In South Africa, the copyright impasse goes on, with the oft-discussed amendments to the Copyright Act, 1978 still being debated. Amongst the issues is the one of whether South Africa should protect fair dealing, a concept we are familiar with in South Africa, or fair use, which is what they have in the USA.

But elsewhere life goes on. There's been a big copyright judgment in the USA. And there have been some copyright developments in South Africa, even if they aren't exactly inspiring. We'll start in the USA.

THE ANDY WARHOL CASE

Complex facts

The US Supreme Court recently ruled on a copyright issue in a case involving the late artist Andy Warhol. The facts are complex, but the issue was basically this: had changes that the late artist Andy Warhol made to a 1981 photo of the artist Prince, a photo that had been taken by photographer Lynn Goldsmith, constituted fair use?

The court action had been brought by The Andy Warhol Foundation, which sought a declaratory order that the new work was fair use and did not infringe copyright, or to put it differently, that the changes that Andy Warhol had made to the 1981 photo were sufficiently transformative to create a new work.

The judgment

The main issue was whether the changes that Andy Warhol had made to the source work (the 1981 photo of artist Prince) were sufficiently transformative to create a new work. In other words, whether what had been done to the photo "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message".

The US Supreme Court decided against The Andy Warhol Foundation, by a majority of 7-2. Judge Sotomayor, who wrote the majority decision, said that the photographer's 'original works, like those of other photographer's, are entitled to copyright, even against famous artists'. The dissenting judges were Elena Kagan and John Roberts, who said that the majority view 'will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer'.

The reaction

CNN said the court's judgment had been "closely anticipated by the global art world watching to see how the court would balance an artist's freedom to borrow from existing works and the restrictions of copyright law".

There have been suggestions that this judgment may have implications for AI-generated art. There's talk that machines will need to be trained to create works that are sufficiently different so they don't infringe on copyright.

GROUNDUP

Copyright breaches and take-down notices

The South African news site, Groundup, recently received a take-down notice relating to a story that it published. The notice came from a company called Akamai Cloud Computing Services, and there was a 96-hour deadline to respond. The complaint was made under the US Digital Millenium Copyright Act (DMCA), and it was framed as a breach of copyright complaint.

Lottery looting

Yet, it seems quite clear that this has nothing to do with copyright. What this is really about is a Groundup investigation and news article relating to the alleged looting of the South African National Lottery. A story that features a lawyer by the name of Lesley Ramulifho, who is apparently under investigation for corruption involving Lottery grants.

It does seem that copyright is being used as a smokescreen!

ANDRE DE RUYTER: ESKOM

Load-shedding

In South Africa, everyone knows the name Andre De Ruyter. He was, until recently, the head honcho at South Africa's electricity supplier, Eskom. A corporation that has, of course been very much in the news for all the wrong reasons.

Eskom has for years been plagued with serious issues of corruption, mismanagement, theft of equipment and sabotage. The upshot of this is regular shut-downs and outages, "load-shedding" as it's called in South Africa.

The book

De Ruyter eventually quit his job in frustration. He then in record time. The book is called Truth to Power, and in it, De Ruyter sets out just how bad things are. In true South African style, it took no time at all for De Ruyter's book to be pirated, with a pirated PDF of Truth to Power being disseminated on WhatsApp.

The publisher, Penguin Random House, is saying all the right things. The company is "appalled by the illegal distribution of a pirated PDF of Truth to Power". The book "infringes our copyright as well as that of the author and is unlawful in terms of the Copyright Act of 1976". Any "copying or distribution of a pirated e-book, or any forwarding of a link to the pirated e-book, is unlawful". The company "will take legal action ... which may include criminal complaints".

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