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- SA Mercantile Law Journal = SA Tydskrif vir Handelsreg
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- Volume 24, Issue 2, 2012
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 24, Issue 2, 2012
Volume 24, Issue 2, 2012
Author Caroline B. NcubeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 133 –147 (2012)More Less
A significant portion of copyright infringement in the digital environment is carried out through file sharing. Litigation by copyright-holders against individuals and the providers of online file sharing or peer-to-peer (P2P) platforms has failed to stem the tide of large-scale infringement. The pursuit of individuals has been nothing short of a 'public relations disaster' because of the disproportionate remedies sought. For example, in the United States, Jamie Thomas-Rasset's case, based on her sharing of 24 songs, resulted in a fine of US$1.92 million in 2009, which was reduced to US$54 000 in January 2010 and then fixed at US$1.5 million by a third jury trial in November 2010. Thereafter it was reduced to US $54 000 in July 2011. An appeal was filed against that reduction in August 2011, oral arguments were heard on 12 June 2012 and judgment is still pending as at 10 July 2012.
Enkele relevante aspekte ten opsigte van risiko's waar maatskappye aanspreeklik is vir omgewingsbenadelingAuthor A.L. StanderSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 148 –176 (2012)More Less
With regard to environmental harm and the liability for damages caused thereby, various risks emerge. The first risk is liability itself, and, for any person or entity that operates a business where the environment is to some extent involved, it is essential to know exactly who is or will be liable in a specific instance. In the second place there is the risk that company structures are used to escape liability. Thirdly, it may happen that the damage only materialises years after the harmful activity began or after it has already been completed and the company responsible no longer exists. Fourthly, there is the risk of insolvency of the person or entity responsible for the damage. Another risk is the actual liquidation of the company liable for the environmental harm. During the past fifteen years the pressure on individuals, companies and other entities regarding the protection of the environment has increased dramatically, while it is common knowledge that the incidence of sequestrations and liquidations in recent years has skyrocketed. In this broad context, it is highly relevant to ask who in the end is responsible for the costs relating to environmental protection and the harm caused to the environment by the activities of an insolvent company. Neither environmental legislation nor other legislation such as the insolvency legislation is very helpful in this regard. In the current pre-investigation there will be a brief reference to the first of the four above-mentioned risks, mainly to serve as overview and introduction to the ultimate goal of the following article: namely, an investigation into the situation in liquidation due to insolvency of a company that is or was involved in activities causing environmental harm.
Author Mikhalien Du BoisSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 177 –193 (2012)More Less
Laugh It Off v South African Breweries, an important South African Constitutional Court case, implicitly raised the question whether intellectual property could be recognised and protected as constitutional property under s 25 of the Constitution of the Republic of South Africa, 1996. South African Breweries (SAB) brought a case of trade-mark infringement against Laugh It Off, a company that sells T-shirts which make fun of existing trade marks. SAB had a registered trade mark for the words 'Carling Black Label' and for a representation of the label of its product. Laugh It Off sold T-shirts with the slogan 'Black Labour, White Guilt'. SAB argued that this negative connotation for their product caused damage to their property and business reputation. Laugh It Off, on the other hand, argued that they were allowed to parody a trade mark in terms of the right to freedom of expression. In South African law, this is the most important example of a conflict between an intellectual property right (in this case, a trade mark) and another fundamental right (freedom of expression).
Author James NewdigateSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 194 –202 (2012)More Less
The past few decades have seen an exodus of the world's shipping fleets to 'convenience registries'. Waning notions of national identity and patriotism flounder in these tides of change. Here I shall assess the standing of South Africa's ship registry. Having asked whether the legislative regime of the Republic does provide a 'flag of convenience', particularly regarding permissible ownership structures, I shall then consider whether the registry is attractive and should be bolstered.
Author Gustav BrinkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 203 –210 (2012)More Less
Countervailing investigations are aimed at determining whether subsidised imports cause material injury to a domestic industry producing the like product to the imported product (art VI.6(a) of the General Agreement on Tariffs and Trade (GATT) 1994; art 19.1 of the World Trade Organisation (WTO) Agreement on Subsidies and Countervailing Measures (Subsidies Agreement)). The WTO GATT 1994 contains some rules regarding countervailing investigations (art VI), but most of the rules are contained in the Subsidies Agreement. If it is found that subsidised imports cause material injury to the domestic industry, the importing country may impose countervailing duties to offset the effect of the subsidisation (art VI.6(a) of GATT 1994; art 19.1 of the Subsidies Agreement). South Africa, as a WTO Member and therefore signatory to the Subsidies Agreement, is required to conduct countervailing investigations in line with the Subsidies Agreement (art II.2 of the WTO Agreement; Degussa Africa (Pty) Ltd and Another v International Trade Administration Commission and Others (22264/2007)  ZAGPHC 112 (20 June 2007), available at http://www.saflii.org/za/cases/ZAGPHC/2007/112.html). The Subsidies Agreement specifically requires Members to indicate in their legislation how the margin of subsidisation will be determined (art 14).
Categorising credit agreements, particularly credit guarantees, as small, intermediate or large agreements under the National Credit Act 34 of 2005 : analysesAuthor Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 211 –217 (2012)More Less
The National Credit Act 34 of 2005 applies, with only a few exclusions, to all consumer credit agreements concluded between parties dealing at arm's length and made, or having an effect within, South Africa (ss 4-6 and 8). The application of the Act is fully discussed in M Kelly-Louw 'Consumer Credit' in: WA Joubert (founding editor) The Law of South Africa vol 5(1) 2 ed (replacement volume) (2010) in pars 6-20; JW Scholtz (ed) et al Guide to the National Credit Act (2008; loose-leaf) in chap 4; and PN Stoop 'Kritiese Evaluasie van die Toepassingsveld van die "National Credit Act"' (2008) 41 De Jure 352.
To publish or not to publish : a critical consideration of the role of the music publisher today : analysesAuthor J. Joel BaloyiSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 218 –232 (2012)More Less
One of the exclusive 'bundle of rights' that the owner of the copyright in a literary or musical work has is 'publishing the work if it was hitherto unpublished' (s 6(b) of the Copyright Act 98 of 1978). The first owner of the copyright in a work is its author (s 21(1)(a)). The author remains the owner of copyright in the work until he or she transfers ownership to another by way of assignment or through testamentary disposition, or where the copyright is transferred by operation of law (s 22(1)). The exclusive right to publish a work is therefore the author's, unless the latter assigns this right to another person. The right to publish a work is not one that vests in some other entity, such as those called 'publishers' in the music industry, with whom the author has to negotiate to get his or her works published. It is a right that vests in the author, and music publishers may own or control it only if transferred to them by the author. This is important to note because many authors of copyright in musical works (commonly known as 'composers', though the term 'composer' is itself not used in the Copyright Act) are under the impression, or they are made to believe, that they need to have a music publisher to get their musical works published. (In this analysis the expression 'authors of musical works' and the more popular expression, 'songwriters' are used interchangeably.)
The importance of insurers' commercial interests in the removal of discriminatory gender rating variables in calculating insurance premiums and benefits : a comparative legal analysis : analysesSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 233 –251 (2012)More Less
Motor-vehicle insurers use discriminatory rating variables, such as age, gender, marital status and geographical location, to calculate risk and determine insurance premiums. They justify this use by their accurate prediction of risk. For example, gender is commonly used as a rating variable in motor-vehicle insurance because actuarial evidence shows substantial differences between the driving patterns of men and women. Statistics indicate that men younger than 22 are 25 times more likely to commit a driving offence and ten times more likely to be involved in a serious accident (James Slack 'EU Judges Drive Up Car Insurance and Pension Costs for Men with Equality Ruling', available at http://www.dailymail.co.uk/news/article-1361750/Car-insurance-women-soar-25-men-face-10-CUT-EU-rules.html (visited on 25 January 2012)).
German Corporate Governance in International and European Context, Jean J. du Plessis, Bernhard Großfeld, Claus Luttermann, Ingo Saenger, Otto Sandrock, and Matthias Casper : book reviewAuthor Irene-Marie EsserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 252 –253 (2012)More Less
The first edition of this book was published in 2007. The aim of the book was to provide the reader with a basic understanding of the German corporate governance system. It offered an overview of German corporate law and also provided an interrelationship among various organs required for German public organisations. It focused on the German system of codetermination and the dominant role played by German banks in controlling some of the company organs of large organisations. The preface stated that the book provided a comprehensive and in-depth discussion of German corporate law and the German corporate governance system in English, and that it would assist non-German readers in obtaining a better understanding of German corporate law and German corporate governance.
Law of Property Casebook for Students/Sakereg Vonnisbundel vir Studente, A.J. Van der Walt : book reviewAuthor Mitzi WieseSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 253 –255 (2012)More Less
Law of Property Casebook for Students/Sakereg Vonnisbundel vir Studente is a casebook for the elementary reader of case law in a first course in the law of property. It was written to supplement the textbook by AJ Van der Walt and GJ Pienaar Introduction to the Law of Property 6th edition (2009) Juta & Co, and both share a similar structure and approach. Yet the casebook also refers to other textbooks and is in a bilingual (English / Afrikaans) format.