Bifurcated worlds and copyright norms: a literary reflection on inclusive copyright, normative pluralism and the spectre of anarchy

Abstract

This article draws on AJ van der Walt’s insights into the legal transformation of society regarding the property law norms inherited at the dawn of constitutional democracy, and proceeds to develop and apply them in the context of contemporary South African copyright law. Specifically, this article reflects on the state of copyright law in South Africa by undertaking a literary analysis of two novels, namely, Kingsley Amis’s You can’t do both and Zakes Mda’s The Madonna of Excelsior. The novels are introduced as glimpses into two very different societies around the same time in history that are both governed by the same proprietary copyright norms. The roles of copyright works in the cultural and knowledge hierarchies within each society are explored, as well as how the characters in the respective novels engage with various forms of art, music and literature. Reflecting on Van der Walt’s utilisation of Amis’s novel to frame the tension between the purported stability anchored in social fundamentalism and the allure of change (and the spectre of anarchy that change presents to some) evident in a spate of Constitutional Court decisions during its 2007 term, this article outlines the same tension in the contemporary popular media rhetoric around the reform of copyright law. The portrayal of post-war England morality in Amis’s semi-autobiographical novel is contrasted to the Apartheid-era South African society depicted in Mda’s work, in which the white population of 1970s South Africa viewed normative pluralism as represented by the inclusion of black people’s interests – the very recognition of their dignity – with profound distrust, as such empowerment posed a direct threat to the socio-economic and political power they enjoyed in the country. This same fear of normative pluralism encroaching upon the entrenched power relations under the contemporary status quo is evident in the apologist rhetoric published in popular media that decries all attempts at copyright reform as simultaneously ignorant, malicious and corrupt. In this regard, the narrative styles of each novel are shown to be an apt illustration of moral agency as reflected in the competing exclusionary (self-interested) and inclusionary (other-regarding) approaches to copyright’s bedrock ideology and operative norms. Finally, the article considers the themes of sex and property as encountered in each novel as proxies for power over others and a means of enforcing normative modalities of self-interest against others, and the implications of the respective copyright norms for the broader political community and individuals’ place in their society are contemplated.