economic, social and cultural rights, ga res 2200 a http://www.iprcommission.org/graphic/documents/final_report.htm [date of beneficiary of an exception to benefit. however, where there is an agreement was also argued that while such protection attaches to works in the public access to not only their original expressions of ideas, but also of vast 77 uncitral guide 1996 http://www.uncitral.org/ 20 apr par 16. referred to as the 'wct'). the protection of technological measures" 2003 south african law journal conventions and other international instruments that create legal obstacles to offence of illegal access interception or system interference. africa's development62 9 van copenhagen 2003 salj 433. fingerprinting (user authentication), metering and monitoring of usage and such works. technological protection measures offer authors complete control policy recommendations on flexibilities in copyright law [found on public domain as their copyright protection expires, may remain practically consumer international report 2006 copyright and access to knowledge - provisions, have had a 'transformative' impact on the scope of copyright law as it 60 see shashikant 2005 and togo.26 owen l selling rights 4th purpose and function of a traditional paper-based requirement with a view to http://www.uncitral.org/pdf/english/texts/electcom/05- 49 see sun 2005 iic at 204. university of california 1996 http://www.ucop.edu/ 13 mar criminal offence such as hacking. the act outlaws the production, distribution 56 see ovett 2006 http://www.3dthree.org/ 9 mar 3-7. wsis 2003 http://www.itu.int/ 10 mar intellectual property law, are to blame. for instance, it is argued that the 78 see uncitral guide 1996 http://www.uncitral.org/ 20 apr par 18; livermore and euarjai t pistorius per/pelj 2006(9)2 exceptions and licensors are not obliged to consider public policy relating to fair the internet and digital technology provide opportunities and pose threats to 27 see the botswana copyright and neighbouring rights act 2000 (hereafter referred to as it is in line with the nature of copyright protection and group. agreed statement concerning article 10 of the wct emphasises the need to existing copyright law recognises the tension between the needs of society and system interference. reference to "the contravention of this section" is t pistorius per/pelj 2006(9)2 communication are performing the same function.76 153/197 described as "the world's biggest copy machine".2 this definition is not useful as access is defined by reference to access. internet] http://onthecommons.org [date of use 12 mar 2006] principles should be independent of particular technologies. in the digital ovett d 2006 "policy brief on intellectual property, development and lee re a copyright guide for authors (kent press stamford ct 1995) european transport law 703 23 see a 5(1). by all; to provide that a document would remain unaltered over time; to allow for the hoffmann gm copyright in cyberspace questions and answers for trend affects information users everywhere, but it has an even greater effect on 152/197 developing countries should devise their own strategies to cope with the south africa's efforts to wage war against cyber crime. section 86 of the licensing and technological protection measures has tipped the scale in favour mirror" 2006 (10) lex electronica 2 [found on internet] http://www.lex- 2 legislative responses to the digital agenda nepad 2001 http://www.nepad.org/ 5 may circumvent a technological measure that effectively controls access to a geist m "looking at the future of canadian copyright in the rear view commerce more stringent standards of security (and the related costs) than in a 161/197 both acts and devices that enable the circumvention of technological uncitral working group on electronic commerce 1996 guide to access to 44 see clm 2004 http://www.ifla.org/ 09 mar. noted that in respect of all of the above-mentioned functions of paper, electronic records 13 van coppenhagen 2003 salj 442. 166/197 2006 volume 9 no 2 existing requirements in a paper-based environment: when adopting the technology.5 mechanisms without any exceptions for research and teaching have the 155/197 circumvention. member states must also prohibit the dealing in products or 173/197 t pistorius per/pelj 2006(9)2 bridged by investing in information and communication technologies; see also the opposed to the information poor. the threat to the free flow of scholarly 34 compare for example the definition of access in the customs and excise act 91 of 1964. accomplished under conditions of technological protection measures without equivalent qualification of owners' rights should be extended into the digital format as opposed to those of works in outdated formats. two examples: first, unauthorised copying. however, the copyright laws of the eleven countries t pistorius per/pelj 2006(9)2 equated with the price at which access to works may be lawfully attained.19 20 albert cyberspace 264-265. see wealde 2001 jilt http://elj.warwick.ac.uk/ 10 mar 11. dreier 1995 copyright world strengthen and expand the copyright protection of information products.66 defined above ever be authorised? what is the prohibited action � access or interception, bibliography the general public to seek and find important information can be preserved. was envisaged by the wct. article 10 permit contracting parties to carry pay, the less privileged will be placed at a distinct disadvantage.44 this sub-section 86(3) is significant as the act for the first time provides for a security measures for the protection of data, or performs any of those acts with 151/197 5 see khaw 2005 eipr 55; wiese 2002 comms l 146-154. into force 03 january 1976). a 2(1) of cescr provides that states must: "take steps, a person who seven countries are botswana, burkina faso, gabon, guinea, mali, senegal contained therein is accessible so as to be useable for subsequent reference. individually and through international assistance and co-operation, especially economic scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, uk cipr 2002 http://www.cptech.org/ip/wipo/uk-iim.doc 22 jun destroyed or otherwise rendered ineffective, is guilty of an offence. the specific open access scholarly exchange of information. the max planck society is also part of however, the botswana copyright act paper documents fulfil the following functions: to provide that a document would be legible legitimate right to access such works. in the physical world, we can access it has been noted that it is your computers' random access memory.38 communication basic principles [found on internet] but failing to devise limitations and exceptions, is also followed by developing remuneration for the exploitation of their works in cyberspace. see anon 1995 economist committee on copyright and other legal matters 2004 limitations and 32 electronic communications and transactions act 25 of 2002 (hereafter referred to as much to the fact that legislation requires pieces of paper and therefore excludes copyright act31 furthermore, the requirement that data be presented in written form (which harmonization of certain aspects of copyright property treaties, the wct states only the minimum level of protection. furthermore, it is unclear at what point a person must become aware of the fact protection of access-controls empowers right owners to charge for individual shashikant s 2005 "intellectual property and the wipo `development 26 see nwauche 2005 http://www.codesria.org/ 20 apr text at n 90. the uk commission on intellectual property specifically calls on developing people anywhere in the world to access knowledge and information. it is 162/197 167/197 development can legislators that are confronted with new technologies often propose intent to unlawfully utilise such item to contravene the section, is guilty of an under review contain very limited limitations and exceptions to these copyright editions of that electronic resource are terminated. subscribers to on-line 19 see wealde 2001 jilt http://elj.warwick.ac.uk/ 10 mar 11. protect their works against unauthorised use, but which also counter users' l no 304 112 stat 2660 38 ram. http://www.soros.org/openaccess/ [date of use 10 mar 2006] and practices sanctioned by law in the paper environment may have significant davies g copyright and the public interest (sweet & maxwell london section 86(4) provides that a person who utilises any device or 52 refer, e.g., to the open society institute's budapest open access initiative and document would be in a form acceptable to public authorities and courts. it should be an appropriate sense of balance between the private interests of the copyright european union 2001/29/ec of the european parliament and of t pistorius per/pelj 2006(9)2 licensed subject to certain terms and conditions of use. the increased use of referred to as 'dmca'). knowledge has an important role to play in development.50 resulting from any scientific, literary or artistic production of which he is the author." the a2k treaty. the author would like to acknowledge the funding of the munich intellectual property law the model law may be used as a tool for interpreting existing international 429-454 world the work is issued to the public once published. the author cannot dictate consequences if it is not, a data message satisfies that rule if the information t pistorius per/pelj 2006(9)2 dreier t 2004 copyright law and digital exploitation of works: the current this to paper-based works.25 world intellectual property organization 2003 contribution at the world t pistorius per/pelj 2006(9)2 [date of use 20 apr 2006] it is also important to note 172/197 environment, storage, distribution and use are accomplished by algorithms 149/197 the profound impact that dmca-like legislation have on developing countries 1 introduction waelde c "the quest for access in the digital era: copyright and the and technology neutrality � are the key here. one may argue that drafting of a work has been sold, the owner of that particular copy may sell or otherwise services that are primarily designed for circumvention of technological international_copyright_and_access_to_knowledge_16.2..pdf [date of use publication of works and thereby enhancing society's level of knowledge. this, knowledge and research outputs into the public domain and facilitating copyright owners will have a complete monopoly over learning and thus control in may 1997, the "guide to these by the owner, but permitted in law (fair dealing) and uses which are not livermore j and euarjai k "electronic bills of lading and functional when technologies did not exist to replace documents in 'writing' with e-mail droit d'auteur 138-182 39 see owen selling rights 247-248. academic and scientific research circles to a major global data pipeline through t pistorius per/pelj 2006(9)2 recognition as that of paper documents performing the same function.78 54 clm 2004 http://www.ifla.org/ 09 mar 16. also see norman practical 153. model law). act 25 of 2002 appropriately extend limitations and exceptions to the digital environment. the should refer to the use of devices with the intent that it be used to commit any this policy approach as free speech and user rights have suffered.21 'access' is defined in s 101a of this act as gaining entry into, instructing or communicating can provide the same level of security as paper and, in most cases, a much higher degree a 15(1)(c) of cescr provides: "the states parties to the present covenant recognize the 2002) albert, gp intellectual property law in cyberspace (bna books declaration) (ga res 217a un doc a/810 1948) provides that: "everyone has the right to between the protection of copyright owners' rights and public interests. commercial communications were never contemplated. the advent of the use 6 dreier 2005 copyright world 36; wiese 2002 comms l 146-154. copyright, some commentators argued that the copyright protection of works could not be south africa copyright act 98 of 1978 agenda'" [found on internet] http://wsispapers.choike.org//briefings/eng/ for african education as it could, and that many of the practices of large storage, distribution and use are accomplished by algorithms instead of copies, technology-specific and narrow rights and limitations. for example, the copying23 ovett 2006 http://www.3dthree.org/ 9 mar the exception.58 remuneration systems.7 the guide states that disparities among, and the botswana copyright act provides for the legal 57 see bollier 2006 http://onthecommons.org 12 mar. 156/197 76 see howland 1997 euro tl 703. maputo mozambique 6-10 december 2005 [found on internet] 41 see clm 2004 http://www.ifla.org/ 09 mar. security measures designed to protect such data or access thereto, is guilty of information products. access to information leads to knowledge and clm 2004 http://www.ifla.org/ 09 mar be seen as a process which involves fairness of opportunity between countries 46 geist 2006 lex electronica http://www.lex-electronica.org/ 8 mar 6. http://www.soros.org/ 10 mar; and the bethesda and berlin declarations aim to cerate exceptions as adopted under the berne convention.82 allowed mechanical copying by individual consumers, they did so in limited the wct has not been implemented in south african copyright law. the [date of use 10 mar 2005] 5.2 political responses 37 as noted under the discussion of s 86(3) above, this section should refer back to the basic ordinary course of its operation, requires the application of information, or a 81 uncitral guide 1996 http://www.uncitral.org/ 20 apr par 5. 31 see the south african copyright act 98 of 1978. wsis-03/geneva/doc/5-e [found on internet] had over-reached and created 'super-copyright' or 'para-copyright'.11 walden 2001 elr correa cm "fair use in the digital era" 2002 (33) international review of collections of information. this has the potential to limit the size of the public for purposes of review or criticism and academic research.12 15 correa iic 570-585. the anti-circumvention prohibition applies to data messages, namely electronic inaccessible due to technological protection measures.42 157/197 way that books or videocassettes were sold in the past. these days they are anon "it's the world's biggest copy machine" pc week 27 january 1997 3 altini n "cyber crime" in commentary on the electronic communications 158/197 the criteria which the equivalent electronic communication must meet in order environment for what has become known as 'electronic commerce' by providing t pistorius per/pelj 2006(9)2 ci report 2006 http://www.cr-international.com/ 13 mar owner and the interests of the public. flow of ideas and knowledge-based products.65 copyright guide 47. circumvention of technological measures that protect their works against 62 see the new partnership for africa's development (nepad) 2001 http://www.nepad.org/ continue to subscribe to a digital resource, access to future as well as past anon "digital rights and wrongs" economist 17 july 1999 95 world summit on the information society 2003 plan of action document world that ran on paper and ink. the meeting of minds in cyberspace was never the users' opportunities lay in the information, as a fundamental human right, should shape the legal framework was adopted on 12 june 1996 and aims to create a more secure legal (i.e., technical protection measures) could and should lock and unlock content. this need for legal certainty prompted the united nations commission on rather than on strictly analogous practices.68 28 see nwauche 2005 http://www.codesria.org/ 20 apr 2. electronic-commerce techniques.75 it is also understood that article 10(2) neither reduces nor extends and complex legal problems. it is noted that the uncertainties relate not so http://www.soros.org/openaccess/read.shtml [date of use 10 mar 2006] take the necessary steps, including by contractual agreement or by deactivating the environment: an international library perspective [found on internet] t pistorius per/pelj 2006(9)2 the functional equivalent implementation of the wct it has been noted that where article 11 of the wct tiptoes where it might it has been noted that the wct, and in particular the anti-circumvention important to note that wsis explicitly upholds the respect for intellectual copyright law was designed to protect works in tangible form. online, each 53 clm 2004 http://www.ifla.org/ 09 mar 6. http://www.lex-electronica.org/ 8 mar 2. digital form through technological means. encryption and the use of various 168/197 2006] 4 wiese 2002 comms l 146-154. an offence.37 appropriate means, including particularly the adoption of legislative measures." most jurisdictions. the model law singles out basic functions of paper-based response [found on internet] http://www.ifla.org/ 09 mar; owen selling rights 242-243. unites states of america digital millennium copyright act 1998 105 pub protection.15 shashikant 2005 http://wsispapers.choike.org/ 8 mar same place as the person making the copies. on the internet, by contrast, one guide (a collaborative output of the commons-sense project) [found on the council of 22 may 2001 on the 55 see uk cipr 2002 http://www.cptech.org/ip/wipo/uk-iim.doc 22 jun. artistic production of which he is the author". specific reference to the rights applicable in a digital environment and against the circumvention thereof.28 dmca adds to the minimum level of protection required in the wct: it strikes at the botswana copyright act). wipo contribution 2003 http://www.itu.int/ 10 mar 5.1 limitations on access to works %20intellectual%20property%22%22 [date of use 09 mar 2006] commission on intellectual property rights 2002 the report of the internet] http://www.cr-international.com/2006_consumer- http://www.itu.int/ . access to digital works is increasingly governed by contract on a pay-per-view 59 wsis is an acronym for world summit of the information society. see wipo contribution 68 see university of california 1996 http://www.ucop.edu/ 13 mar 3. united states congress passed the digital millennium copyright act.14 information to be in writing or to be presented in writing, or provides for certain it has been noted that without exceptions furthermore, where a licensee becomes unable to offence. in the absence of effective public permitted by law".10 equivalent of a paper document as it is of a different nature and does not 74 uncitral guide 1996 http://www.uncitral.org/ 20 apr 4. businesses may access international markets.74 altini 2002 http://www.cliffedekker.co.za/ 1 mar 61 ovett 2006 http://www.3dthree.org/ 9 mar 7. see nwauche 2005 http://www.codesria.org/ and the internet (southern illinois university press carbondale and concerned that license quantities, required considerable time and investment and produced copies of that access is unauthorised and continue to attempt to gain access for her disparity is created between the level and forms of protection of works in digital enactment" was published.73 website requires your computer to make temporary local copies of the data in have gained the right to control both access to and use of copyright works in international review of industrial property and copyright law 192-213 of libraries to lend is based on this doctrine.48 6 the functional equivalent approach equilibrium between private and public rights. perceptible degradation in quality.1 17 see � 1203(b). sun h "copyright law under siege: an inquiry into the legitimacy of its copyright law.27 83 university of california 1996 t pistorius per/pelj 2006(9)2 it should be of the fundamental arguments for copyright protection � encouraging the nwauche es "a development oriented intellectual property regime for 'ect act'). t pistorius per/pelj 2006(9)2 anon 1997 pc week 3 the right to decide if fair use will be allowed and to what extent. technological 84 the approach followed in the implementation of the wct in luxembourg is a case in point environment limitations and exceptions in their national laws which washington dc 1999) 2005] nations, international covenant on civil and political rights, ga res 2200a (xxi), 21 un khaw lt "of encryption and devices: the anti-circumvention provision of 11 see geist 2006 lex electronica gaor supp (no 16) at 52, (un doc a/6316 (1966), 999 unts 171) (entered into force caused by copyright owners' ability to use technological protection measures to armstrong and ford 2005 http://www.common-sense.org 10 mar a tool for states to enhance their legislation as regards paperless copyright law is playing an ever-increasing crucial role in the information united nations covenant on civil and political rights 1976 noted that the nub of this argument is economic, as the public interest is contracting parties may enact more extensive protection. however, where is made of her work. the blunt instrument of technology can be used to prevent as termination will result in a loss of past investments. of 1992 form of the work's material embodiment. it may be argued that the same code 42 see geist 2006 lex electronica http://www.lex-electronica.org/ 8 mar 6. constitutes a 'threshold requirement') is not to be confused with more stringent access to knowledge or 'a2k'.57 use and exceptions.41 personal privacy and security testing.18 first sale equivalent is essential to the teaching and research enterprise. the khaw 2005 eipr institution, reverse engineering, encryption research, protection of minors, wiese 2002 comms l correa iic 570-585 the model law translates the requirements of reliability, tractability and electronic commerce.70 with the logical, arithmetical or memory function resources of a computer, computer right of everyone (...) to benefit from the protection of the moral and material interests intellectual property organization (wipo) development agenda" policy 36 see altini 2002 http://www.cliffedekker.co.za/ 1 mar. issn 1727-3781 http://www.3dthree.org/ 9 mar 3. of eleven developing countries in the asian pacific that have implemented of use 26 apr 2006] may have significant unintended consequences. accordingly, legislative efforts are moved. whereas earlier technologies such as photocopying and taping 50 shashikant 2005 http://wsispapers.choike.org/ 8 mar 1. equivalent approach should not result in imposing on users of electronic note should also be taken of (1) international journal of law and information technology 34-57 22 2001/29/ec of the european parliament and of the council of 22 may 2001 on the the requirement of 'writing' or a 'document' is imposed or implied by laws in 20electronic%20commerce%201996%20guide%20to%20enactment%22 in digital format) and not to the underlying works in them.20 system or computer network. centre (miplc) of munich, germany that made research for this contribution possible. progressively the full realization of the rights recognized in the present covenant by all unparalleled and virtually limitless access to works from global authors; the vagueness and restrictiveness of 'fair dealing' (called 'fair use' in the us) developing countries and copyright in the information age