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- Volume 38, Issue 3, 2006
Comparative and International Law Journal of Southern Africa - Volume 38, Issue 3, 2006
Volumes & issues
Volume 38, Issue 3, 2006
Author Gerhard Van der SchyffSource: Comparative and International Law Journal of Southern Africa 38 (2006)More Less
The aim of the contribution is to explain the function that the concept of democracy fulfils within the scheme of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. Democracy is an important concept to clarify, otherwise the convention cannot be fully understood or meaningfully applied. The explanation of the concept of democracy is attempted by developing a distinction between what is termed a 'democratic state' and a 'democratic society'. The implications of such a state and society are then characterised more closely.
Author Coenraad VisserSource: Comparative and International Law Journal of Southern Africa 38, pp 321 –343 (2006)More Less
Copyright systems traditionally adopt one of two approaches to locating the parody defence - either by creating a special exception from copyright infringement, or by treating it as part of a general exception from copyright infringement, such as fair use or fair dealing. This article examines the position in the United States of America, some European countries, the United Kingdom, and South Africa, with reference not only to copyright law but also to the constitutional protection of freedom of expression. The author concludes that an express parody exception should be enacted in South African copyright law. Such an exception should be in line with the three-step test in the Agreement on Trade-Related Aspects of lntellectual Property Rights. It should apply to an uthor's 'exclusive; (economic) rights only, as the narrow scope of the protection of an author's moral rights in South African law effectively remove these rights from the parody context.
Author M. JansenSource: Comparative and International Law Journal of Southern Africa 38, pp 344 –353 (2006)More Less
Digitisation lead to wide-spread, cross-border and virtually uncontrollable copyright infringement because of the simplicity of digital reproduction, the ease and speed of digital transmission and the ease of digital manipulation. Authors protect their digital works against copyright infringement through contractual conditions and technological protections. Technological protection measures are vulnerable to hacking (circumvention). The international community accordingly concluded the WIPO Copyright Treaty (the 'WCT') in 1996 . Article 11 requires of its member states that they should adopt legislation that would provide adequate legal protection against the circumvention of technological protection measures. The provisions of Article 11 have been implemented into national legislation by member states. Only two pieces of implementing legislation will be discussed: the Digital Millennium Copyright Act of 1998 (DMCA) which implemented Article 11 in US copyright law and the EC Directive on the harmonisation of certain aspects of copyright and related rights in the information society which implemented it into EC legislation (Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001) The provisions in the DMCA create a new form of liability, separate and distinct from copyright infringement. By prohibiting the devices necessary to circumvent protection measures for non-infringing purposes, it will be impossible to perform non-infringing acts. Although the EC Directive does not prohibit the devices necessary to circumvent for legitimate purposes, it does not really make provision for exceptions to the prohibition on circumvention since only one of the exceptions listed in the Directive is mandatory. Copyright works on the internet enjoy a three layered protection: the work is protected by law of copyright, then by the technological protection measures applied by the author, and the protection measure itself is once again protected by law (by the prohibition on Circumvention). The manner in which the prohibition on circumvention has been implemented in national legislation, threatens legitimate uses.
Source: Comparative and International Law Journal of Southern Africa 38, pp 373 –395 (2006)More Less
Owing to the complexities involved, there is often a need for formal cooperation between different jurisdictions, and practical legal rules to govern matters flowing from cross-border insolvencies. This article will examine the nature of the legal rules applicable to cross-border insolvencies against the backdrop of South African rules and norms in this regard, and specifically look into the role international law may play in the development of local legal principles regulating insolvencies with an international character.
Author Paul ArnellSource: Comparative and International Law Journal of Southern Africa 38, pp 396 –414 (2006)More Less
Law can act to deter and redress conditions giving rise to features of poverty. The territorial nature of law however, limits the efficacy of law to states where governments are inclined and able to act. One method of addressing this problem is through the extraterritorial application of law. This article analyses the phenomenon of the application of law across borders and measures its ability to affect poverty reduction.
Insolvency enquiries and the right against self-incrimination: divergent approaches in South Africa and other jurisdictionsAuthor Lee SteynSource: Comparative and International Law Journal of Southern Africa 38, pp 415 –434 (2006)More Less
In South Africa, the recognition, in the Bill of Rights, of the right to remain silent and the right against self-incrimination, gave rise to challenges to the validity of statutory provisions which regulate insolvency enquiries. The Constitutional Court confirmed the validity of sections 64, 65 and 66 of the Insolvency Act, but declared invalid certain portions of sections 415 and 417 of the Companies Act on the basis of their infringement of the right against self-incrimination. Subsequent legislative amendments appear to favour an examinee's right against self-incrimination to an extent which goes beyond what the Constitutional Court required for the legislation to be valid. Striking parallels may be drawn between developments in the United Kingdom, since the coming into force of the Human Rights Act 1998, and the European Convention on Human Rights having become applicable. However, there is a marked difference in approach on the question whether the right against self-incrimination requires derivative use, as well as direct use, immunity to be extended to an examinee in insolvency enquiries. Apparent inconsistencies have also emerged in the approach of the European Court. It is hoped that, before long, the issue will be resolved in the European Court in such a way as to provide guidance to South African legislators.
Author Roshana KelbrickSource: Comparative and International Law Journal of Southern Africa 38, pp 435 –452 (2006)More Less
The 1993 South African Trade Marks Act uses the term 'well-known' in two different contexts. It is used to descriptionbe a trade mark that is so well-known that it is granted protection even in jurisdictions where it is not registered, so-called Paris Convention protection. But it is also used to descriptionbe a trade mark that is sufficiently known to be granted protection against dilution, that is protection against use that might tarnish or otherwise affect the repute of the mark. In other countries, the term 'well-known' is reserved for marks that enjoy Paris Convention protection. Different terminology is used to descriptionbe the degree of public awareness that a mark must enjoy before it qualifies for protection against dilution. The term used in America is 'famous'; the term used in the European Union is 'reputation'. The criteria that determine whether a mark should enjoy Paris Convention protection as well-known, and whether a mark should be protected against dilution, are different, and it is suggested that the South African Act should be amended, in line with other jurisdictions, to reflect these two different concepts.
The right to counsel at trail for a defendant in the criminal justice system of the United States of America, including the right to effective assistance of counselAuthor P.M. BekkerSource: Comparative and International Law Journal of Southern Africa 38, pp 453 –473 (2006)More Less
The right to counsel developed much later than many of the other fundamental rights, such as the right to a jury trial. But the right to counsel came to be seen as an important bulwark against tyranny. The Declaration of Independence specifically complained of the denial of counsel, and twelve of the original thirteen states guaranteed a right to counsel in their constitutions. The right was included in the Sixth Amendment which dictates that the right attaches at the beginning of the criminal prosecution and guarantees counsel at any criminal trial which results in deprivation of liberty. The constitutional right of an indigent defendant to the assistance of court-appointed counsel was recognised by the Supreme Court in Powell v Alabama, and in Gideon v Wainwright it was decided that all indigent felony defendants have the right to appointed counsel in state and federal prosecutions. The Sixth Amendment would be nullified if it did not ensure some level of quality of counsel. Therefore, the right to counsel has been interpreted to stand for the effective assistance of counsel. The defendant must affirmatively prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.
Author Lilian ChenwiSource: Comparative and International Law Journal of Southern Africa 38, pp 474 –491 (2006)More Less
For the first time in the agenda of the African Commission on Human and Peoples' Rights, during the 36th Ordinary Session (2004), the death penalty was one of the issues discussed. Commissioner Chirwa initiated debate on the death penalty in Africa, urging the commission to take a clear position on the subject. She recommended that in view of the international and human rights developments and trends, it is necessary for the continent to initiate constructive debate on the question of the death penalty in Africa. It is against this background that this article is written, with the aim of showing that there is a need for constructive debate on the death penalty in Africa. Considering that the African Commission is encouraging such a debate, the article begins with an examination of its stance on the subject. This is followed by a brief evaluation of the use of the death penalty in Africa, highlighting some areas of concern. The death penalty in Africa is then considered from a human rights perspective, focusing mainly on the possibility of relying on constitutional provisions on the right to life and the prohibition of cruel, inhuman and degrading treatment to challenge the death penalty.