Monday, 20 November 2017

No Monkey Business – who owns a selfie taken by an animal?

No Monkey Business – who owns a selfie taken by an animal?

Naruto – a Macaque in Indonesia.  The animal took this selfie with a photographer’s camera.  David Slater via Wikimedia Commons

Many of us see animals – and particularly domestic pets – as more than just “things”.  However, in South African law, an animal is regarded as an object – akin to a mobile phone or motor vehicle.  A person cannot murder an animal, regardless of how cruel or despicable their conduct; and while this issue is certainly a conversation we should be having as an advanced, modern society, it is certain, sadly, that animals enjoy very little legal protection and little in the way of legal rights.

Moreover, in terms of the Copyright Act 1978, copyright ownership is conferred on works of which the author is a person – either a natural person or a juristic person (like a company).  Consequently, in terms of our law as it stands, it would seem that animals cannot own the copyright to any images taken (whether taken intentionally – via training even, or by accident).

This is the backdrop to the interesting story involving Naruto, an Indonesian monkey.  In 2011, photographer David Slater travelled to Indonesia to document a troop of crested black macaques.  A six-year-old male took a series of selfies with Slater’s camera – this was the start of a complicated (and no doubt costly) legal fight to determine ownership of copyright.
In about 2014, Wikipedia and Techdirt were asked by the photographer to take the photo down – both refused, essentially claiming the photo did not have any copyright as a non-human took the photo.   Subsequently, in 2015, the People for the Ethical Treatment of Animals (PETA) filed a suit against Slater claiming that the monkey was the correct owner.

Ultimately, the parties reached settlement in September 2017 – Slater has agreed to donate 25% of any future income from the photo to charities dedicated to protecting crested macaques in Indonesia.  Further, the parties (PETA and Slater) asked the 9th US circuit court of appeals to dismiss the case and throw out a lower court decision that said animals cannot own copyrights.

Some feel that this settlement is nonsensical – the law is clear in the United States (via B Wassom): “Copyrights are owned by human creators. And since this photo resulted from an entirely non-human process, it belongs in the public domain.” 

Tuesday, 14 March 2017

Returning Defective or Faulty Products - Consumer Protection

Returning defective or faulty products

At some stage or another, we’ve all purchased goods that were defective or faulty.  In the past, returning a product that didn’t quite work like the box said it would, or returning a TV that didn’t switch on meant negotiating with a supplier, providing a receipt and hoping that you would be treated fairly.

With the inception of the Consumer Protection Act, those days are long gone – even if the store “policy” or “management” think otherwise…

Remember though, a consumer’s right of return in terms of the CPA is limited - you cannot for example return a pair of shoes or flat screen TV when buyers remorse kicks in and you realise you have spent far too much money.  You can, under certain circumstances, and for a limited period of time return goods if:

  • They were faulty and / or defective; or
  • They do not meet the specific purpose for which they were purchased; or
  • They were purchased as a result of direct marketing (consumer has a “cooling off” period); or
  • They were not seen (examined) before purchase.

Looking specifically at faulty or defective goods, if the product you buy turns out to be a dud you do have recourse, and you can return the product, even when the store owner or management claims otherwise.  Crucially, you cannot be forced into a repair or store credit – you have the right to chose between a repair, replacement or full refund and you can do this anytime within 6 months of purchase.

Section 56 (read with section 55) of the CPA creates an automatic warranty that all goods sold are:

  • reasonably suitable for the purpose for which they are generally intended;
  • of good quality, in good working order and free of any defects;
  • will be useable and durable for a reasonable period of time;
  • comply with the Standards Act/ other public regulations; and
  • reasonably suitable for the specific purpose that the consumer has informed the supplier that the consumer wants to use them for.

Importantly, at the supplier’s risk and expense, and without penalty, a consumer may return any defective or faulty product within SIX months.  As stated above, a consumer has a choice to replace, repair or to get a full refund – but, the defect or fault must be something more than “insignificant” or “not material” – each case will turn on its own facts in this regard.

It is also worth noting that contrary to popular belief, underwear is not an exception.  As odd as this sounds, if the product is faulty, it can be returned like any other…

A supplier cannot force a consumer to opt to have the goods repaired if the consumer prefers a refund or replacement unless the defect is insignificant or minor. The consumer can insist on a cash refund instead of a store credit or vouchers, or on a replacement with something similar at no additional cost. The supplier may not force the consumer to purchase a more expensive model or brand. The supplier must bear the costs of repairing, collecting and/ or replacing the defective goods and may not charge for usage or wear and tear on the returned product.

Returns for defective and/or faulty goods will not apply if the consumer was specifically told that the particular goods were offered in a specific condition (i.e.: sold as is / voetstoets) or if the consumer tampers with the goods (altered contrary to the instructions).

If you are a supplier, it is important to have a CPA compliant returns and/or refund policy in place.

Monday, 13 February 2017

Consumer Protection: Cancelling a Future Reservation, Order or Booking

Whether you are a supplier of goods or services, or a consumer entering into a transaction to receive goods or services, it is likely you will need to deal with the cancellation of an advanced reservation, order or booking at some stage.

For the most part, the legal position is now regulated by section 17 of the Consumer Protection Act No. 68 of 2008 (‘CPA’) – in summary, a consumer is free to cancel any advanced reservation, order or booking subject to the imposition of a reasonable cancellation fee.  This section does not apply to “special-order” goods (such as one-off, custom order goods) and does not apply to franchise agreements.  Moreover, a supplier may not impose any cancellation fee if the reservation, order or booking is missed due to death or hospitalisation.

Crucially, the apparently normal practice of including a “non-refundable” deposit for future services is not sustainable – a supplier should rather protect their interests by including a cancellation fee, which includes a sliding scale indicating how much of the fee will be refunded in the event of cancellation.  It may well be that a supplier is entitled to more than the deposit amount in any event, particularly if they are given unreasonably short notice and cannot replace the consumer.  Suppliers who persist with non-refundable deposits, particularly where they cannot reasonably justify the amount charged, will likely come off second best in the National Consumer Commission (or a competent court).

By way of example, the wedding industry is instructive.  According to the Ombud for Consumer Goods and Services, around 190 000 marriages take place in South Africa every year – shockingly, it is estimated that between 10 and 15% of these marriages are postponed or cancelled every year. Therefore, the statistics suggest that most suppliers in the wedding industry will face cancellation or postponement at least once every calendar year. 

Using one of the many wedding cancellations as an example, a consumer is entitled to cancel the agreement for future services (notwithstanding what the agreement may say).  The supplier has the corresponding right to charge a reasonable cancellation fee (a supplier may also ask for a reasonable deposit or booking fee to secure the future date).

The key issue appears to be the interpretation of a reasonable cancellation fee.  The following factors should be considered: nature of the service, length of notice, possibility of replacing the consumer and industry norms.

According to Advocate Melville of the Consumer Goods and Services Ombud, the idea should be compensation, not punishment of the couple.  A competent court or the National Consumer Commission will essentially be weighing up two competing interests: on the one hand, the consumer may feel it is their right to receive back their money for a service they did not receive – i.e.: they do not want to pay, or want to pay as little as possible.  On the other hand, the service provider may have to turn down other jobs (and perform a substantial amount of work before the actual day, as well as incurring operational costs). Further, in the wedding industry in particular, the replacement of a consumer on anything less than six or seven months’ notice may be difficult or improbable – i.e.: the service provider wants to charge as close to 100% of the fee as possible.
In the absence of clear industry guidelines, or authoritative legal precedent, the best answer is to attempt to deal with this fairly and transparently in your service level agreement (or your standard terms and conditions).

It is suggested that a sliding scale is employed as a guideline (the unique circumstances of every matter will have to be considered, and each matter is decided on a case-by-case basis).  The scale can be adjusted to take account of the particular service offering, industry and its norms - for example, in the wedding industry, services are typically booked more than 9 months in advance, sometimes more than 18 months in advance…

Therefore, a sliding scale in this industry will operate differently from one used in another industry.  For example, one could base the cancellation fee (as a guideline) on the length of time given and the likely ability of the supplier to replace the consumer.  If a supplier is only given one months notice, it is likely they will not be able to replace the consumer and can justify operational expenses, marketing, research etc. and validly claim a large proportion of the contract price. 

Conversely, a supplier given 11 months’ notice should be able to re-book the date and will likely have incurred little to no costs – therefore, the refund should be as close to full as possible.

All of this will depend on the service offering and particular facts of the situation, particularly with an area of law that is as new as this one.  Suppliers would be wise to ensure their agreements deal with cancellation, spell out a reasonable penalty, and are fully CPA compliant – reputational risk and long legal battles are often not worth a few thousand Rand…