In what will come as a surprise to many, the South African Department of Trade and Industry has just published the Copyright Amendment Bill 2015 for public comment.
The Bill is clearly informed by 2011’s report by the Copyright Review Commission as well as the Draft National Policy on Intellectual Property of 2013 and contains some sweeping amendments to our geriatric Copyright Act, the amendment of which has been long overdue.
Some of the more significant amendments are as follows:
- The introduction of a new class of works eligible for copyright, being “craft works” such as pottery, jewellery and folk-art;
- The introduction of an EU style resale royalty right for artistic works in terms of which artists are to be afforded royalties whenever their original works are resold (section 6);
- The addition of an exception to infringement for non-commercial translations and provision for obtaining a licence to make a translation of a work from the Copyright Tribunal against payment of “just compensation” (section 14 and Schedule A);
- The introduction of a “fair use” exception, albeit only in limited circumstances such as parody, criticism, professional advice etc. Interestingly, the four well-known US factors for fair use have been incorporated, in addition to one other (section 14);
- A provision that appears to put an end to brand holders restraining parallel imports (grey goods) through copyright infringement proceedings (see proposed section 12A(7)) inserted by section 14 of the amendment bill);
- The wholesale inclusion of the temporary copying exception included in article 5 of the EU Copyright Directive (section 15);
- Exceptions for libraries, museums, galleries and people with disabilities (sections 22);
- The creation of moral rights for performers and some apparent repetition of rights already granted to performers in terms of the Performers’ Protection Act (section 24);
- Provisions for the licensing of orphan works, including the assignment of all orphan works to the state (sections 25 and 27);
- A provision providing that any copyright owned by the state cannot be assigned (section 26(a));
- Providing that all copyright assignments shall be valid for 25 years only (section 26(b));
- The creation of a whole host of new criminal offences, including one for a failure to pay royalties (section 28);
- The criminalisation of technological protection measure circumvention, which is already criminalised by section 86 of the Electronic Communications and Transactions Act (section 29) ; and
- An interesting provision that outlaws contractual provisions that purport to restrict or prevent any conduct that would not infringe copyright, e.g. contractual provisions forbidding conduct that would otherwise be covered by an exception. This is particularly relevant to software End User Licence Agreements (EULAs) that often restrict on-sale of the particular software package, where this would not ordinarily infringe copyright. (section 37).
The Bill is open to public comment until 26 August, but given the breadth of the amendments, I suspect that far more time will be required!
Correction: The deadline for public comment was previously stated to be 27 August, as per the Government's website here. Andrè Myburgh has however astutely pointed out that the correct deadline is 30 days from the publication date, making the deadline 26 August by my calculation.