Paul Jacobson

I am currently doing some research for a project I am working on and I tried my hand at creating a Google custom search engine that references the resources I was accessing individually. The result is pretty cool.

(there should be a gadget above this line … it didn’t show when I published this post, hopefully it will be visible by the time you see this)

If you are a lawyer or law student or know of really good South African legal resources, let me know and I’ll add the site to the search engine.

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google, search, custom search, legal research resources, legal research

Ramble on

A complete treatment of this topic would probably take up a number of hefty volumes so this chapter is not intended to cover all aspects of doing business in South Africa. There are many brilliant, knowledgeable and expert writers and professionals in South Africa who could speak far more authoritatively on the range of topics that fall under the general header of “SA Inc and the business of doing business in South Africa”.

Instead I am going to mention two topics which I am both passionate about, regard as two very hot topics in the near future and which are, themselves, are subjects of entire books and which SA Business should bear in mind when doing business in South Africa: privacy and content licensing. These topics are going to be of interest for those businesses which are interested in or involved in the growing social media space.

While content licensing and privacy are the topics that tend to attract the most attention when I chat to business people about them, freedom of expression and unlawful competition are two topics I won’t deal with in this chapter due to space considerations in the context of this blook as a whole but which are arguably equally important. Which topics are more relevant and therefore important to you may be a matter of perspective depending on what your focus may be at a given point in time.

Privacy

Privacy has always been an issue business has had to tackle although not terribly vigorously. Privacy issues in the workplace have often included personal communications and personal relationships in the workplace and have been dealt with through internal policies on issues ranging from the acceptable use of the organisation’s IT infrastructure to policies that deal with the prickly topic of sexual harassment.

The need to give substance to the right to privacy in the Bill of Rights and the increasing amount of personal information that is becoming available both online and offline in all spheres (and the growing need to safeguard that potentially sensitive information) have given rise to draft legislation presently doing the rounds in our legislature.

This is not a new process and in many ways the draft legislation mirrors developments abroad, including in the European Union. Without going into the legislation in much detail (yet another volume in itself), it defines personal information and through a series of voluntary and mandatory mechanisms it seeks to strike a balance between the need to safeguard personal information when processed by public (for example, government bodies) and private (for example, businesses) bodies, the need to protect and give substance to the right to privacy and the desire to facilitate the appropriate flow of personal information.

I use an extract from the draft legislation in a presentation I give on these topics and in which I highlight some of the examples of personal information. Although few people can actually read the extract in the slide because the font is so small, the highlights demonstrate the fairly broad scope of the definition and highlight the need to take a more active interest in how this draft legislation may impact on South African businesses.

An unfortunate consequence of a growing complexity of issues pertinent to business is that it is necessary to introduce a range of measures to reduce and manage the risks that accompany this growing complexity. One of these measures, at least in this context, is a clear privacy policy that informs both internal stakeholders and customers what personal information the company is collecting and how that personal information is being used. These uses are guided by the draft legislation and it is vital that this information be communicated to these people.

The draft legislation also envisages imposing a series of obligations on businesses to secure their stores of personal information and to retain that personal information subject to specified guidelines. Add a range of exemptions and prohibitions to the mix and businesses are facing a far more complex privacy landscape which needs to be navigated with considerable care.

Bottom line: things are about to become really interesting in this space.

Content licensing

For the most part Business SA either doesn’t think too much about copyright or views it as a shield to protect it from the horrors that ravage the intellectual property countryside that include plagiarists and unimaginative bloggers who are too loose with the “Copy” and “Paste” commands.

Copyright certainly has a valuable place in that intellectual property countryside. One of its most important functions is to protect original content and, in the process, it encourages content creators to develop more original content. The difficulty with copyright is that, as a bundle of exclusive rights, it does not always fit in well with the growing social media trend (if you can call it that) and with consumers’ desires and habits.

One question I often ask people is how many of them tend to download or copy interesting content they see on the Web without thinking too much about little things like who owns the copyright in that content and whether consuming that content in that way is consistent with the copyright owner’s intentions and rights. At the risk of oversimplifying the issues, people want to go online and freely share what they find with their friends, family and colleagues. This act of sharing often takes the form of copied text and images being distributed by email, printed out and passed around or even incorporated into blogs and other online social media platforms.

The problem with this tendency, of course, is that many of these uses are forms of copyright infringement and while there are a number of exceptions to general copyright infringement the exceptions themselves are sometimes not terribly clear or helpful.

There is an alternative to simply relying on the protections afforded by copyright and its exceptions to copyright infringement. If your goal, as a content creator, is to ensure that your content is made available to the biggest audience possible within certain parameters which may protect your business model, the integrity of your content or ensure that any sharing perpetuates your open access ambitions then you will be thinking about some form of license for your content. The immediate challenge is how to properly license your content and make sure that the considerations that need to be addressed are, in fact addressed.

One option is to go to an attorney have have a custom made license prepared. A license will grant its user certain rights in the content concerned which, in turn, will enable the user to make use of the content in a way that would ordinarily be prohibited. This has its advantages because you will have a license that does exactly what you want it to do (that is, permit certain uses and prohibit others). The disadvantages include the costs involved and the possible inability to understand the terms of the license unless you have degrees in Latin and advanced legalese.

The second option will be far more appealing to many content creators. Creative Commons licenses are ready made content licences that permit a range of uses of content depending on the license adopted (there are six core licenses). These licenses are customisable to a degree in that you can choose which elements to include in your license to supplement elements that are built into every Creative Commons license, such as the ability to share the content privately, the requirement that authors of the content concerned be attributed properly and the perpetual term of the licenses. The rights granted by a Creative Commons license may include the ability to create a derivative work of the content (something like a remix of a song, perhaps?), the right to exploit a work commercially or perhaps the requirement that adaptations of the content be distributed under a similar Creative Commons license.

One thing for SA Business to bear in mind, especially in the push to integrate social media into an online presence, is that Creative Commons licenses can be powerful tools which can be used to help spread content as widely as possible. This makes a lot of sense where a business has a blog or otherwise publishes its content on the Web with the intention that it reach as many people as possible. Additional protocols like the recently introduced CC+ protocol enable businesses to integrate their commercial licenses into a non-commercial Cretive Commons license. One benefit of this is to present a licensed version of the content that can be freely shared while preserving a commercial model. A good example of a service that uses a similar model is the popular tutorial service, Common Craft.

What I constantly find remarkable about these legal constructs is the very real impact they can have on creative expression. Although copyright was originally intended to protect and promote creative expression, it has become almost synonymous with protectionism and restrictions on content usage. It is unfortunate but it has paved the way for tools like Creative Commons licenses and similar free content licenses to free content creators to express themselves more freely secure in the knowledge that they have struck a balance between sharing and spreading their ideas and passions and, at the same time, ensuring that their content is used in a way that best achieves that expression. Just what form that expression takes and how it manifests will vary from one content creator to another, whether that content creator be an artist, a writer or Chief Executive blogging about his hopes and dreams for his company.

Levelling off

Without a doubt privacy and content licensing are critical issues that SA Business needs to pay careful attention to, especially as more and more local businesses provide services and publish content online. Two topics I wasn’t able to deal with in this chapter introduce further dimensions of complexity and perhaps greater challenges for many businesses: freedom of expression and unlawful competition. These seemingly unrelated topics come together in a very interesting and yet somewhat disturbing way for many businesses in the context of social media in particular and also merit very careful consideration.

One message I try to communicate whenever I speak about these topics is that as much as they may complicate an already confusing landscape, the risks they represent can (and should) be managed and, in the process, reduced. Doing so requires a little research and planning but the benefits of these foundational steps will soon become apparent in a variety of ways, all of which add to the tremendous promise and potential of doing business in South Africa.

Now read the rest of the blook chapters:

Introduction
1. The new South Africa – is it real?
2. Is SA rich or poor?
3. What the world thinks of South Africa and what our global opportunities are
4. The importance of each individual’s contribution collectively
5. SA Inc and the business of doing business in SA
6. The beauty and grandeur that surrounds us
7. The importance of technology in SA’s global emergence
8. Building brand South Africa
9. Making the most of SA’s creative talents and abilities
10. Innovate for a better South Africa
11. The role of the younger generation in SA, and what we need to do to support them
12. Connecting South Africa – Communities that transcend technology
13. We are African – the role of collaboration in South Africa’s growth

Chapter 5, SA Inc and the business of doing business in SA by Paul Jacobson is licensed under a Creative Commons Attribution-Non-Commercial-No Derivative Works 2.5 South Africa License.
Based on a work at pauljacobson.org.

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content licensing, copyright, creative commons, south africa, blook, sa blook, opportunities, privacy, legislation, sa business

I am going to buy my wife her first Mac this next month and we pretty much settled on the mid-range white MacBook. It goes for about R13 000 which I am ok with. I got myself a black MacBook in October last year and the new, white MacBook is more powerful and will more than cater for her needs.

I have been thinking about a different arrangement too, though. I am running out of HDD space (my 160GB drive is just about full) and the new black MacBook comes with a 250GB HDD so I am considering buying myself a new black MacBook (around R15 000) and giving her my current one so I won’t need to spend around R2 000 to upgrade my current MacBook’s drive (that is roughly the cost of a new drive and labour to install it and move all my stuff across – I won’t even think about attempting that myself). Is it a cheek to give my wife my hand-me-down Macbook?

Speaking of new Macs, man that new iMac is gorgeous and powerful!

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macbook

The Department of Public Service and Administration has set out the requirements for what it considers to be an open standard for implementation in government departments. The document it published is called the Mininimum Interoperability Standards for Information Systems in government (MIOS) and it sets out a series of standards which government departments are required to adhere to:

Improved public service delivery tailored to citizen and business needs, as envisioned in the e-Government Strategic Framework: Accelerating Service Delivery 2014, published in 2007, requires the seamless flow of information across all tiers of Government. The Minimum Information Interoperability Standards (MIOS) sets out the Government’s technical principles and standards for achieving interoperability and information systems coherence across the public sector. The MIOS defines the essential pre-requisite for joined-up and web enabled Government. Next to security, it is an essential component in the overall e-Government strategy.

Adherence to the MIOS standards and policies is mandatory as set out in the proposed chapter five of the Public Service Regulations. They set the underlying infrastructure, freeing up public sector organizations so they can concentrate on serving the customer through building value added information and services. It is the responsibility of individual departments to improve their business processes so that they are more effective, and to take advantage of the opportunities provided by increased interoperability.

The main thrust of the framework (in line with international best practice), is the adoption of a structured approach with regard to information systems. To achieve this approach, and to ensure the enhancement of interoperability across Government, a minimum set of standards are included in this document as a required Government-wide standard. To this end, this updated version of MIOS contains an explicit definition of Open Standards as well as the inclusion of the ISO (International Standards Organisation) Open Document Format.

The objective of achieving interoperability must be managed as a long-term ongoing initiative. In this regard the Government Information Technology Officers Council, (GITOC) which consists of representatives from all Government Departments including provincial and local Government, are crucial and instrumental in carrying this objective forwards and through to implementation.

It is also essential to ensure that MIOS remains up to date and aligned to stakeholder requirements, so that it can embrace the potential of new technology as well as market developments. In this instance, collaboration becomes a critical success factor for the formulation of strategic synergies.

What this all comes down to is that the government is phasing in technologies that support open standards which is, in turn, the cornerstone of this policy framework:

2.3 Open Standards

2.3.1 There are number of definitions of open standards which emphasise different aspects of openness, including of the resulting specification, the openness of the drafting process, and the ownership of rights in the standard. The list below contains frequently cited indicators of the openness of a standard. For the purposes of the MIOS, a standard shall be considered open if it meets all of these criteria. There are standards which we are obliged to adopt for pragmatic reasons which do not necessarily fully conform to being open in all respects. In such cases, where an open standard does not yet exist, the degree of openness will be taken into account when selecting an appropriate standard:

• it should be maintained by a non-commercial organization
• participation in the ongoing development work is based on decision-making processes that are open to all interested parties.
• open access: all may access committee documents, drafts and completed standards free of cost or for a negligible fee.
• It must be possible for everyone to copy, distribute and use the standard free of cost.
• The intellectual rights required to implement the standard (e.g. essential patent claims) are irrevocably available, without any royalties attached.
• There are no reservations regarding reuse of the standard.
• There are multiple implementations of the standard

While this document may not explicitly say so, it pretty much excludes Microsoft’s Office Open XML as a candidate for acceptance in terms of this framework barring some fundamental changes to the OOXML specification and how it is maintained and developed. This decision is fantastic news for open access advocates and even better news for South Africans who don’t have access to expensive, proprietary software.

For more on this, take a look at this article on Tectonic.

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open access, open standards, mios, government, policy, odf, open document format

The amendment to the Film and Publications Act may have been written with good intentions but the amendment was drafted in ignorance of the current state of new media on the Web and this could stifle the nascent new media industry in this country and frustrate access to international services on the Web.The object of the amendment is the following:

The Amendment Bill seeks to ensure that all publications, films and interactive computer games distributed in the Republic, regardless of the medium or format of such distribution, would be subject to the same principles and guidelines to serve the core objective of protecting children from potentially disturbing, harmful and age-inappropriate materials in publications, films, interactive computer games, mobile cellular telephones and on the Internet since child pornography exists wherever there is a computer, a modem for access to the Internet and a mobile cellular telephone. The Amendment Bill further seeks to bring broadcasters of films within the scope of the Act.The Amendment Bill also seeks to provide for the appointment of compliance officers to monitor compliance with the provisions of the Act. The Bill authorises compliance officers to enter any premises for purposes of requesting the production of a certificate of registration as a distributor or exhibitor of films or interactive computer games,examining or inspecting any premises used for conducting a business of adult premises for compliance with the conditions laid down in the Act or examining or inspecting any films or interactive computer games offered for sale or hire for compliance with the requirements of the Act. Compliance officers are further empowered to order the removal of films, interactive computer games and publications that do not comply with the requirements of the Act or a decision of the Board until such time that such product complies with the requirements of the Act or decision of the Board with regard to distribution.

Protecting children from inappropriate content is important and the government should take steps to protect them. The problem is more the unintended consequences of poorly researched and drafted legislation. The amendment applies to content that is distributed or exhibited in South Africa. This means the amended Act will apply to content not just distributed in South Africa by local companies but will extend to content that is made available to South Africans on the Web. This would include video sharing sites like YouTube and Revver, blogs and more. When you look at the definitions of “publication” and “film” in the original Act you can start to see that the Act seeks to regulate content available on the Web itself.The Act will probably affect online video sharing sites more as the amendment imposes an obligation on anyone who distributes or exhibits “films” in South Africa to register as a distributor and to submit all films for examination and classification after payment of a prescribed fee which is around R1 500, according to ICT lawyer Mike Silber in an ITWeb article about the amendment. This means that local video sharing sites like Zoopy, TWAC and MyVideo must now submit the videos they make available on their sites for examination and must pay a fee that could put them out of business. It goes beyond the obvious video sharing sites and also extends to other services that exhibit videos like The Times which recently launched its multimedia portal and even bloggers who post videos on their sites. The amendment also extends to games and provides for the following:

if it is a film or interactive computer game approved for sale or hire, display the following certificate conspicuously and clearly visible on or through the cover or packaging of the cassette or holder of the film or interactive computer game (my emphasis)

The language of the legislation clearly indicates that it was not thought through or drafted by anyone who is conscious of the existence of the Web today. I also wonder about the implications for our freedom of expression protected by the Bill of Rights. While the rights we enjoy are not absolute and may be limited by laws of general application like the Film and Publications Act, such a limitation must be reasonable and justifiable in an “open and democratic society based on human dignity, equality and freedom”.The scope of the amended Act goes too far and could have the chilling effect of crushing the nascent new media industry in South Africa and severely limiting access to similar services on the Web (if the Act is going to be vigorously enforced, that is). What is needed is a challenge to the legislation in court, especially considering that Parliament apparently ignored representations made to it about the inappropriate provisions in the amendment.We are in for a pretty interesting ride as this amendment is promulgated and enforced by the Film and Publications Board which may become a more restrictive censorship body than the Apartheid government managed to create, despite the Minister’s assertion that it will never happen again.Technorati Tags:film and publications, act, amendment, legislation, content sharing, video sharing, draconian, misguided, scope, censorship, freedom of expresion

US Attorney General Alberto Goncalves has presented the US Congress with a new bill called the Intellectual Property Protection Act of 1997 which would punish attempted copyright infringement in addition to imposing harsher penalties for other infractions of US copyright law. The proposed legislation will have the following effects:

• Criminalize “attempting” to infringe copyright.
• Create a new crime of life imprisonment for using pirated software.
• Permit more wiretaps for piracy investigations.
• Allow computers to be seized more readily.
• Increase penalties for violating the Digital Millennium Copyright Act’s anticircumvention regulations.
• Add penalties for “intended” copyright crimes.

In case you were wondering who was behind this latest set of draconian measures that are really intended to tighten the screws on the American consumer, the bill also includes a requirement that the Department of Homeland Security (the organisation formed in the aftermath of 9/11 to safeguard the United States against terrorists) to alert the Recording Industry Association of America, the reviled representative body of the American recoding industry, when anyone attempts to import “unauthorized fixations of the sounds, or sounds and images, of a live musical performance”. To put this in perspective, no other industry association has the Department of Homeland Affairs at its disposal quite like this …

(Source: Tech news blog)

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intellectual property protection act, attorney general, the congress, attempted copyright infringement, copyright infringement, riaa

This story in Sunday Times raises some interesting issues. On the one hand black lawyers (and advocates in particular) have not had such an easy time even in the new South Africa. Advocates work on a referral basis so it is not easy for new advocates and unknowns to break into the profession and develop enough of a following to build a sustainable business and on the other hand I have heard talk about black advocates who are really just sitting back and waiting for the extra work to roll in and the subsidies some of them receive to be paid over.

The Legal Services Charter is intended to force change in the attorneys profession, which is not exactly thrilled about change generally speaking and I support that initiative. If the profession is not going to change then it must be changed. The alternative is a legal profession which has lost touch with modern South Africa and that is not always a good thing. On the other hand, some things can’t be changed by this sort of regulation. Some changes need to be addressed at a more personal level. The Charter in its present form will require law firms to give 40% of their work to black advocates by the end of the year and 60% of their work to black advocates next year. Considering that there are around 2 000 advocates in South Africa, of which a small percentage is black, I wonder how effective these requirements will be. For one thing, a small percentage of 2 000 advocates getting 60% of the legal work going around could well lead to a totally overwhelmed group of black advocates, even assuming they all put their heads down and get stuck into their work. I also wonder how black lawyers really feel about having all this work just given to them without regard for their competence. I am just thinking about a conversation I had with a colleague a while ago about no regard being given to his abilities as a lawyer and people being fixated on his race. It doesn’t do these lawyers any favours if you don’t recognise their talent in my opinion. Sure, give them work as a black economic empowerment initiative but recognise their ability to do that work.

The Charter doesn’t seem to have addressed another big issue and that is that the government itself isn’t playing the game by giving work to black firms. If they did that, the work would filter to black advocates organically. I suspect the government tends to give their work to the larger firms which may have black executives but are hardly black firms. I remember this issue of briefing black advocates being brought up a couple times when I was at my last firm and that must have been a good 2 to 3 years ago and I don’t know that much has changed in the profession as a whole since then. When the chips are down, attorneys tend to brief the advocates they know and those tend to be the same white advocates who have been getting work for a little while now. Then again, I could be wrong. I haven’t been in a corporate legal environment for a year and a half or so.

If the Charter is going to work, its targets really need to be realistic and the government needs to come to the party and put its money where its mouth is. Otherwise we are going to wind up with a clogged machine (well, more clogged than it already is) that just won’t work.

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legal services charter, black advocates, black lawyers, charter, black economic empowerment, legal profession