The Law's an Ass
No-one quite knows whether media opportunities in Africa in the medium term represent opportunities for legal and regulatory development or for a kind of anarchic, haphazard opportunism. The reason for this dilemma is created by developments in technology, which sprints through its paces, while the mills of law and justice generally grind through their slow turns. The question really is this - will media law in Africa begin to develop in gigantic strides or will business leap ever forward, churning cash and operating in general disregard of current legal frameworks?
The big new industries, telecoms and broadcasting, have sophisticated legal frameworks here at home, but every day brings something new.
Today VANS, tomorrow G4, then G5 mobile wireless applications. And the law battles to catch up, let alone keep up, as the new Electronic Communications Bill, which seeks to marry the previously separated worlds of telecoms and broadcasting, is introduced. The bill is flawed and susceptible to challenge, and already developers are looking at new applications that will blur previous lines even more. But at least we media lawyers have an environment of learning.
While cash is clearly there to be scooped up to greater or lesser extents throughout the continent, the law is scoping around, developing ever more slowly, as commerce decides that litigation and legal progress is bad business and only makes sense where the stakes are astronomical. So less cases, less precedent, less legal intelligence and more to not know the answers to.
Where to the law, then? Throughout Africa media law takes on different characteristics, according to age. Defamation and the invasion of privacy are well developed in many countries, having for better or worse had the jurisprudential history of the colonialists. Broadcasting, being newer business, varies according to need. So some countries are well developed and prepared for new environments while others remain undeveloped, having scarcely any need, since broadcast entities exist only as mouthpieces for and assets of the particular state.
But for each category the law is lagging. In dealing with piracy in the music industry, for example, Africa and its lawyers have been slow to develop a copyright jurisprudence. Now the law is dealt another blow. Lawyers do not only have to understand the complex web of copyright, but now have to deal with the dissemination of those copyrights through computer applications, the internet and those ever-transforming suppliers of media who disregard the conventions of best practice and legalities. And the awful reality is that the only people who care are the lawyers, artists and holders of copyright.
In broadcasting there are huge new opportunities. The migration from analogue to digital formats has been intensely scrutinised in South Africa. It will move throughout Africa and obvious economies of scale will yield a new pan-African media, cheaper, better and faster. Who’ll bankroll it is unknown, but suitors will abound. Who’ll control the law is another question entirely. And with satellites in the sky, which law controls the links up and down?
These are some of the questions that we grapple with each day and each industry has its own quirks. Whether its film and the growing industry and markets and the building of theatres, putting up masts to empower the continent to cellular telephony, or providing cheaper digital radios to allow the continent to receive the world’s news, the law has to start making leaps. It cannot be the donkey in the race of thoroughbreds, because if that happens, the law will forever be an ass.
Mark Rosin is a founding partner at Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg. Visit the firm’s website at www.rwr.co.za.