Tuesday, April 28, 2015
Richard Michael Shay, University of South Africa School of Law, has published Exclusive Rights in News and the Application of Fair Dealing in The South African Mercantile Law Journal (2014). Here is the abstract.
This article examines the rules and doctrine of the South African Copyright Act relating to the protection (and protectability) of information, specifically factual information relayed by commercial news services. The few reported South African cases provide an elementary understanding of the idea/expression dichotomy underlying copyright law. American courts have decisively extended this principle through the formulation of the Doctrine of Merger. I argue that this judicial creation is a choice of policy which errs on the side of caution when potentially protecting plain expression, a choice which is similarly open to South African courts. The defence of fair dealing for the purpose of reporting current events is then discussed, and the Doctrine of Merger features in the analysis of the factors that are invariably consulted to determine fairness. The piece concludes by issuing several caveats on the application of these factors.
Download the article from SSRN at the link.