Browsing by Author "Shay, Richard Michael"

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    Constitutionalising copyright : a principled normative theory for transformative copyright adjudication
    (Stellenbosch : Stellenbosch University, 2023-03) Shay, Richard Michael; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: This dissertation investigates South African copyright law from a constitutional vantage point, specifically the role of adjudicators in effecting transformation of this realm of statutory law. Copyright law in South Africa long predates the advent of the Constitution of the Republic of South Africa, 1996, and the Copyright Act 98 of 1978 has seen sparse revision since its initial promulgation. While the constitutional mode of adjudication requires substantive reasoning and value-based interpretation to facilitate the transformation of all law under the single-system-of-law principle, this modality has yet to permeate the copyright context. The formalistic mode of reasoning employed in copyright adjudication arguably perpetuates an independent normative sphere in which property and trade looms large, accompanied by an array of interpretive canons and conventions that are a product of the erstwhile conservative legal culture that characterised South African legal interpretation prior to the constitutional era. Ronald Dworkin’s theory of Law as Integrity is discussed as a candidate reading strategy for courts engaged in transformative interpretation of South African law. Dworkin’s interpretive model of constructive interpretation is found compatible with the constitutional mandate to adopt a value-based strategy intent on “promot[ing] the spirit, purport and object of the Bill of Rights, as section 39(2) instructs. Furthermore, Dworkin’s dignity-based theory comports with the South African iterations of the fundamental triumvirate of “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms”, entrenched in section 1(a) and reinforced by section 39(1). Likewise, the Constitutional Court jurisprudence on the question of direct horizontal application of the rights in the Bill of Rights could be read to suggest that Dworkin’s normative approach may assist in defining the scope and ambit of duties between private parties, notably when the legal relationship is mediated by copyright law. Dworkin’s view of law as fidelity to the mandate of dignity through interpretation is ported to the copyright setting by relying on the taxonomical theory of intellectual property propounded by Robert Merges, comprising the trichotomy of justificatory foundations, midlevel principles, and practical doctrine. These concepts are reformulated to reflect a normatively responsive, principled account of adjudication in the South African situation.
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    Users' entitlements under the fair dealing exceptions to copyright
    (Stellenbosch : Stellenbosch University, 2012-12) Shay, Richard Michael; Van der Walt, A. J.; Dean, O. H.; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH ABSTRACT: This thesis analyses current South African copyright law to ascertain the proper interpretation and application of the fair dealing provisions contained in the Copyright Act 98 of 1978. Copyright law ensures that authors’ works are not used without their consent, which they can grant subject to compensation or conditions attached to the use. Fair dealing exceptions allow the general public to use copyright works for certain purposes without the copyright owner’s consent and without paying compensation. These provisions are intended to balance copyright owners’ interests with the interest that members of the public have in using copyright works for socially beneficial purposes. These provisions typically allow the use of a copyright work for the purposes of research or private study, personal or private use, criticism and review, and news reporting. Unfortunately there is no South African case law concerning the fair dealing provisions, and the application of these exceptions remains unclear. This study aims to clarify the extent of application of the fair dealing exceptions to copyright infringement so that courts may be more willing to consider foreign and international law and in doing so develop South African intellectual property law. The social and economic policy considerations underlying the fair dealing exceptions are considered to determine their function. International conventions relating to copyright and neighbouring rights are examined, specifically the provisions allowing exceptions to copyright. The legislation and case law of Australia and the United Kingdom are analysed to determine the proper interpretation and application of these statutory defences. This knowledge is then used to inform South African law. The Copyright Act 98 of 1978 does not contain a fair dealing exception for parody and satire. Australian legislation does contain such an exception, and it is analysed in that context. An exception for parody is proposed for South African law, and the need for and application of this provision is considered. The constitutionality of the proposed exception is evaluated in terms of its impact on the constitutional property rights of copyright owners.