ABSTRACT
The internet poses significant challenges to intellectual property (IP) regulation because it facilitates wide and quick dissemination of IP-protected works and enables new ways of creating works that may infringe IP rights. This has led to the creation of new legislative measures and enforcement mechanisms. This chapter is concerned with the intersection between the protection of IP rights and freedom of expression on the internet and how to balance these often-competing rights in the context of political commentary, such as parody, satire and caricature. In Africa, addressing this tension meets the first hurdle at the formal level: while freedom of expression is recognised, intellectual property rights are rarely protected in the constitutions of many African states. Of those that do, many recognise IP rights as a subset of other rights. It is therefore not surprising that decisions of the courts in several African states that have confronted this tension are inconsistent and do not establish coherent standards of regulating the tension. In general, restrictive copyright laws raise the danger of imposing disproportionate limitations on the exercise of the freedom of expression involving use of copyright material for parody, caricature and other political purposes. The regulation of the liability of intermediaries remains an area that needs more attention in Africa to ensure that freedom of expression and IP rights are balanced.
