Intellectual property. Picture: ISTOCK
Intellectual property. Picture: ISTOCK

What happens when Intellectual Property (IP) Law and Information Technology (IT) Law meet head on? A perfect ideological storm where differing legal experts battle for, or against, IP rights in the digital environment.

As we mark World Intellectual Property Day (April 26), two recent developments that illustrate this tension might serve South Africans well, if observed with care.

First, the recent ruling of the General Court of the EU in Constantin Film Produktion GmbH v EU Intellectual Property Office made it clear that aural vulgarity could be a bar to the registration of a trade mark. In this matter, the court held that the title of the German language film Fack Ju Göhte (the English title of the film is reported as Suck Me Shakespeer) may not be registered because it is considered offensive to the famous 19th century writer and lawyer Johann Wolfgang von Goethe.

The court was not persuaded by the contention that the intentional misspelling is a satirical expression in "teenage language" and that the unique combination of the words renders the title innocent of obscenity.

On the other side of the Atlantic, the owner of the US brand Hard Candy Cosmetics withdrew its application for registration of #MeToo as a trade mark in relation to several international classes, after substantial public outcry. This despite the fact that it undertook, after the fact, to donate the profits of all sales of cosmetic products and fragrances generated by the mark to support the social awareness movement.

The parallels between these two examples and that of #JeSuisCharlie and #BlackFriday should not be overlooked. Similarly, in SA, civil society has been known to express its vehement objection to the existence, popularisation and protection of certain works. It is not difficult to observe an analogy with the so-called "rape" cartoons by Jonathan Shapiro or the political commentary expressed as artwork in The Spear by Brett Murray or F**k White People by Dean Hutton, among others.

This, manifestly precarious, balancing act between IP rights and fundamental freedoms has seemingly played a significant role in, inter alia, some of the proposed legislative amendments to the IP regime in SA.

For example, the Copyright Amendment Bill of 2017 is riddled with references to the "user" of the work and their proposed rights and, in relation to digital works, refer only to infringement of "the work" instead of infringement of copyright in the work. At the same time, the legislature proposes draconian criminal sanctions for piracy but leaves the door open to all intermediaries, including the operators of websites that facilitate piracy, to avoid liability on the basis that their service is not "primarily" intended for infringing use.

These examples, at face value, suggest a move towards a more socially aware, emotionally intelligent and constitutionally nuanced interpretation of traditional IP rights in the digital environment. On closer inspection, however, that which is pretty from afar is shown to be far from pretty.

If the flexible societal norms in our remarkably fluid and liberal digital age are permitted to influence the registration of trade marks, what does it suggest for copyright law? Furthermore, if the boni mores (good morals) of, constitutionally speaking, less liberal nations are applied to limit the scope of IP rights in the digital environment, does SA stand any chance of achieving a sound balance between IP rights and fundamental freedoms in the digital environment?

The answer, it is submitted, must be a qualified yes. If the rights of copyright owners are to survive into the digital age, it is necessary to innovate. Since public policy is set to limit copyright even further, and the technologically dependent public interest seems to weigh against private rights without the need for a proper balancing exercise, copyright owners may have to resort to a fist fight. And in the case of piracy, blocking access to infringing content may very well be achieved with the aid of public policy.

In other words, the internet has made it necessary to fight fire with fire, or prosecute copyright infringement with the aid of public policy that does not rely on the Copyright Act alone. It is no longer possible to argue that the right to freedom of expression encompasses the right to access all and any content available on the internet.

When the public interest in digital copyright infringement proceedings is reviewed, two things are apparent.

First, it is futile to expect that the legislature may be persuaded to act in the interest of copyright owners while the required intervention is perceived as contrary to the public interest, particularly in relation to digital content. If foreign trends are anything to go by, the line between the public interest and the public opinion will become more indistinct. As a result, the likelihood that the South African legislature will act to curb online piracy seems more remote than ever.

Second, it is unnecessary and, indeed, reckless to suggest that copyright owners must abide the infringement of their rights in the digital environment for fear of offending the public interest. In fact, it is clear that the public interest may prove to be the sharpest tool at the disposal of copyright owners and that the confines of the Copyright Act should not be lamented but, instead, embraced.

• Jooste is a lecturer in the Department of Mercantile Law and a researcher at the Anton Mostert Chair of Intellectual Property Law at the Faculty of Law at Stellenbosch University. This is an edited version; the full text of the original article is available at www.sun.ac.za/iplaw

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