UJ's Annual Treat: 24 October - Don't Miss It!
Once again Prof Wim Alberts has put together a stellar program for the annual IP seminar from the University of Johannesburg. The seminars are always packed so be sure to sign up as soon as possible.
Thursday, 22 August 2019
Diversity and Inclusion in IP: South Africa's opportunity
Yesterday, leading publication Managing Intellectual Property, published a Special Report on Diversity and Inclusion within the IP profession following a survey they conducted in July. The report can be viewed in full if you login as a guest subscriber, and it's worth a read. It will resonate with each and every one of you, but if that does not motivate you to read it, the fact that two thirds of in-house counsel advocate a diversity and inclusion policy, as one of their factors in choosing outside counsel, may just.
For a South African, diversity and inclusion has been a subject of constant discussion for decades. Our unique past has made it that way and there is no respite because it remains as topical and important today. One may think that the South African discussion focuses only race and colour and less on other minority or alienation interests. There is no such thing as a "gender card", for example, but the term "race card" is easily understood, even by primary school children.
However, with the discussion on race and colour come the broader terms - discrimination, empathy, unconscious bias and understanding - which are so vital to dealing with the all aspects of diversity and inclusion. This is why I believe that South Africans can have a major part to play in the worldwide discussion on addressing the issues, so evident in the MIP report. In fact, I believe that South African firms and individuals have a unique opportunity to lead the discussion and debate on this aspect, and they should take it.
This is not to say that South African firms are diverse and inclusive and set the standard for a worldwide model. They, like many others, are simply not there yet. The opportunity lies in the daily conversation. There must be very few places on earth where, on a daily basis, a person will engage with others of such a broad spectrum of backgrounds, ethnicity, race, gender, means and cultures. With some self awareness, empathy, patience and fortitude there is an instant and live opportunity to practice and engage with the challenges and benefits of diversity and inclusion.
The thing about South Africa too is that the polarising forces that are evident in worldwide politics today are too precarious here, to contemplate. We are destined to have the discussions, whether we like it or not, and with that comes unique advantages that enable us, as South African IP practitioners to develop skills and experience to contribute positively to the topic that the MIP Special Report highlights.
(edited on 23 August to remove a direct link to the Special Report, on request)
Tuesday, 20 August 2019
Resources on the CAB debate: all the links you need!
South Africa: The Copyright Amendment Bill is
presently on the desk of the President awaiting signature. There has been
furious debate over the Bill, with supporters and detractors uniting on one of
two predominant sides to voice starkly different opinions as to what the
destiny of the Bill should be. For those who would like to understand the
debate, Afro-IP has compiled this post containing links for further reading on
the Bill and those engaging in activism surrounding it.
A group called ReCreate
has emerged supporting the Bill. Recreate represents a spectrum of creatives,
trade unions and members of civil society evidenced by their home page. It
drafted an open letter advocating for the Bill to be signed in
its current form and recently convened a seminar
on Decolonising Copyright where the need for copyrighted items to be made
accessible in a manner suited to the South African context was discussed. One
of the most hotly-contested aspects of the Bill is the doctrine of “fair use,”
which is introduced by the Bill. Recreate argues
that this is in the interest of all South Africans and will not prejudice, but
rather encourage creatives. It highlights that “fair use” will facilitate the
realisation of rights such as the right to education. A further motivation
behind their support of the Bill is that it will make copyrighted works more
readily available to people with disabilities, for instance by allowing written
works to be printable in braille.
The Coalition for Effective Copyright
(“Coalition”) came into existence with a view to prevent the
Copyright Amendment Bill from being signed into law in its current form.
The
Coalition represents creatives in the industry
who do not support the Bill. Once the National Assembly and National Council of
Provinces approved the Bill earlier in 2019, the Coalition formally petitioned
the President not to sign it. A seminar
was recently held, entitled “On a Knife’s Edge” under the auspices of Adams and
Adams where the Coalition was represented by its spokesperson, Collen Dlamini
who moderated a panel discussion where the need to alter the course of copyright
reform was discussed from an industry perspective. The Coalition claims
that the Bill does not pass constitutional muster
on the basis that its prescripts amount to deprivation of property without
compensation, that it has been tagged incorrectly, that inappropriate authority
has been delegated to the Minister of Trade and Industry, that there has been
inadequate public consultation, and that it violates the right to freedom of
trade and occupation.
The pattern of passage
of the Bill through Parliament prior to reaching the president had essentially
5 prongs. Debate of the Bill took place throughout the process, it was released
for public comment, public hearings were held, it was passed by the National
Assembly and then the National Council of Provinces. As is customary, the
Parliamentary Monitoring Group kept records of the process with the debates and
submissions of all parties concerned being made publically available. The Department of
Trade and Industry, as the ministry responsible for copyright reform, has also
made public all of their submissions
on the Bill as well as their responses
made to issues raised by the public in the parliamentary hearings concerning
the Bill.
According to section
84(2) of the Constitution,
the President is faced with a number of choices. He can either sign the Bill
into law as it stands, refer it back to the legislature for its consideration
and subsequent to this if he deems necessary, refer it to the Constitutional
Court for its consideration. As is clearly evident, the proponents and
naysayers will not have a meeting of the minds any time soon and it is anyone’s
guess what will ensue subsequent to the President making his choice. All that
is evident is that seemingly everything in copyright law is up in the air and
that a resolution is urgently needed.Monday, 12 August 2019
The Copyright Amendment Bill: Where to from Here? Aluta Continua!
South Africa: The much-discussed
Copyright Amendment Bill is in a critical point in the post-legislative phase.
It has been passed by the National Assembly and the National Council of
Provinces and is currently on the desk of the President. Questions have swirled
about its constitutionality and a delay in its being signed has prompted
rumours that the President is having doubts but what his options are and where to
from here? Afro Chic explores.
As long as the Bill
remains a Bill it is a living document, subject to change. Of course, the
President can conclude that no changes are required and can sign the Bill into
law, promulgating it into an Act as per the provisions of section 84(2)(a) of
the Constitution.
Such a step is taken when the President has satisfied himself that the Bill
passes constitutional muster. This is what the Department of Trade and Industry (the
Department/DTI) feels ought to be done. After what they indicate was a long
period of consultation and efforts
to ensure that the Bill is in compliance with international treaties and
standards set by the World Intellectual Property Organisation
(WIPO), the Department feels that the Bill ought to be signed into law
forthwith and as it stands. It has been averred by sources that the delay in
signing could well emanate from there being over 18 Bills awaiting signature
and that the President has to to work through all of them, resulting in the
process being stalled for now. It has been highlighted that the Bill, once it
becomes an Act will serve as an instrument of ratification for the, WIPO Copyright Treaty
illustrating compliance with this treaty.
Of course, not
everyone agrees. The Coalition for Effective Copyright
(the Coalition) has clearly set forth that it feels the Bill is
unconstitutional as it is of the view that some of its provisions, for instance
those surrounding “fair use,” amount to arbitrary deprivation of intellectual
property without compensation; something prohibited by the Constitution in
section 25. They are of the opinion that it ought to be referred back to the
National Assembly for reconsideration of its constitutionality in terms of
section 84(2)(b) of the Constitution with a possible referral to the Constitutional
Court for a decision on the Bill’s constitutionality as per section 84(2)(c) on
the cards and as done in cases such as Ex Parte the President of the Republic of South
Africa In Re: Constitutionality of the Liquor Bill 2000 (1) SA 732 (CC).
The Coalition claims that consultation was inadequate and that many of the
provisions of the Bill do not accord with the prescripts of international law.
In the event that the Bill is passed by the President, the Coalition has
indicated that it will mount their own challenge to the Constitutional Court
with a view to invalidate the offending sections of the legislation. It would
then be sent back to the legislature for it to correct the defect the court has
identified and ruled upon, if any.
One means of
determining the constitutionality of the Bill lies in section 36 of the
Constitution; that is the limitation of rights in terms of law of general
application. Rights are not absolute and the exercise of the rights of one
individual or group should not “spill over” and violate the rights of another. Conversely, some limitations can be fair and
ought to be permitted. In analysing whether a limitation is justifiable or not,
section 36 provides certain factors that must be taken into account,
specifically 1(a) the nature of the right; (b) the importance and purpose of
the limitation; (c) the nature and extent of the limitation; (d) the relation
between the limitation and its purpose; (e) less restrictive means to achieve
the purpose. This is a process of balancing of interests that would certainly
be utilised in any constitutional challenge by parties on either side.
The path forward is
thus far unclear. The President has his options as do the naysayers of the
Bill. It would appear that either way, the constitutionality question will play
a big role in the process of finalisation. As we wait for the outcome with
bated breath, let us hope that the President will be guided by a basis steeped
in proper evidence and that due consideration is given to the intricacies and
effects of this important Bill.
Image Credit: Thomas Martinsen
Decolonising Copyright: Building our Creative and Information Economy
On the 7th of August
2019 RecreateSA convened a seminar in association with
the South African Guild of Actors,
the University of the Witwatersrand’s Library,
Blind SA,
the University of Cape Town’s IP Unit,
the South
African Democratic Teacher’s Union, Washington College of Law’s
Programme on Information Justice and Intellectual Property
and the University of the Witwatersrand’s Institute for Social and Economic
Research. The seminar was entitled “Decolonising
Copyright: Building our Creative and Information Economy” and took place in the
Senate Room of the Solomon Mahlangu Building.
Tusi Folane outlined
that RecreateSA- who she represents- is constituted of a broad spectrum of
stakeholders including creatives, activists and trade unions who are all
interested in what the Copyright Amendment Bill could mean for them and the
work that they do. At the seminar, she highlighted, the aim is to interrogate
who stands to profit or benefit from copyright reforms. She indicated clearly
that one of the objectives was to accommodate the views of all and for
participants to expose themselves to different narratives. Some have been very
vocal about pending law reform, making the claim that we are “on a knife’s
edge.”
Mandi Vundla then
presented three poems surrounding creativity, ownership and sharing. A short
film was scheduled to be shown at this point on the expressed need for the
Copyright Amendment Bill but due to technical difficulties it was shown later
on in the programme. In the film a spectrum of interested parties’ views were
expressed, among others a university student and a law professor, both of whom
expressed the need for proliferation of information.
Professor Adam Habib
of the University of the Witwatersrand delivered the Welcome and introduced the
speakers. He explained the fundamental nature of decolonisation (it's about contextualisation) and discussed
the tensions within his own university with regard to copyright reforms. He had
the Library, on the one hand which would like to start enabling open access to
journals and knowledge that is collectively produced and Wits Press on the
other hand who feared for their sustainability in the event that this became a
reality. He posed the question as to how these competing priorities ought to be
married. This is, he said, the purpose of these discussions.
The keynote address
was delivered by Professor Ruth Okediji, of Harvard Law School and Co-Director
of the Berkman Klein Center for Internet and Society at Harvard University. She
discussed copyright in the context of development. The history of intellectual
property in South Africa is both factually and theoretically complex. Questions
in this regard, she said, will lead South Africa’s process in determining what
the law is supposed to deliver. In terms of norms, constitutions and cultures,
the reality is that much of copyright law remains ill-suited for the
socio-cultural and political landscape in Africa. She then went on to highlight
that access to knowledge goods is crucial for development and that policy-makers
must thus deal with options that offer different outcomes in intellectual
property and copyright law. There is a complicated system of checks and
balances needed, she explained and there is tension between rewarding creativity
and remuneration and in ensuring diversity. It is all very well, she said, to
compose a creative work like a book, but if the book is simply warehoused and
nobody reads it, it doesn’t mean anything. We have to have both creation and
dissemination to promote social welfare. It is not just individual benefits to
creators that is important but also the interests of the public- shaping
debate, educating and having a vibrant public domain.
Subsequent to the
keynote address was a panel discussion consisting of Ben Cashdan, a filmmaker
and television producer representing RecreateSA, Justice Zak Yacoob formerly of
the Constitutional Court of South Africa, Professor Daniel Mashao of the
Faculty of Engineering and Built Environment at the University of Johannesburg
and Mugwena Maluluke, of the South African Democratic Teacher’s Union.
Cashdan expressed that
there have been threats by multi-nationals that their support of South African
work would be withdrawn if the Copyright Amendment Bill is passed. He indicated
that this is because although other jurisdictions have principles such as “fair
use,” South Africa adopting this will cause their deals to be less lucrative.
He indicated that we must not allow multi-nationals to threaten us. He further
highlighted that it is through monopoly power that there arises a situation of
exclusionary pricing- something we cannot accept. He pointed out that fair use
only allows work to be copied reasonably, so if, for instance, the work is
priced absolutely excessively. He said that whether use is fair is an enquiry
satisfied by answering questions such as: What is the nature of the original?
How much is used? What are the effects on the profits?\
Yacoob indicated that
on the basis of Constitutional prescripts that fair use is justifiable. We want
to improve upon the quality of life of all people- not only the powerful but
the majority. We have to look at where the majority of South African’s are
situated. They live in terrible conditions, he expressed. Colonial
dispensations were derived overly from freedom and on capital gain while the
Constitution is based on human dignity, equality and freedom. Importantly, he
said, the Constitution contains the right to freedom of expression- that is,
the freedom to receive and impart information. There is a dynamic between the
two. Most important, he illustrated, is that rights can be limited by law of
general application as long as the limitation is based on human dignity,
equality and freedom. Yacoob highlighted that we have a society committed to
improving the human condition- trying to achieve the appropriate balance. The
balance we get, he stated, develops a civilisation as we understand it and fair
use does do this through ensuring that people can access rights such as the
right to education.
Mashao discussed the
Fourth Industrial Revolution (FIR). He indicated that it is a fusion of
technologies producing new business models which produce new value systems. The
FIR has four components- digital, biological, physical and energy and the
environment. It will provide many opportunities for copyright, he stated. It
will enable, for example, the recouping of invested creativity, time, money and
resources. He highlighted that it is important to note that while copyright
supports creativity, it can also stifle innovation and that this is something
that could do with change.
Maluluke shared
experiences of children having one book between five of them at schools,
copying each other’s work because it was too hard for all of them to get a turn
with the textbook. He discussed the exorbitant price of textbooks and how many
of them are cheaper overseas. He stated that a point that has been well-noted
by United Nations Rapporteurs is that education has to be accessible. We need
to make sure that even students in the most remote of areas have proper access
to education. In South Africa, he pointed out, five companies monopolise 71% of
publishing. This drives up prices, making education inaccessible to poor
learners. In an analysis of what we need, he suggested that a number of factors
be taken into account: facet; numbers; experimentation; language; culture and
changing power relations.
In the discussion
subsequent to the panel discussion, questions surrounding collecting societies,
25-year reversion and royalties emerged.
The event was a
fantastic conversation-starter and provided deep insight into different
perspectives surrounding pending copyright reform. It is our hope that such
rigorous debate can continue around these important issues.
Brought to you by Afro-Chic.
Critics of South Africa's Copyright Amendment Bill Gather
This seminar took
place at World of Yamaha in Sandton. The venue, an auditorium on the premises,
was packed to capacity with over 300 participants, and proved to be an ideal and
well thought out choice to host the event, not only because of the huge turnout
but also the quality of sound during the panel discussions as well as the
entertainment in between.
Breakfast was served
in the foyer just before the seminar kicked off, and consisted of a tasty
variety of sandwiches, cold meat, salmon, cheese, fruit and even muesli with
yoghurt!
To kick off the
discussions for the day, a music video featuring various South African artists
singing “Vikela Mina”, which translates to “protect me”, resounded at the venue. Vikila Mina, inspired by President Cyril
Ramaphosa’s use of Hugh Masikela’s “Thuma Mina”, in his first State of the
Nation Address, is a cry to President Ramaphosa to protect the copyrights of
South African artists. The dominating views of the speakers and audience is
that the President should not sign the Copyright Amendment Bill because, according
to them, it is seriously flawed and will not protect, as the song title pleads. The
Bill, which has been approved by Parliament, has been submitted to President
Ramaphosa for his imminent approval, or rejection.
The seminar took the
shape of a discussion rather than a debate. The participants and panellists
consisted of a healthy mix of legal practitioners and creative minds from the
arts and entertainment industry, which resulted in discussions that were easy to
follow even for the layman.
Where the legal
experts shared on their experiences during the apparently rushed consultative
process with Government and the submissions they made, the creative minds from
the music and film industry gave practical examples of the challenges with the current
outdated current copyright legislation, and the impact the Bill would have on
their work, if adopted in its current state. The speakers in the third panel
focused on international perspectives, challenges and opportunities.
The “fair use”
doctrine appeared to be the most controversial aspect of the Bill, which if
approved, will introduce a US styled approach that the critics feel will be
counterproductive and have unintended consequences.
Though there was a
general consensus that there is a need for further consultations and proper
research and impact assessment before the Bill can be approved in the South
African context, there were a several participants who felt there had been
enough consultation and that Government had to come up with the amendments in
order to protect artists.
There was so much to
discuss that even a week’s seminar would not have been enough. These appear to
be the main takehome aspects:
- From a domestic perspective, the Bill in its current state is flawed and does not meet constitutional muster;
- The Bill fails to meet international standards in line with the Berne Convention and TRIPS, both of which South Africa is signatory to;
- The Bill has the potential to be best in class legislation especially for developing countries. Consequently, there is a need to look and consider in depth, other best practices and identify how to align with them;
- Missed opportunities which should have been addressed by the Bill include the so-called “value gap” which sees big digital providers benefiting at the expense of artist and authors, as well as the introduction of a private copy levy; and
- There is a need for further industry engagement with Government and to this end both legal stakeholders and industry must engage positively with Government.
For pics of the event, please check out the Sightings section here.
This post was brought to you by Afro-Elle.
Tuesday, 6 August 2019
Re-Create's Seminar on the Copyright Amendment Bill
Supporters of this important pending legislation in South Africa are convening over two days in Johannesburg and Cape Town respectively, through the invitation below. Re-Create, the association behind galvanising support for the Bill, have invited academic heavyweights to discuss "Decolonising Copyright". The term "decolonisation" can be contrasted with Friday's seminar "On a Knife's Edge" supported by the Copyright Coalition. Both have provocative titles; the term decolonisation has become a political mantra for change and liberation in South Africa, the other alludes to precarity, consequence and fear. In a heading, they summarise the emotion, importance and fierce lobbying for and against the Bill. Get your popcorn...
