….posted on July 13 2020….
Hung by its own petard: Copyright Bill
Threatened not so much by the US administration, as Cabinet advisers would like us to believe, but more probably actioned more as per the presidency statement because of incompatibility with international agreements, President Cyril Ramaphosa has made his long outstanding move with regard to the Copyright Amendment Bill, was sitting with him for over a year for assent.
Correctly, we believe, he has returned the Bill to Parliament in the light of the Bill’s constitutional and legal deficiencies, particularly in respect of non-compliance with the international “3-step test” of the Berne Convention and WTO Agreement on Trade Related Aspects of Intellectual Property Rights
Long time coming
This delays further the implementation South Africa’s much-needed revised copyright legislation which has been stuck in the same groove with regard to royalties since before the digital age. But then the Presidency also sat on their hands for 13 months before deciding on the matter, a decision which for most in business and industry should have been a complete no brainer.
Sad it will be for academics and educationalists who will remain with standard limitations on published works and sad also we understand for local performers and artists but, in the case of the latter grouping, this we admit is outside of our scope and brief.
Most of the delays so far have emanated from an overwhelming and misguided socialist belief that the Bill, as it stood according to the tenets of the governing party and particularly the beliefs of the previous Trade and Industry Minister, Rob Davies, that the Bill should introduce an emphasis on the “protection” of local artists and performers, a matter which seemed well worth to them a disregard for international copyright norms.
As the Bill is to be returned to Parliament, the delays will obviously be compounded.
Where we were
The Copyright Amendment Bill and the Performer’s Protection Bill as tandem Bills have both considered at the same time by Parliament’s Trade and Industry Portfolio Committee, both dealing with the same broad subject but both by their names dealing with separate issues. By far the major issue was the matter of international copyright agreements and hence it was the Copyright Amendment Bill that came into the public eye because of international trading issues.
The view was originally espoused by Joanna Fubbs, stalwart and ANC chairperson for many years of the Portfolio Trade Committee on Trade and Industry that local performers and educational bodies were injured by the extensive international controls on copyright matters. She personally took on the job of drafting the Bill with an emphasis on this subject, calling for help with various committees of experts but at the same time, as was called for, drafting a Bill which contained the tenets of a new approach to copyright matters.
She was undoubtedly driven by her beliefs that that the SA music and publishing industry was largely ignored, and she referred regularly to “well known SA artists and performers who had died penniless”. The position was even reached a point where a submission on the Bill was made in song by one grouping to MPs, an extraordinary moment,
Although it was generally acknowledged that local bodies in South Africa in the past were not famous for adherence to internationally accepted copyright norms ,particularly following sanctions by the Free World in years previous, it was agreed that a tightening up of this process had to happen and that copyright collection agencies, although not much liked by small business, were a part of the generally accepted process of royalty governance.
It was agreed by both government and business that something had to be done urgently about the fact that the existing Copyright Act had not been updated since 1976
Started by DTIC
The first draft on the subject from the Department of Trade, Industry and Competition (DTIC) was rejected outright by eminent legal opinion, including that of the well-known Stellenbosch University, Anton Mostert School of Copyright Law.
This original draft, in the opinion of many legal experts, introduced “crude wording on the de-colonialisation’ of issues on royalties”, views which were only slightly watered down in subsequent years of endless and boring re-written versions whilst the Bill progressed under the two sub-committees formed by Joanna Fubbs.
Probably to stay in new Bill
The process resulted in a locally invented “hybrid” compromise wording regarding royalty usage, drawn up from the international norms of ‘fair use’ and ‘fair dealing’ principles of copyright application. The parliamentary authors felt they had achieved a result that would result in better protection of local author’s and performer’s copyright and a fair slice of royalties.
The point was, however, that the World Intellectual Property Organisation already provided latitudes with regard to the publishing industry in this regard but Fubbs persisted with her draft, fired by belief that South African educators were being denied educational opportunities by an over-zealous and, in her opinion, a somewhat pernicious publishing industry.
Book publishers then complained to the US Intellectual Property Association, which escalated by circumstance into a threat to South Africa in respect of GPS benefits under AGOA. Such produced a major moment of unhappiness in Trump/SA relationships. One sensed that for some thirteen months whilst the Bill sat for assent, President Ramaphosa did not know which way to jump, although perhaps Covid 19 pre-occupation must have played a part in the extraordinary delays.
With President Ramaphosa now returning the Bill to Parliament, it is important to understand why the Bill is returned and what this implies. The process now could be lengthy and somewhat torturous.
Provincial and local input
The Cabinet statement merely states, aside for concern for visually impaired persons, that both the Copyright Amendment Bill and the Performers Protection Bill had been incorrectly tagged as Section 75 Bills in terms of the constitutionally prescribed process for parliamentary legislation. However, the President is of the view that the Bills concerned are in fact Section 76 Bills, given that they affect cultural matters. To business, this remains a blind alley.
Section 75 Bills, which categorized the previous Bill, require just the mere acknowledgement of the National Councils of Provinces, but Bills tagged as Section 76 require a mandate from all nine provinces, and in some case cases provincial public hearings in each of the nine. By returning the Bill on the basis of not being tagged correctly, this possibly means that as well as the Copyright Amendment Bill being altered and re-worded, the result will have to be considered by all provincial legislatures as well.
We expect that there will be a continued attempt to champion legislatively “local user rights” in a compromised form, something that is mostly foreign to all international copyright statutes and agreements. At the same time, we do not expect any Copyright Amendment Bill to be passed any time in 2020 and if by July 2020, this will be going some.
Nevertheless, what we can expect is a Bill more along lines that the World Copyright Organisation would expect, the book publishing industry will want, and the US music and film publishing is used to seeing on the world stage. It is assumed that Minister Ebrahim Patel will gazette a new draft for public consideration, DTIC having learnt much in the four years of process.