Copyright Amendment Bill – Protect or Destroy?

The Department of Trade and Industry has initiated the process of implementing an updated Copyright Bill in the hopes of protecting composers, musician, artists and authors. Ironically, it is widely claimed that the Bill will achieve the opposite of its intention.

Copyright protects the expression of a work that has been reduced to a material form. This is imperative in the creative industry (movies, music, art etc.) and provides value in a work that is performed in these areas.

The Copyright Amendment Bill has been labelled as a complex document which, if passed in its current form, will undoubtedly trigger unintended consequences such as job losses and disinvestment in South Africa. The intention of the Bill is to benefit creators of copyright material but the exceptions regarding fair use have been extended to a point at which the exceptions will be detrimental to the creators. This is because the exceptions allow for a copyright work to be reproduced in many different ways without the consent of the copyright owner their and provides no recourse against the party reproducing a work.

The Publishers Association of South Africa recently issued an impact study report in partnership with PWC in which it was projected that there would be a 30% decline in employment and a weighted average of a 33% decline in sales (around R2.1 billion) in the publishing sector alone. It was further predicted that the education public sector would be “recolonised” as it would no longer be viable to produce local textbooks.

If this Bill were to be passed in its current form, it would deter local authors of textbooks from producing locally as the fair use exceptions specifically allow for the reproduction of any copyrighted work if it is to be used “for the purpose of teaching”. This addition to the list of exceptions is very broad and provides an opportunity for the reproduction of an entire work without any penalty.

These extensive exceptions will discourage local textbook publishers from producing in South Africa. Textbooks would then have to be imported. This would come at an increased price and negatively affect the access to these textbooks, in a country with a dire need for easier access to education.

If however, the fair use exceptions do not apply and the party reproducing the original work, who is found to be in contravention of the Act, could be ordered to cease and desist and to pay a standard penalty. This is a far cry from the multi-million dollar law suits brought in the USA for copyright infringement.

Another effect that the amendment would have is the implementation of retrospective royalties. This will compel film and music producers to pay retrospective royalties to all incidental performers such as back up dancers in music videos, even if these performers had been paid an initial fee for the work.

One positive identified in the amendment is the exception that allows for books to be reproduced in braille for the blind community without the permission of the publisher thereof.

The amendment has not been well received and has been subject to a large amount of criticism. The Bill has been passed through the National Assembly and has been voted on at the National Council of Provinces. The Bill is currently awaiting signature by the President for signature. If this Bill is enacted into law, it will undoubtedly continue to face intense criticism and the constitutionality of many of its provisions will in all likelihood be challenged.

Jean van Vuuren – Candidate Attorney
jean@rademeyer.co.za

Kim Rademeyer – Partner
kim@rademeyer.co.za

The above does not constitute legal advice and, if you do have an issue relevant to this article, please contact our firm for an appointment.