Friday 29 November 2019

Afro Chic

Questions and answers surrounding the Copyright Amendment Bill

The Copyright Amendment Bill of 2019 (CAB/the Bill) in South Africa raises many questions surrounding how this piece of pending legislation will function if it is passed into law in its current form. The Bill has caused much controversy among both creators and practitioners and it is important that parties speak out with a view to clear the air and enhance understanding of the possible reforms. Denise Nicholson of the University of Witwatersrand provides a series of questions and answers pertaining to general features of the Bill and the controversial doctrine of fair use. In the interest of disclosure Denise is an active supporter of the CAB in its current form.

The questions posed were the following and you can click here for the full set of answers.

For additional articles and posts on the CAB click here.

General questions on the CAB:

Where can one find the latest version of the Copyright Amendment Bill?
Did any international, regional or domestic policies, documents or research form the framework of the Copyright Amendment Bill?
What was the Farlam Copyright Review Commission (CRC)?
Is the SA Bill in conflict with our international IP treaties?
Is the Bill compliant with the 2013 Marrakesh Treaty?
Is the Bill unconstitutional?
Was the public given adequate time to participate in the process of CAB?
Why was the copyright term not extended to 70 years in the Bill as many other countries have done?
Is the clause on unenforceable contracts legal?
Does the Bill amount to expropriation of local content without compensation?
Will the Bill limit the right to freedom of trade, occupation or profession as provided for in Section 22 of the Constitution?
Will the Bill lead to the Minister of Trade and Industry being able to prescribe the terms of publishing contracts, taking bargaining power away from authors?
Will authors/creators be affected by regulation of collecting societies?
Does reversion of assigned copyright after 25 years negatively affect authors?
Does Section 12B (1)(a) in the Bill encourage plagiarism?
Is the exception for course-packs for educational purposes unique to South African copyright law?
Does the Bill protect data?
Does the Bill allow text and data mining?
Why is the Bill important for all stakeholders?
Does the Bill enable SA to benefit from the 4th Industrial Revolution?
What is Parallel Importation?
Are Parallel Importation Restrictions (PIRs) prescribed in international intellectual property agreements?
Why has the Bill not included provisions for content filters, similar to the recent EU Directive?
What are the President’s obligations with regard to a Bill that has been approved by the National Assembly and the National Council of Provinces?

Questions on the doctrine of fair use

Why has the Bill adopted concepts such as fair use, which originated in other countries?
Will fair use lead to greater recourse to the courts and a dependence on U.S. jurisprudence, causing unnecessary financial problems for authors or publishers?
Under fair use, can a whole textbook be copied and 2000 copies be made for students, without permission?
Are the provisions for fair use in SA Bill much wider than fair use in the U.S.?
Should the fair use provisions in the Bill be accompanied by statutory damages?
Does the PWC Report quoted by rights owners present the true picture about fair use and other provisions in the Bill?
What impact did ‘expanded fair dealing’ (not fair use) have on the Canadian publishing industry?
Did the introduction of fair use negatively affect the publishing industries of countries that adopted it?
Do transformative uses of copyright works compete with the market of the original work of the authors and publishers?
Will every case relating to fair use have to go to the courts for a decision?
Was fair use recommended in the WIPO Study commissioned by the DTI in 2011?
What does the Handbook of South African Copyright Law say about fair use?
Does the Australian Law Reform Commission's Report 122 (2014) entitled "Copyright and the Digital Economy" say anything about fair use?
What is New Zealand’s approach to fair use?
Where can one find more information about fair use?

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Image credit: Iñaki del Olmo 

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