The paper examines what constitutes creative works, the legislative environment, copyright protections, fair use and fair dealing, and the influence of technological advancements, including digital protections, co-production and artificial intelligence-dr
Protecting creative content, material and platforms has become increasingly important, especially in the digital era where all forms of information and online products can be more easily accessed and shared as well as the increased commodification and commercialisation of creative work. This places creative producers, contributors and owners at greater risk of infringing the rights to their works. This is evident in relation to the number of creative industry intellectual property violations and piracy cases that required that greater attention be paid to protecting creative content/ work and enforcing ownership rights. A desktop study is used in this paper to examine key considerations, including what constitutes creative works, examining the legislative environment, copyright protections, fair use and fair dealing, and the influence of technological advancements, including digital protections, co-production and artificial intelligence-driven creativity.
Copyright protections range from not permitting the use of the content/ work without permission from the copyright owner (or procuring the work) to the unlicensed use of copyrighted works. Copyright is viewed as being a mechanism to encourage the production of creative works to foster creative expression while preventing the reproduction, adaptation or distribution of content without the copyright owner’s authorisation. Thus, copyright is intended to reduce/ eliminate copyright infringement. In South Africa, copyright law protects literary works, artistic works, musical works, cinematograph films, sound recordings, broadcasts, programme-carrying signals, published editions and computer programmes. It is also important that copyright measures include economic and socio-ethical (moral/ human rights) considerations that have several implications for the Cultural and Creative Industries (CCIs) such as ensuring economic and other forms of reward/ incentives are accrued, protecting the rights and intellectual property of creative owners and contributors, raising awareness and enforcement, and understanding measures to ensure protection. Additionally, the diversity of creative domains and genres/ types must be considered. The prominence of copyright being a market-based incentive for creative production and protection is evident. Creative Commons delineate when and under what conditions rights provided by copyright could be relaxed, especially to support what is deemed to be for the public good. Fair use and fair dealing permit the use of content/ work for specific purposes such as news reporting, educational reasons and entertainment. This depends on country-specific legislative contexts and parameters that delineate the types of activities for which permission to use is granted or where exemptions apply.
A key debate in the literature is what constitutes creative content since the creative process and creativity are highly subjective. Additionally, artificial intelligence in co-authorship and co-ownership challenges traditional notions of creativity. Furthermore, the creativity requirement (embedded in terms such as ‘originality’, ‘invention’, ‘innovation’, ‘talent’, ‘artistic skill’ etc.) has increasingly become nebulous with mass generation of similar creative outputs.
In terms of the policy and legislative context in South Africa, the Copyright Act No. 98 of 1978 remains the main law and attempts to amend this Act have remained unsuccessful, despite consensus that it is outdated and inadequate, especially in relation to considering digital advancements and royalty payments. This is primarily because the Copyright Amendment Bill has been challenged on numerous grounds, including violating the rights of persons with disabilities, not sufficiently addressing the digital environment, provisions for the reproduction of books and copyright automatically transferring to the State when an owner cannot be located or dies. The paper also identifies other pieces of legislation such as the Cinematographic Films Act No. 62 of 1977, the Trade Marks Act No. 194 of 1993 and the Performers’ Protection Act No. 11 of 1967 that impact on the protection of creative content and works. Additionally, South Africa is a signatory to two major international copyright conventions: the World Intellectual Property Organisation (WIPO) Berne Convention for the Protection of Literary and Artistic Works (1971) and signatory to the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (1994). Additionally, South Africa is committed to support (but has not ratified) international treaties such as the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty and Marrakesh Treaty to support persons who are blind, visually impaired or otherwise print disabled to access published works. The need to examine historical legacy expropriation of cultural and creative work that remains unresolved is also noted.
The main measures to protect creative content, material and platforms are copyright and fair use and dealing that permits the unlicensed use of copyrighted works under specific conditions that could include educational purposes, research, judicial proceedings, news reporting, parody/ entertainment, etc. The ability to monitor fair use and fair dealing as well as having the capabilities to address violations, misuse and exploitation of fair use and fair dealing are of concern. Creative Content licensing, as noted earlier, is a measure that promotes open access. Four conditions need to be met: attribution, non-commercial, share-alike and no derivatives. Creative Commons also provide for zero licensing when creators can waive all their rights. Technological protection measures (such as encryption and the use of various digital locks, digital image authentication/ digital watermarking and blockchain-enabled cryptographic assets) are applied to copyright works in digital form to protect content and detect infringements. Noteworthy is that there are increased trends among newer genres of creative activities (such as video game production) to embrace open intellectual property business models that are profitable.
The need to balance copyright protection and enable access for mainly educational and public good purposes emerges as a key consideration. In this context, recommendations are forwarded, including revising/ amending and updating legislation. Relevant and comprehensive legislative frameworks need to be instituted to protect creative content and other forms of copyright in South Africa. Additionally, mechanisms and the necessary systems and infrastructure (including appropriate databases and repositories) need to be in place to facilitate the registration of copyright works that are sensitive and supportive of the diversity of domains/ genres in the CCIs and the different types of creative producers. It is also recommended that audience consumption and preferences be monitored, and lessons from the economic valuation of ecosystem services be adapted for the CCIs. Furthermore, it is suggested that a dedicated legal aid team be established in South Africa for the CCIs to ensure protection and enforcement. Considering the application of patent right requirements in relation to certain types of creative content, material and platforms is also advocated. The Department of Higher Education and Training’s (DHET, 2017) Creative Outputs and Innovations Policy for Public Higher Education Institutions could also be broadened for the CCIs more generally. Finally, it is suggested that government should ensure that there is a mechanism to remunerate/ compensate creative content producers and owners for losses incurred when content becomes accessible (without compensation) for fair use and fair dealing purposes.
