The Creative Industry and South African Intellectual Property Law

This paper seeks to provide a more nuanced view of the creative industry that goes beyond assertions of its contribution to economic growth, which, it is then further argued, requires stringent copyright protection to ensure development. It argues that a critical first step is to optimize an existing copyright framework by addressing its inherent entrepreneurial challenges to better enable authors to garner economic returns. These challenges are identified before the paper delineates the creative industries in South Africa and related policies. It then turns to the ongoing copyright policy formulation process before setting out current and proposed copyright legislative provisions. The paper contends that essential aspects regarding both the creative and commercial aspects must be tackled first. At the creative stage, authors’ inability to use a large range of source works because of the fear of copyright infringement claims can be addressed by elaborating exceptions and limitations. On the commercial front, entrepreneurial capacity building for authors and curbing unfair author, publisher and intermediary contracts is vital. The use of statutory devices such as the reversionary interest, to recover lost or diminished opportunities to obtain direct financial gain from copyright work, could also be considered. Enhancing the viability of collecting societies and ensuring that royalties are paid to authors would also be a critical intervention.