Tag Archive | Charmaine van der Merwe

Major task writing new SA copyright law…

Copyright watershed times…

In what has been a gargantuan task amounting to having to virtually rewrite South Africa copyright legislation from scratch, a cross-section of industry players and legal experts have been studying existing copyright practices in business, the private sector and the artistic world.  All are surprisingly interlinked.

In nearly every avenue of artistic and musical creation, literary endeavour, publishing in all forms, consumer usage and misuse, the issue of copyright payments, licensing and the copyright principles arise, underwriting whole industry practices both collective and personal.

About time

Such a major legal re-write has been necessary in light of the country’s Copyright Act having not been updated since the early ‘seventies, even before the full impact of a computerised world world had affected reproduction, storage and the digital use of other people’s creative and intellectual  work.

However, a stage has at last been reached where most of the players seem to understand each other and consensensus is appearing.

Putting it together

Adv. Charmaine van der Merwe, Parliamentary Legal Adviser, has now advised the Portfolio Committee on Trade and Industry that the “building blocks are now in place” for final considerations on the tabled Copyright Amendment Bill which has been subject to months of public hearings, consultation and debate by stakeholders and parliamentarians calling upon expertise.

The latest version of the Bill has been the subject of discussion immediately Parliament opened on matters regarding the State of Nation Address (SONA) disposed of.  The major issue now being discussed are the exceptions which are granted on copyright use and whether to apply the principles used internationally of either fair dealing or fair use practices.

Major directions

There have been two distinct avenues of thought on the issue of copyright exceptions to be followed in South Africa, a subject which is not only divided by international thought on the matter – the quantity of case law precedent being one decider- but also which application is the better one for emergent economies.

In the case of South Africa, where the subject matter is being considered for the first time, there is a “clean and blank drawing board to write upon on”, say a number of legal experts, and whilst many of the old principles are being leant upon, “there is an opportunity to break with the past and create new opportunities that have arisen in both communications and usage.”

Two source routes

There are two tasks now facing Parliament.   One is the major task of grouping the various aspects of copyright into subject areas for individual input from experts, some involving hearings on just one subject, and a second task of considering the impact and legality of the final compilation of the Bill itself.

This will be undertaken with a panel of highly qualified experts selected, known for their expertise in copyright matters both from a legal aspect and a commercial viewpoint. Local and international implications will be considered by this panel.

Argumentative start

In a somewhat fractious atmosphere, early portfolio committee work included input from dozens of


parliamentary committees

such role players on many aspects, all of which  indicated that the first draft of the Bill was considerably off target in both legal terms and as far as commercial applications that would be applied as a result. Parliament soon recognised that divergent schools of thought applied to a subject not encapsulated in statute law for many years.

There were also two factions at war. Those who felt exploited and those that felt that whole industries should not be threatened. There was also obviously a need to tighten up on definitions and clarification of modern terminology.

Separate subjects

To summarize, the current situation is there is now to be considered the choice between the principles of fair use or fair dealing; a private copying levy and freedom of panorama; collecting society regulations; the issue of rights on commissioned work; and the functions of a tribunal to both regulate and discipline on copyright issues.

Other groupings probably to be dealt in the next session separately by specialised groups relate to orphan works where the originator is unknown or unrecorded; the important and separate issue of technology copyright; a short time spent on what is known as the “Copyright Act circumvention device” and the issue of “moral copyrights”.

Clash with IP

On the question of invasion into intellectual property (IP) rights law, Adv. van der Merwe said this was going to be a delicate issue, since translation and reproduction licences were being raised for the first time and there had to be no conflict with IP law, particularly the new Indigenous Knowledge Bill at present being passed through Parliament.

Once these processes had unfolded, then a Bill which had been considered clause by clause can be considered as a finalised Bill, not a draft, and in order for the matter to go forward the panel of experts who can dissect and recommend accordingly from an overall aspect. Whatever emerges will not be for lack of effort.

Top experts

The Portfolio Committee, under Joanna Fubbs, has agreed that the terms of reference of such a panel and who was to be selected are now a matter of urgency and invitations have gone out. Most of the experts had prior knowledge that their names had been put forward.

, who holds the Anton Mostert Chair of Intellectual Property law at the Stellenbosch law faculty, Adv. Andre Myburgh, Adv. Natasha Pather, Adv. Zodwa Gumede and Adv. Janice Nicholson are amongst the names finally selected and confirmed once Parliament has reassembled and the Committee has met again.

Further reports are to follow in ParlyReportSA

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