Hello everyone,
With the 16th September dead for getting our proposed amendments to the South African Copy Right Act of 1978 http://www.wipo.int/wipolex/en/details.jsp?id=4067 to allow for Freedom of Panorama https://commons.wikimedia.org/wiki/Commons:Freedom_of_panorama#South_Africa in to the Department of Trade and Industry rapidly approaching I want to share with you what we (Wikimedia South Africa) have currently got.
After some extensive discussions with legal experts on the subject we have come to the conclusion that it would be best to slightly modify Section 15 in two ways (with a possible third also being supported).
*The first*, and most important, is to add in a sub-section to Section 15 that states:
*"The copyright in an artistic work shall not be infringed by its reproduction, distribution and communication to the public if the artistic work is permanently located in parks, train stations, streets, squares or other public interior or exterior places [provided that such use does not unreasonably prejudice the legitimate interests of the author or adversely affects the normal exploitation of the work]."*
This is the most explicit allowance for Freedom of Panorama it is felt we should make. It is modeled on the Australian and Spanish clauses in their copy right acts on the issue.
*The second *is to amend/expand the definition of diffusion service to include digital signals/the internet. I am still struggling to work in the Internet explicitly into the definition (which was originally written in the 1970s before the internet) but this is what I currently have:
"A diffusion service is defined in section 1(1) as "a *digital* or telecommunication service of transmissions or *data transfers* consisting of sounds, images, signs, signals or *other data*, which takes place over wires or other paths provided by material substance and intended for reception by specific members of the public; and diffusion shall not be deemed to constitute a performance or a broadcast or as causing sounds, images, signs or signals to be seen or heard; and where sounds, images, signs or signals are displayed or emitted by any receiving apparatus to which they are conveyed by diffusion in such manner as to constitute a performance or a causing of sounds, images, signs or signals to be seen or heard in public, this shall be deemed to be effected by the operation of the receiving apparatus.""
With these two changes (or even with just the first one) I feel the act will allow for sufficient Freedom of Panorama in South Africa. However I would like to get your feedback on that and how we might be able to explicitly work in "the Internet" into the definition.
The* third* and final thing we could do is broaden the Fair Use exemption in the act which I think would be a good thing to do anyway and is something that other organisations are also pushing for.
You can still access the etherpad we have setup to develop this further at: https://etherpad.wikimedia.org/p/SA_Copy_Right_Act_amendment_bill_-sec_15_(3)
We are still working on this so it is all still open to change.
Thanks,
Douglas.