Decolonising Copyright: Reconsidering Copyright Exclusivity and the Role of the Public Interest in International Intellectual Property Frameworks

Abstract

International intellectual property frameworks conceive of copyright exclusivity as a largely individualistic, westernised and capitalistic benefit which must be balanced against and limited by the non-commercial, competing public interest. This is expressed primarily by way of limitations to and exceptions from the norm of exclusivity recognised within these frameworks. This article argues for an alternative interpretation of copyright exclusivity as being justified by the public interest. However, unlike the works of Geiger et al., this interpretation is not premised upon the constitutional and quasi-constitutional patterns accounting for the public interest foundations of IP. Instead, it is premised upon the conceptualisations of indigenous communities within the Global South relating to exclusivity over intangible property for the communal benefit. This article argues that a paradigm shift in the international community at a supranational level, such as the removal of the TRIPS Agreement from the WTO, is needed in order to better reflect the norms and values of the Global South. By reassessing the nature of copyright exclusivity rather than delegating conversations about non-commercial communal needs to limitations and exceptions, the Global South is no longer seen as mere passive receptors of Western norms and values, but as active participants with inherent value in the creation of a truly global IP framework.

Copyright Law Protection of films in Nigeria (Nollywood) and South Africa (Sollywood): Pre and post‐Covid‐19 pandemic

“…94 This lost opportunity to meaningfully engage with and consider the possibility of a public interest defence within the realm of copyright law is unfortunate but not surprising given the reliance on the economic incentive theory and the underutilisation on a national and international scale of public interest exceptions and limitations to copyright exclusivity. 95 While the South African courts have been enthusiastic in extending the scope of protection for copyright owners-as evidenced in their generous interpretation of 'cinematographic films'-they have been less so in protecting the public interest and rights of users. Via Vollenhoven illustrates the supremacy of contract law and how concepts such as fairness and public interest in the realm of copyright have been seen as secondary to this.…”