On the face of it, SA has a legal system with well-developed protection for ideas. Copyright and patent law are both enshrined, there is significant jurisprudence in this area, and several specialised legal practices deal with it.
As a sub-set of this area of specialisation, a number of young lawyers have seized the opportunity presented by the advent of the digital age and are busy developing both expertise and case history related to things like digital copyright infringement.
Allied to this is new legislation, like the Electronic Communications and Transactions Act, which seeks to govern document management, including personal e-mail and transaction records.
These young lawyers will build their practices and knowledge. Cases will be tried; precedent set. Twenty years from now, experienced lawyers will gravitate to the bench and SA will be legally well up to speed.
The only problem is that we do not have 20 years. We may not even have 20 months. Our legal system needs to adapt far faster to the new digital economy than it`s doing at present.
Evidence for this assertion comes from personal experience and also observation of international trends. For example, IBM recently announced further moves to downsize software development operations in the US and to move more business to centres offshore. The main winner of IBM`s business is India, although others, like the Philippines, will also benefit. SA does not feature. Why not?
My answer is that I have observed considerable wariness among international customers concerning SA`s regulatory framework. They are keen to do business here, they like our skills and pricing, but they tell me that they are concerned about our legal system. It`s one thing to establish a contract to protect their intellectual property (IP), they say, but do SA`s courts have the level of understanding and IT sophistication necessary to uphold such contracts?
I`d love to give them an assurance but when I see the emphasis placed by our government on individual rights over corporations, I can`t. Of course individual rights are vital, but businesses have to have the assurance that they, too, can operate and ensure the safety of investment in things like IP. That the government does not understand how IP works is evidenced by the annual outflow of state, provincial and municipal funds to foreign corporations for licence fees. This money would be far better spent by government developing - and protecting - local software solutions.
India`s government gets the picture. The Intellectual Property Association is a worldwide group that looks at IP rights and their protection. It traces the spark that ignited the Indian software explosion to a government decision to produce legislation that significantly tightened IP protection. To put it another way, American and European investors were given the guarantees they needed.
Software development could become a major contributor to the SA economy. As we know, you don`t need a university degree to do it. The industry has a very quick and efficient aptitude test for school leavers and we could scale up to meet increased demand very quickly. But it won`t happen as long as investors view the South African legal system with suspicion and prefer our competitors.
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