Browsing by Author "Karjiker, Sadulla"
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- ItemThe challenging relationship between contemporary art and copyright(Juta Law, 2019) Sawyer, Matthew; Karjiker, SadullaThis article seeks to address the current wording of the definition of ‘artistic work’ in the Copyright Act 98 of 1978. It is argued that such wording has failed to aid courts in interpreting it in a way that allows for a broadening of its scope so as to include new art forms — most importantly, for this article, multimedia installations. Analysis of the Copyright Act’s definition of ‘artistic work’ is applied to four contemporary and prominent multimedia installation artworks to determine whether such creations would fall within this definition. The outcome of this analysis shows that, although certain multimedia installation creations are provided protection under the current definition, there are artworks that do not satisfy the requirements under this definition. It is thus proposed in this article that certain amendments should be made to the Copyright Act that will afford such excluded artistic works copyright protection. Finally, this article conducts an analysis of the possible adverse effects that could arise should such amendments be effected to the wording of the Copyright Act in terms of the requirements of materiality and originality. Through the application of these two requirements to further examples of multimedia installation artworks, the conclusion is reached that these requirements would not render the proposed amendments superfluous or problematic.
- ItemCopyright protection of computer programs(Juta Law, 2016-01) Karjiker, SadullaThis article seeks to address a misconception concerning the scope of copyright protection of computer programs. It has been suggested that unlike the US courts, the UK and South African courts have not drawn a proper distinction between functional works — such as computer programs—and other copyright works, with the result that they are more likely to protect ideas, rather than their particular expression. While this may have been true at some stage, it is certainly not the current position in the UK. The decision of the court in Navitaire Inc v easyJet Airline Company & another, and subsequent decisions, represented a sea-change in UK copyright law relating to computer programs, resulting in comparatively thin copyright protection for computer programs, which corresponds to the legal position in the US. It was the recognition of the functional nature of computer programs that led to this change in how programs should be assessed in terms of copyright doctrine. This more limited protection is considered to strike an appropriate balance between providing the necessary incentives for the production of computer programs, while allowing for a sufficiently large public domain.
- ItemThe first-sale doctrine : parallel importation and beyond(Juta Law Publishing, 2015-08) Karjiker, SadullaIn 2013, the United States (“US”) Supreme Court gave its judgment in Kirtsaeng v John Wiley & Sons Inc, which appeared to fundamentally change the US’ position in relation to copyright law and parallel importation. The aforementioned judgment serves as an ideal opportunity to reflect on the corresponding legal position in South Africa. As will be illustrated, not only is the South African position very different from that which now exists in the US, but it is striking how different the US legal analysis is from that under South African law. This article will use the Kirtsaeng case to highlight the shortcomings in our current approach to copyright law and parallel importation, and the need to re-evaluate our legal position. Consideration of the legal position relating to parallel importation is not an esoteric, academic indulgence. The law in this area helps to determine the type of market which may exist for a particular product, and could affect consumer welfare. This article will illustrate that our approach to parallel importation is a rather narrow, literal one – based on questionable authority. It is an approach, which fails to properly consider the appropriate domain of copyright law, and fails to have regard to its purpose. What we require is a more far-reaching analysis of parallel importation, based on principles, and the effects on consumer welfare, which will provide a proper basis for future challenges that will be posed in this field by developments such as the emergence of digital copyright works.
- ItemHyperlinking and copyright(Juta, 2022-03-01) Karjiker, SadullaThis article critically considers the legality of hyperlinking to copyright-protected material on the Internet. It considers the position with respect to standard hyperlinks, and attempts to provide a possible approach in light of the proposed introduction of two new exclusive rights, namely (i) the right of communication to the public; and (ii) the making-available right. These new exclusive rights appear to be an attempt to amend the South African Copyright Act in order to give effect to the 1996 WIPO Copyright Treaty, which sought to ‘digitise’ copyright law in light of the digital technology that had developed. The WIPO Copyright Treaty supplements, in particular, the rights granted to copyright owners under the Berne Convention, extending the right of communication to the public to include the making-available right. Use will be made of the case law of the Court of Justice of the European Union, which has given effect to the right of communication to the public (including the making-available right), following its inclusion in the WIPO Copyright Treaty of 1996. Through a more focused analysis of these exclusive rights, it is intended that this article can provide some guidance to South African lawyers and our courts when considering the application and scope of these exclusive rights.
- ItemIP : politics and beyond(2017-09) Karjiker, Sadulla; van Tonder, Annette; AFRICAN SUN MeDIAINTRODUCTION: As this lecture also serves as this year’s Annual IP lecture of the Anton Mostert Chair of Intellectual Property Law (the “Chair”), I have decided to speak about an aspect of my role as the Chair — or what has occupied a significant amount of my time recently — and some of the research I am currently conducting. As the official title of my position as the Chair makes clear, I am now principally concerned with intellectual property law. This necessarily requires some sought of introduction to intellectual property law, sometimes referred to simply as “IP law.”
- ItemThe new gTLDs and the resolution of trade mark disputes(Juta Law Publishing, 2014-01) Karjiker, SadullaFollowing ICANN's decision to permit new top-level domains pursuant to its New gTLD Program, and the likely explosion in the number of top-level domains ("TLDs"), it was anticipated that there would be competing claims to register new TLDs, particular by trade mark owners. Given the success of ICANN's earlier alternative dispute resolution system - the Uniform Dispute Resolution Policy ("UDRP") - ICANN decided to again make use of an alternative dispute resolution mechanism. To this end, the New gTLD Dispute Resolution Procedure (the "Procedure") was introduced to resolve disputes relating to applications for new TLDs. There are different dispute resolution mechanisms within the Procedure for each of the four enumerated grounds of opposition, and the Legal Rights Objection ("LRO") is the dispute resolution mechanism for trade mark disputes. A number of trade mark disputes have now been determined under the LRO, which has provided some insights into how disputes are likely to be determined under it. From a trade mark perspective, there does appear to be a concern that not all trade marks are being given equal recognition. There appears to be a tendency to give greater weight to trade marks from certain jurisdictions. Hopefully, this concern is more apparent than real, because, if that is not the case, the credibility of the LRO as a dispute resolution mechanism may be undermined.
- ItemOpen-source software and the rationale for copyright protection of computer programs(Stellenbosch : Stellenbosch University, 2013-03) Karjiker, Sadulla; Dean, Owen Henry; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT: The rationale for the legal protection of copyright works is based on the perceived need to encourage the creation of works which are considered to be socially beneficial. By awarding authors proprietary rights in their creations, copyright law allows authors the ability to earn direct financial returns from their efforts, and, thus, copyright law provides the required incentives for authors to create copyright works. Since the early days of commercial software development, copyright protection has been extended to computer programs; thus, by providing such protection it was assumed that their production should be encouraged, and that without such protection they will not be produced to the extent required by society. Comparatively recently, we have witnessed large-scale production of open-source software, which is licensed on generous terms, giving users the right to freely use, modify and redistribute such software. By adopting such licensing terms, the authors of open-source software are unable to charge licensees a fee for permission to use their software, which is the reward which copyright assumes authors seek to create such software. This development has made it necessary to re-evaluate the rationale for copyright protection of computer programs, and determine whether the continued protection of computer programs is justifiable. This study seeks to first establish a coherent theoretical justification for copyright protection, which it is submitted should be an economic justification, rather than a moral justification. The legal analysis in this work seeks to establish whether the copyright protection of computer programs is consistent with the economic justification for copyright protection. In particular, the analysis focuses on the current scope of copyright protection, and seeks to establish whether such protection is excessive, stifling creativity and innovation, and, thus, imposing too high a social cost. It is contended that copyright doctrine has generally sought to minimise these costs, and that current scope of copyright protection of computer programs leaves enough creative room for the production of new software. Despite the fact that the effect of open-source software licences is that authors are unable to earn the direct financial rewards which copyright enables authors to earn as an incentive to create such software, their authors continue to have financial incentives to create such software. Commercial firms who invest in open-source software do so because they seek to provide financially-rewarding related services in respect of software, or because it serves to promote sales in their complementary products. Similarly, the participation of individual computer programmers is largely consistent with the standard economic theories relating to labour markets and the private provision of public goods. Individuals are principally motivated by economic motives, such as career concerns. Copyright protection gives participants the choice to opt for the direct financial rewards which its proprietary protection enables, or the more indirect financial rewards of open-source software development. It is submitted within this research that rather than undermining the rationale for copyright protection of computer programs, the development of open-source software has illustrated that copyright protection allows for the emergence of alternative business models, which may be more economically advantageous to authors.