The Copyright Amendment Bill: Where are we now?

The process of law reform in South Africa is a long and winding road often convoluted and at times bewildering. By the time a Bill makes it to Parliament there ought to have been adequate research, analysis and consultation surrounding the document and the legislature should have satisfied itself that the Bill in question can pass constitutional muster and is within the purview of international law prescripts. Once it reaches the President the ideal is that all controversy should have been quelled and the document should be an implementable product promising fair and just outcomes for all affected by it. The question arises as to whether the Copyright Amendment Bill amounts to such a product. Many do not appear to think so. Many do.

South African copyright legislation is in the region of 40 years old and is consequently in dire need of updating, in part to bring it into the digital age. The Department of Trade and Industry undertook this task with an important catalyst for doing so being the 2011 Copyright Review Report. This report made detailed recommendations as to how to improve the situation of a spectrum of artists in the music industry.

According to Stephen Hollis, creatives spanning across different sectors became enthusiastic about possible reforms. When the Bill was revealed, however, there was an immediate furore with wholly unexpected provisions having been introduced, stated Hollis. These included the introduction of “user rights” allowing for equal sharing of royalty distributions as well as widely encompassing copyright infringement exceptions. The Bill also introduced the doctrine of “fair use” allowing for the sharing and reproduction of works under various circumstances and in various settings. It has been strongly argued that this prejudices the rights of South African creatives and that it could have many unintended consequences. Many of those presenting at the seminar share a similar view.

These criticisms are not shared by all. Proponents of the Bill, for example, argue that the "fair use" doctrine has been around for much time in the United States and elsewhere, and future proofs the legislation; not only because there is a body of useful precedent but also because it allows time to shape the law as technology improvements and new business models, for example, increase the scope for nuances not yet contemplated.

Denise Nicholson, who generally supports the Bill, explains that Dr. Owen Dean in his Handbook of SA Copyright Law (paragraph 9.2.3, on page 1-96) posits that “the America and Australian approaches to fair use are common-sense and reasonable and should be followed by the South African courts". She goes further to list answers to some of the other main criticisms/supporting notions:

·         The cost of accessing academic research is way too high. This must change.

·         Open access is a development issue – the status quo needs to be challenged

·         Fair and Balanced Copyright Law Facilitates Access to Information for All

Denise’s views are not alone. The IP Unit (The University of Cape Town Intellectual Property Unit) share similar sentiments. One of their most recent posts (see link) quotes William New and promotes a seminar advocating the decolonization of Copyright i.e. a move away from the British system which is what the Bill does in some respects). Whilst decolonization appears to be a strange concept (copyright emanates from Britain and so one wonders whether the entire concept of copyright itself is now debate), the IP Unit does appear to support the Bill generally.

The Bill was passed by Parliament and the National Council of Provinces and was sent to the office of the President in April 2019 for signature. On the 16th of July, the Coalition for Effective Copyright petitioned the President’s office to prevent him from signing the Bill. The Coalition for Effective Copyright “is a group of stakeholders from publishing, music and other creative sectors, who have come together in opposition to the Copyright Amendment Bill.” It represents the following groups:

Association of Non-Fiction Authors of South Africa

Animation South Africa

Independent Black Filmmakers Collective

Music Publisher’s Association of South Africa

Publisher’s Association of South Africa

PEN Afrikaans

Recording Industry of South Africa

Visual Arts Network of South Africa

Writer’s Guild of South Africa

In its petition, and as set out in its press release the Coalition argued the following:

-          The Bill has been tagged as a Bill not affecting the provinces. This is incorrect and in and of itself is a reason for it  to be set aside on the basis that it does not accord with the prescripts of the Constitution.

-          The Bill amount to “retrospective and arbitrary deprivation of property,” which contravenes section 25 of the           Constitution.

-           The Bill delegates legislative authority to the Minister of Trade and Industry in an unconstitutional manner

-           There was not adequate public consultation on integral features of the Bill

-           The Bill “violates the rights to freedom of trade, occupation and profession”

The Coalition also support tomorrow’s seminar. This has been a cause for concern as some see the seminar as a platform for promoting a certain agenda where the audience may be deprived of views that are important. The organizers explain that this is not the intention and that they intend to promote a robust and balanced discussion. Afro-IP certainly hopes to ventilate views on both (the many) sides.

Brought to you by Afro Chic, photo credit Samuel Zeller