Copyright Amendment Bill 2015

The Copyright Amendment Bill 2015, which aims to amend the Copyright Act 98 of 1978, has been published by the Department of Trade and Industry (DTI) for public comment. The DTI says the current policy revision is based on the need to bring the copyright legislation into line with the digital era and developments at a multilateral level.

Jeff Radebe, the Minister in the Presidency responsible for Performance Monitoring and Evaluation, who announced the approval of the publication of the Bill, stated that “The Bill addresses the licensing of copyright work and material in relation to commissioned work to prevent commercial exploitation”  and that the Bill “will help government to address the plight of musicians and performers by ensuring that royalties are paid on time by recording companies and broadcasters as most of them are dying as paupers.” However, while this sounds good in theory, a reading of the Bill exposes many errors, inconsistencies and far-reaching problems that are causing an uproar amongst industry experts.

Some of the more noteworthy proposed amendments are the introduction of a new class of works that will be eligible for copyright, namely “craft works”, such as pottery, jewellery and folk-art, a re-sale royalty right for artistic works, a “fair use” exception, which may only be used in limited circumstances, the management of digital rights and the introduction of a provision that purports to stop brand holders from restraining parallel imports through copyright infringement proceedings.

In principle, the Bill is a step in the right direction. There are some positive proposals such as provision for disabled people in that any translated or amendment of protected works for their purposes will not be considered copyright infringement, and the introduction of collecting societies for artists or owners of copyright.

However, the problems with the Bill far outweigh these positive developments. It has been submitted by industry experts that the Bill is badly drafted and difficult to understand. Further, it appears that basic principles of copyright law (and some other laws) and even the Constitution have been disregarded.

Some proposed provisions of the Bill are just absurd, such as the introduction of a provision that all copyright assignments shall be valid for only 25 years and the criminalisation of minor transgressions such as non-payment of a re-sale royalty to the original creator of a work, who may well be unknown to the purchaser at the time of the sale.

Possibly one of the most significant changes the Bill proposes is that the ownership held by individuals will automatically transfer to the state on their death. Not only is this provision unprecedented, the Bill does not indicate how this transfer will be administered. Surely depriving a person or their heirs of the benefits of a work is unconstitutional? Strangely, another part of the Bill prohibits the state from assigning copyright to anyone else – so the copyright can never be sold or exploited once it is transferred to the state.

It has been suggested that the Bill should be completely re-drafted – Professor Owen Dean, chair of intellectual property law at Stellenbosch University, believes that the Bill “displays a lamentable lack of knowledge and understanding of the basic principles of copyright law. While it has some good aspects, it is fundamentally so flawed that the DTI should go back to the drawing board and start afresh by using a drafting committee that has expertise in copyright law”.

Professor Dean warns that “if this Bill becomes law and the Copyright Act is amended accordingly, it will do inestimable harm, to our copyright law and will cause it to plunge into a freefall leading to decline”.

The public were given until 26 August 2015 to comment on the Bill. It is believed that a recent meeting facilitated by the South African Institute of Intellectual Property (SAIIPL) allowed for intellectual property practitioners in the Gauteng area to ventilate their concerns and discuss the far reaching and controversial implications of the Bill. We now await the passage of the Bill through Parliament but it may be a few years before we know whether the Bill will become law. Who knows, it may be referred to the Constitutional Court or even completely re-drafted. All we can do now is watch this space…

Kim Rademeyer – Partner
kim@rademeyer.co.za

Monty Rademeyer – Partner
monty@rademeyer.co.za

Sources:

1. “HOT OFF THE PRESS: SA Copyright Amendment Bill published for comment” http://afro-ip.blogspot.com/
2. “Copyright Amendment Bill approved by SA Cabinet” http://mybroadband.co.za/news/government/130406-copyright-amendment-bill-approved-by-sa-cabinet.html
3. “Copyright Amendment Bill boggles legal minds” moneyweb.co.za
4. “Converting Copyright into Copywrong” by Professor Owen Dean, published in Vol 2 Issue 2 of the SAIIPL newsletter, August 2015