Creative use of Creative Commons licenses

OpenBusiness has published a report by the Arts Council England titled “UK Artists – Their Approach To Copyright and Creative Commons” which makes for interesting reading.

The focus of the report is twofold:

  • to investigate how artists working in a digital environment view copyright, which structures many commercial relationships, but often prohibits sharing, copying and the easy adaptation of existing artistic works.
  • to examine why some artists use Creative Commons licences, which, in contrast, facilitate sharing, copying and, depending on the terms of the particular licence used, allow derivative use for commercial or non-commercial purposes.

The report suggests that one key reason for artists’ using CC is that they perceive standard copyright as too complex and costly. CC licences are an effective and practical tool for new media artists, who adapt existing work. Artists are also using CC to exploit network effects and to better market their creative work. CC is still used by an avant-garde of mainly rather young artists; more than 140,000 websites in the UK make use of such licences.

The survey points towards a possible confusion between evolving working practices that involve re-use and remix and an individual caution about their own work. In general it can be summarised that artists are in need of simpler and more appropriate guidelines, which might be provided not only by the law, but also through funding and policy bodies such as Arts Council England.

I have only had a chance to read the executive summary of the report and it is clear from the executive summary that the vast majority of artists interviewed for the report view copyright law as too complex and copyright itself as a barrier to creativity and to earning an income off their works. Their preference is to make use of Creative Commons licenses which many artists interviewed regard as “practical”.

An important consideration for these artists is that their work should be capable of being re-mixed and distributed across the Web. This is not to say that they want to see their work take out of its original context or freely adapted, necessarily, but more that they wish to see their work free to be distributed on the Web and, in the process, attract more attention to the artists themselves. As I mentioned before, Creative Commons licenses provide for greater flexibility when licensing content made available on a medium like the Web.

One interesting finding that emerged from the report is that artists are often not aware of how copyright works and that they regard copyright as being expensive and cumbersome.

On a similar note, I recently conducted an interview with Heather Ford, the Executive Director of iCommons, and she mentioned a pretty exciting project iCommons is involved in locally called ccMixter:sa:

ccMixterSA was launched on September 1, 2005 as a local version of – a music-sharing portal that is taking the world by storm. ccMixter was originally developed out of the success of the renowned Wired Magazine’s free CD project entitled “Rip.Sample.Mash.Share.” Artists like The Beastie Boys, Thievery Corporation, Zap Mama and Gilberto Gil were featured on the CD that accompanied the issue. All the tracks came with a licence that allowed owners of the CD to do more than just listen to the music. In fact, the licence encouraged a kind of interaction with the music that is illegal within the bounds of mainstream copyright law. Songs could be swapped, sampled, mashed up and shared – basically used as the fuel for the individual creative impulse of the listener, without the threat of copyright infringement.

The framework around this innovative approach to music production and dissemination is based on a set of copyright licence models developed by an organisation called Creative Commons. Creative Commons is a global non-profit organisation (with a local branch in Johannesburg) that aims to respond to the failure of traditional copyright law to adequately understand the possibilities of creativity in the digital age. Creative Commons is the brainchild of Stanford Harvard Law professor Lawrence Lessig (, and the organisation has developed a number of licence models that can be used for a range of mediums from film, text and images to music and animation.

Music on ccMixter, which includes remixes of the initial Wired CD “Fine Art of Sampling” competition, is licenced under a Creative Commons Non Commercial Sampling Plus Licence that allows two explicit permissions: 1) non-commercial file sharing and b) non-commercial sampling. This means that you can download the songs freely and legally, and that you can take pieces of the song and transform them into something new, which you can then share on the portal under your own profile. The only condition is that you don’t sell the music.

Most artists on the original Wired CD and most tracks on the international ccMixter site are covered by the more expansive Sampling Plus licence. This licence allows you to lift a snippet of an original song for use in your own composition without the commercial restrictions – which means you could use the new track in a commercial album! The only limitation: use in advertising is excluded and the new work must be very different from the original.

The ccMixter site aims to allow the open and free flow of creative ideas between musicians, producers and music lovers, where collaborations are simple and the evolution and reinterpretation of work is encouraged. The international ccMixter site, in collaboration with the renowned, recently hosted a remix competition where users of the site were given the opportunity to re-interpret and remix a choice of two tracks by the artist Lisa DeBenedictis.

The local version of ccMixter plans to do the same: with the support of YFM and the Go Open Source Campaign (Hewlett Packard, The Shuttleworth Foundation, Canonical and the Meraka Institute at the CSIR), ccMixter will encourage participants of the Mad Half Hour (Weekdays 3pm on YFM) to utilise samples and music on the ccMixter site and share their creative results with other users of the site, both in South Africa and internationally. A small and possibly lesser-known selection of South African musical samples will be basis for the remix competition and hopefully get this new and exciting music sharing platform up and running.

Contrary to certain current perceptions of music sampling and sharing, ccMixter will create a climate where this type of music sharing is well controlled and monitored and artist’s creative property well respected. It also aims to develop the creative drive and technical expertise of aspirant music producers in South Africa by encouraging an open exchange of ideas.

It is precisely this sort of initiative that helps artists find new ways to distribute their works in more creative and flexible ways and which helps to build the local industry in a very organic way.

Corporate laws go digital

Charged has an article about legislation that was tabled in Parliament recently. The Corporate Laws Amendment Bill (No. 6 of 2006) will, when passed, facilitate the digital filing of notices, corporate information and the digital certification of registration documents:

An amendment to South Africa’s corporate laws, tabled in Parliament recently, provides for the use of electronic signatures, the online registration of companies and close corporations and the electronic lodgement of corporate notices and forms.

According to technology lawyer, Reinhardt Buys of Buys Inc. Attorneys, the Corporate Laws Amendment Bill 6 of 2006 is a giant leap towards effective e-government and a true paperless regulatory environment for local businesses.

The Bill also seeks to amend both the Companies Act, 1973, and the Close Corporations Act, 1984, so as to enable electronic disclosure of corporate information, cost-effective ways of publishing notices of incorporation and electronic certification of registration documents.

This is quite exciting legislation because it could bring digital filings into the mainstream through business and, in the process, make out a strong case for digital filings in other areas to improve efficiency and reduce the costs associated with paper filings. One area which could benefit from digital filings is our court system.

(via Buys Incorporated)

Blogs to play a role in court proceedings?

According to Jim Downing of Smart Mobs, South Korean courts are considering whether the use of Web technology, like blogs, could be integrated into their processes to obviate the need for parties to appear in court:

Weblogs, or Internet diaries, are about to gain more than just curious readers. Korean courts are now experimenting whether they could operate court trials and hearings just through Internet postings, saving everybody the trouble of actually entering the courtroom,” the Korea Times reports.” The Seoul Administration Court recently designated one of its court units, which rules on labor-management relations and industrial accidents, to develop a prototype model for Internet-based trial models by the end of this month. Although the court has not yet decided on a detailed framework, it plans to allow the parties in lawsuits to submit their list of evidence,legal documents and other data on Weblogs or Internet message boards to be operated by the court. The court decisions will also be announced online. The court also plans to allow people to buy court documents and other requirements in preparing for their lawsuits through the Internet by credit card or mobile-phone payments. Korea has one of the largest Internet populations in the world, with the penetration rate reaching over 70 percent.

Now that is an interesting application of Web technology. I suppose this sort of technology could be used for court proceedings where all that is needed are filings like our application proceedings. In those proceedings the parties must file their papers and need only appear in court to address argument to the court. If there was a way to dispose of the need for oral argument through interrogatories or heads of argument then this method may work.

(via Between Lawyers)

Google didn’t infringe copyright

Google has been under fire for allegedly breaching copyright for a little while now. ZDNet has reported that one such case has been thrown out:

“In a legal win for Google, a federal judge dismissed a lawsuit filed by a writer who claimed the search giant infringed on his copyright by archiving a Usenet posting of his and providing excerpts from his Web site in search results.

The lawsuit was filed by Gordon Roy Parker, also known as Ray Gordon, who publishes his writings under the business name of Snodgrass Publishing Group. Parker, of Philadelphia, also posted a chapter of one of his e-books on the Usenet bulletin board network, a collection of thousands of discussion forums called newsgroups.

In his 2004 lawsuit against Google, Parker alleged that the search giant violated copyright law by automatically archiving a copy of his posting on Usenet and by providing excerpts from his Web site in search results.

However, the U.S. District Court for the Eastern District of Pennsylvania ruled on Friday that under case law, Google’s activities, akin to those of an Internet Service Provider, do not constitute infringement (click for PDF of court documents).

“When an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users, the necessary element of volition is missing,” the court said.

The ruling cited a January decision in the Field v. Google case in federal court in Nevada that concluded that cached versions of Web pages Google stores and offers as a part of many search results do not infringe copyright.”

This isn’t quite the end of the road for copyright litigation against Google:

“The ruling comes after a decision last month in which a federal judge in Los Angeles said that portions of Google’s image search feature, which displays thumbnail versions of images found on adult photo site Perfect 10 and others, likely violate U.S. copyright law.

The search engine also faces copyright lawsuits filed last year by authors and publishers groups over its controversial Library Project book-scanning plans, and a lawsuit filed by Agence France-Presse and threat of litigation from the World Association of Newspapers for aggregating headlines and photos without permission or compensation.

In a legal blow to Google earlier this week, a federal judge in San Jose, Calif., said he would grant federal prosecutors at least part of their request for excerpts from Google’s index of Web sites. Google is challenging a subpoena from the Department of Justice for a random sampling of Internet addresses and search queries that the DOJ says it needs to help defend a measure designed to hold Web sites liable if minors can access pornography on them.”

(via Slashdot and Inside Google)

It remains to be seen whether caching by a search engine will qualify as a copyright infringement in South African law. Section 74 of the Electronic Communications and Transactions Act (Act 25 of 2002) exempts a service provider from liability for caching in certain instances, namely:

“(1) A service provider that transmits data provided by a recipient of the service via an information system under its control is not liable for the automatic, intermediate and temporary storage of that data, where the purpose of storing such data is to make the onward transmission of the data more efficient to other recipients of the service upon their request, as long as the service provider—­

(a) does not modify the data;

(b) complies with conditions on access to the data;

(c) complies with rules regarding the updating of the data, specified in a manner widely recognised and used by industry;

(d) does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain information on the use of the data; and

(e) removes or disables access to the data it has stored upon receiving a take-down notice referred to in section 77.

(2) Notwithstanding this section, a competent court may order a service provider to terminate or prevent unlawful activity in terms of any other law.”

A similar principle may apply to Google (and other search engines) which essentially copy, index and present links to websites which often contain copyrighted materials.

Trial actions: forms of court proceedings

This is the third part of our introduction to our civil court system. These articles are intended to introduce you to some of the concepts you will encounter in our civil court system. These principles are not applicable in every case and we urge you to discuss them with your attorney in the context of your specific case.

As we mentioned in our previous post, there are two forms of proceedings in our civil courts: application (or “motion”) proceedings and action (or “trial”) proceedings. This post is concerned with the latter.

Essentially this form of proceeding is used where there is bound to be a material dispute of fact and it will be necessary to lead evidence to resolve that dispute. The form of process that initiates and embodies a claim in an action is a “summons” which is often supported by a document called “particulars of claim”. The summons is prepared by a “plaintiff” and issued by the clerk or Registrar of the Court (depending on whether you are suing out of the Magistrates Court or the High Court) and delivered to the Sheriff of the Court for formal service on the party being sued, namely the “defendant”. The summons describes the parties and outlines the claim against the defendant and sets out the details of the plaintiff’s attorneys whereas particulars of claim (or the declaration – see below) details the claim and the basic facts underlying the claim.

Once the summons has been served on the defendant, the defendant has either five or ten court days (again dependent on whether the proceedings have been instituted in the Magistrates Court or High Court) to file a notice of intention to defend the action. This notice informs the plaintiff that the defendant is defending the action and sets out the defendant’s attorneys’ contact details. As an aside, both parties must have an address for service of documents within eight kilometres of the Court so if the parties’ attorneys are outside the eight kilometre radius, they must appoint a firm of attorneys within that distance to receive documents. These latter attorneys are referred to as correspondent attorneys and are the agents of the ‘primary’ attorneys.

If the defendant does not file a notice of intention to defend either in time or at all, the defendant is in default and the plaintiff is entitled to apply for default judgment against the defendant. In practice, judgment will probably not be granted against the defendant if the defendant manages to file a notice of intention to defend before the relevant court official attends to the request or application for default judgment. Often a clerk or Registrar is charged with processing requests or applications for default judgment.

Assuming the defendant files a notice of intention to defend, the plaintiff may be entitled to apply for “summary judgment”. This is a procedure that the plaintiff may invoke where the claim is for a “liquidated amount in money”; “the delivery of specified movable property”; ejectment or is based on a “liquid document” (where the amount claimed is evident from the document itself without reference to any further evidence). The plaintiff must further establish that the defendant has filed a notice of intention to defend solely for the purpose of delaying the matter and that the defendant has no “bona fide” defence. If successful, the plaintiff may be awarded judgment at this early stage without having to proceed further with the trial.

We must pause to point out that if a plaintiff issues what is known as a “simple summons” then the procedure changes slightly (this procedure is really only used in the High Court). A simple summons is used in certain circumstances and does not enclose particulars of claim. Rather the plaintiff is required to file a “declaration” if the defendant files a notice of intention to defend in response to a simple summons. The declaration details the plaintiff’s claim in much the same way as particulars of claim.

There are two ways for the defendant to overcome an application for summary judgment: it can put up sufficient security to satisfy the amount claimed or it may file an affidavit setting out its bona fide defence. Summary judgment is not often granted as the Court will not entertain debate about the merits of the defendant’s purportedly “bona fide” defence (if an affidavit is filed) as the preferred course of action would be to have the matter properly ventilated in open court. Of course, if the defendant puts up adequate security, the Court will not grant summary judgment and will similarly order that the matter proceed to trial. This is known as the defendant being granted “leave to defend”.

The next big step is the delivery of the defendant’s “plea”. The plea is the answer to the particulars of claim (or declaration) and sets out the defendant’s defence as well as a possible counter-claim (to which the plaintiff would be afforded an opportunity to respond in the form of a “plea in reconvention”. A plaintiff may also respond to a plea that doesn’t contain a counter-claim with a “replication” where the plaintiff feels it is necessary to address allegations made in the plea.

Once the plea is filed there is usually a delay until after any further pleadings have been filed or the time period for the filing of a further pleading has ended and the pleadings are regarded as closed. At this stage a number of things begin to happen. The sequence of events often vary and the time periods become a little elastic in practice. Some of the steps you can expect are as follows:

  • the parties’ legal teams will arrange a pre-trial conference (designed to limit the issues and duration of the trial by reaching agreement on as many issues as possible and even on alternative fora for certain aspects of the dispute);
  • discovery notices will be sent out, initiating the discovery process (each party is required to disclose all documentation and information in its possession and which is relevant to the matter at hand and not privileged from disclosure);
  • witnesses and experts will be identified and consulted with;
  • a trial date will be applied for (either party may apply for a trial date and given delays of a year or more it is often a good idea to apply for a date as soon as possible);
  • requests for further particulars are normally sent out closer to trial (these notices call for more information about the plaintiff’s claim and/or the defendant’s plea/counter-claim); and/or
  • “interlocutory” applications which may include applications to compel responses to some of the above requests and notices (an interlocutory application differs from the applications discussed in our previous post in that an interlocutory application is a subset of the main action and usually deals with a procedural aspect – service and issuing of these applications are handled differently as well).

Unless the action is settled between the parties, everyone will find themselves in a court room at some point. It can take several years before this happens if trials are postponed or if the court rolls are congested (or both). The usual procedure at a trial is as follows:

  • lawyers for both sides will have an opportunity to make opening statements to the court (starting with the plaintiff’s lawyer);
  • the plaintiff’s lawyer will lead the plaintiff’s evidence by calling witnesses;
  • the defendant’s lawyer gets to cross-examine the plaintiff’s witnesses;
  • the plaintiff’s lawyer has an opportunity to revisit the plaintiff’s witnesses’ evidence and deal with issues that the defendant’s lawyer highlighted during cross-examination;
  • the process repeats with the defendant’s lawyer leading the defendant’s witnesses’ evidence; the plaintiff’s lawyer cross-examines and the defendant’s lawyer revisits the defendant’s witnesses’ evidence;
  • the Magistrate or judge may ask questions along the way;
  • once all evidence has been led, each side’s lawyers will present legal argument and closing arguments;
  • the Magistrate or judge will consider the evidence led and arguments made and hand down judgment (often some time after the actual hearing).

One of the disadvantages of the trial procedure is that it can take quite a long time to achieve some kind of resolution of the dispute mainly because there seem to be severe delays in being allocated trial dates in many of our courts, particularly the High Courts. These delays tend to frustrate litigants and understandably so. On the other hand, where there has been an injustice or a party has suffered a loss as a result of the wrongful conduct of the other, this may be the only procedure available to address this.

Legal costs in the South African legal system

This is the second part of our introduction to our civil court system. These articles are intended to introduce you to some of the concepts you will encounter in our civil court system. These principles are not applicable in every case and we urge you to discuss them with your attorney in the context of your specific case.

One of the more significant consequences of approaching a Magistrates Court as opposed to a High Court is your legal costs. Both courts apply a tariff of court fees with different scales. Perhaps the easiest way to understand these tariffs is in relation to medical aid rates. If you belong to a medical aid you will know that when you visit a doctor your medical aid will pay only a portion of the doctor’s actual fee (unless you have a doctor who charges medical aid rates). You then have to foot the bill for the balance. Our court tariffs work in a similar way. If you are awarded legal costs in a court case (costs usually follow the result so if you win, you are awarded legal costs), your costs have to be “taxed” before you can recover from your opponent. This means that an officer of the court called a “taxing master” will compare your actual legal costs to tariff and either allow or disallow certain amounts that you wish to recover. Your costs will be set out in a document called a “bill of costs”.

As an example, the tariff in the High Court sets a rate of R125 per quarter hour for an attorney to attend a consultation. This works out to R500 per hour. You will often find that your attorney charges you more than R500 per hour for his/her attendances and the difference between the tariff rate of R500 per hour and what your attorney charges you is called the “attorney-client” differential. This differential is analogous to the difference between medical aid rates and private rates your doctor may charge you. You can only recover the amount the taxing master allows you to recover based on the tariff. This figure is known as your “taxed costs”.

It does get a little more complicated as there are different scales of legal costs. The figures mentioned above form part of the “party and party” scale (the most common scale). Other scales allow you to recover more of your costs and include “attorney and client” costs (you may have seen references to this scale of costs on credit agreements you may have signed) but these scales have to either have been specifically agreed to by the parties or specially ordered by the court.

The tariff in the Magistrates Court is lower than in the High Court so if your attorney is charging you the same hourly rate for work in the Magistrates Court as he/she charges in the High Court, you are actually entitled to recover less of your actual costs in the Magistrates Court, relatively speaking.

An introduction to our courts and court procedure

While most people have a vague idea about our court structure, I suspect not many people know enough to make informed decisions about the forum they litigate in and more or less what to expect. This tends to unnecessarily mystify the litigation process and scare people away from our court system. I’d like to shed some light on our civil court system and give you, my visitors, a basic knowledge of our civil procedure over the course of a few articles on this website.

I must just caution you that these articles are intended to give you a basic idea what to expect from our civil court system. It is mostly theoretical and practical experience of our court system may be fairly different. Although our court system is governed largely by rules, the system is fairly fluid and flexible. It has to be, for many reasons. That fluidity and flexibility can give rise to quite a bit of frustration when used to thwart a litigant but this is really just the way the system works.

The starting point is really a basic introduction to our civil court structure. When I refer to our “civil” court structure I am referring to the court structure that we use in private or civil litigation. For the most part this type of litigation involves disputes over contracts or instances where one party causes the other to suffer some form of loss (usually financial). These disputes are usually between two private parties (as opposed to criminal matters where the State prosecutes a private party).

There are two main court structures in South Africa. There are the so-called “lower” courts and there are “superior” courts. The lower courts generally comprise Magistrates Courts which are presided over by judicial officers called Magistrates (there are also courts called Small Claims Courts which I will deal with in a separate article). The superior courts comprise the various divisions of the High Court, the Supreme Court of Appeal and the Constitutional Court. Superior courts are presided over by judges. Our court structures and the composition of those courts is largely set out in Chapter 8 of the Constitution of the Republic of South Africa, 1996.

The two courts you would usually institute proceedings in would, save for certain special types of cases, usually be either the Magistrates Court or the High Court. The considerations which generally determine which court you approach first are detailed in the Magistrates Court Act and the Magistrates Court Rules of Court (a set of rules that govern the court proceedings in the Magistrates Court). Generally speaking, you can launch the following proceedings in a Magistrates Court (this is not intended to be an all-inclusive list and may not be applicable in certain instances):

  • actions in which you would claim delivery or transfer of either movable or immovable (for example, land) property;
  • actions to eject the occupier of a premises;
  • actions to determine a right of way;
  • actions arising out of a “liquid document” (where the amount claimed appears clearly from the document itself) or mortgage bond;
  • actions arising out of a credit agreement;
  • applications for the liquidation of a close corporation; and
  • general actions claiming compensation.

Except for where there are certain consents to the contrary, proceedings in the Magistrates Court are limited to matters where the value of the proceedings is less than R100 000.

As a litigant, you are always free to approach a High Court directly. Judges discourage litigants skipping Magistrates Courts by only allowing costs on the Magistrates Court scale (more on that later) as this could flood the High Courts. While the Magistrates Court is a “creature of statute” and its processes are governed by the Magistrates Court Act and its Rules of Court (not to mention other legislation), the High Court has what we call “inherent” jurisdiction to hear whatever matter it wishes to hear barring those matters which it is not permitted to entertain (certain types of constitutional matters are reserved for the Constitutional Court). You can launch virtually any form of proceeding in the High Court and the judge (or judges) have the ability to at least consider whether to hear the matter).

Magistrates Court and High Court are also referred to as courts of first instance because you can launch completely new proceedings in these courts. This is in contrast to the Supreme Court of Appeal and the Constitutional Court which are mostly courts of appeal. These two courts of appeal mostly hear appeals from the High Court where a judgment has already been handed down in a matter. As an aside, there are instances where the Constitutional Court can be approached directly but these instances are few.

Supreme Court of Appeal

We have a number of different courts in our court structure. The highest court in South Africa for all matters except for constitutional matters is the Supreme Court of Appeal. Here is some information about this court from its website:

All constitutional matters are dealt with by the Constitutional Court, the highest court in the land, which is situated in Johannesburg.

The Supreme Court of Appeal of South Africa, the successor of the Appellate Division of the Supreme Courts of South Africa was created by the Constitution of 1996. According to the Constitution –

  • it functions only as a court of appeal
  • it may decide any matter on appeal and,
  • it is except for constitutional matters, the highest court of appeal

It is composed of the President and Deputy President of the Supreme Court of Appeal and a number of judges of appeal determined by an Act of Parliament. The Supreme Court of Appeal has jurisdiction to hear and determine an appeal against any decision of a High Court.

Decisions of the Supreme Court of Appeal are binding on all courts of a lower order, and the decisions of the High Courts are binding on Magistrates’ Courts within the respective areas of jurisdiction of the divisions.

Whereas previously the head of the Appellate Division was the chief justice, this is no longer the case. The Chief Justice of South Africa is now located in the Constitutional Court.

The seat of the Supreme Court of Appeal is at Bloemfontein. Provision exists for a session of the court at some other place when by reason of exceptional circumstances it is expedient to hold its sitting there. Its process runs throughout the Republic and its judgments and orders have effect and are executed in the areas of other divisions as if they were original judgments or orders of these divisions.

The Court sits in panels of five or three Judges, depending on the nature of the appeal. The composition of the panels differ for each case. The senior judge on each panel presides in that case and decides which judge is to write the judgment (or opinion) of the court. There may be more than one judgment in each case if there is a difference of opinion. The decision of the majority is the decision of the Court. Judges and counsel are robed in court.

If you are interested in some of the other courts in our court system, here are some informative links: