Is IP a Lex Specialis?
ATRIP Intellectual Property series
Edited by Graeme B. Dinwoodie
Chapter 3: Fair is as fair does: Contractual normative regulation of copyright user contracts in South Africa
This chapter considers the regulation of copyright user contracts by contract and consumer protection law in South Africa. The normative regulation of copyright contracts was identified as a significant research gap by Kretschmer et al., who specifically list the following questions as being worthy of investigation: How should ‘fairness’ be defined for the context of copyright contracts? Are existing contracts really ‘unfair’? Do alternative contracts, within the current copyright law, exist that can be perceived as being ‘fairer’? If they do exist, do those contracts sacrifice efficiency? To what extent does any perceived ‘unfairness’ depend upon copyright law? Can copyright law be altered in order that the balance of bargaining positions be changed and the resulting contracts are ‘fair’? This chapter engages with some of these questions, which will be posed with regard to user contracts for the reprographic reproduction of copyright-protected works concluded between copyright-holders (represented by a reprographic rights organisation) and higher educational institutions. Here, the main concern is whether such blanket or transactional licenses override statutory exceptions and limitations. If so, is this fair? If it is not fair, how may copyright law be amended to ensure fairness? The key methodology will be doctrinal. The discussion will unfold within an access to knowledge framework, which seeks an equitable treatment of copyright-holder and user interests based on the public interest and constitutional principles.
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