Open and freemium music business models in Africa - copyright and competition consequences

Okorie, Chijioke Ifeoma

Open and freemium music business models in Africa - copyright and competition consequences

Doctoral Thesis

2018

Publisher

University of Cape Town

Department

Department of Commercial Law

Faculty

Faculty of Law

Abstract

This thesis considers how South Africa and Nigeria can apply copyright and competition laws to regulate the open and freemium music business model that involves the use of copyright-protected music content to generate revenue from advertising. To enhance their competitiveness and escape copyright infringement liability, the firms that deploy the business model impose contractual terms to explain their use of protected content and direct the actions of platform users. Using case law from the Court of Justice of the European Union (CJEU), the thesis argues that although these terms result in free and wider distribution of copyright content, some aspects of their implementation may be unaligned with the regulatory framework. The thesis finds that these misalignments exist because the non-payment of royalties to copyright owners and their exclusion from revenue-sharing arrangements may adversely affect their viability of copyright owners as small and medium-size enterprises (SMEs) while their inclusion necessitates the imposition of restrictions that may prevent innovative uses of copyright products. Further, the thesis finds that the misalignments are caused by legal uncertainties regarding the exclusive rights of the copyright holders and the scope of their limitations and exceptions, as well as unavailability of competition law enforcement criteria that protect the economic freedom of SMEs including copyright owners. Because of the copyright covering the music content and its use in the economic activity of advertising, which is regulated by competition law, the thesis argues for aligning the business model with the regulatory frameworks. Further, the thesis argues that by ratifying international copyright treaties in ways that provide exclusive rights limited by compulsory licensing, and by amending and enforcing competition law to recognise unconscionable conduct as xiv anticompetitive, copyright and competition laws may be used to regulate the open and freemium music business model. By adopting a South African and Nigerian perspective and proposing competition law solutions, this study aims at filling a gap in the academic literature, which does not appear so far to have attempted a pro-Africa assessment of the business model and/or considered the complementary role of competition law in copyright-related industries in specific jurisdictions.

Keywords

commercial law

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