Tag Archive | copyright amendment bill

Copyright Bill sits in President’s inbox

…..Copyright Bill at tipping point – yes or no?

30 May 2020 –  Major issues remain at stake with the Copyright Amendment Bill sitting with the Presidency for signature for some thirteen months. The Bill will overhaul the copyright and trademark situation in South Africa, not attended to in the statute book by amending legislation since 1976.

However, the substance of the Bill represents a lot more than tidying up an old piece of legislation but rather it changes the tenets and the whole basis of copyright in South Africa.  It rewrites whole sections of the Act to meet the circumstances of a digital world in music publishing, replay, transfer, copying, music rights and author’s rights, royalties and how they are collected.

It is, of course, all about money, otherwise there would not be so much fuss about the deadlock.

The big stick

Major industries are involved, particularly in the USA as far as the publishing, film and music world are concerned.    The Bill tweaks rules on many copyright and trade mark issues that affect a world governed by international copyright agreements.   The US has always been dominant on trade issue matters on this issue but in this case South Africa’s own vested interests into US markets with SA exports comes into play.

Precedent on copyright matters is a far bigger issue than the authors of the Bill, those who fought for local production and authorship rights over three years, ever imagined.   Looking back on the hearings and submissions made by over forty experts and stakeholder business entities to Parliament in those months, the message comes clearly through as a simple “I told you so”.

Nevertheless, the governing party has so far stood against conforming with US pressure, agreeing with SA lobby groups and calling upon the President to sign in the knowledge that SA is moving outside international trade norms and agreements, particularly the Berne Convention.

Mother goose

Oddly enough, in fighting with South Africa, the US is contrary to World Trade Organization’s (WTO) rules on this issue by not giving special dispensation developing countries, but the US has a record of disagreeing with the WTO on this matter, remaining equally fixed in its views. The “Mexican standoff” is now a major issue in US/SA relationships. When it comes to patents, copyright and protection of unlawful copying of trademarked products, the USA becomes a determined negotiator since trade and marketing innovation and the tenet of copyright protection on a global scale is what US commerce is basically all about.

The new law will involve moving to fair use conditions and clauses similar to US law, but there is great dissension even in the USA on fair use vs fair dealing approaches to copyright to the point of massive law suits involving Google and other internet platforms allowing open access to work that may be subject to copyright.

Blind alleys

SA in the past has followed the more rigid “fair dealing” principles adopted by more established copyright environments such as the UK.    The process of capturing and “re-communicating”  images and text raise multiple copyright issues particularly on the matter of whether providing or using a hyperlink to the original material is tantamount to an infringement of copyright.

committees

parliamentary committees

The hybrid SA version provides for rights to use excerpts on protected works for educational use  – a need for which exists in most developing countries. This inclusion has worried the publishing industry whereby whole works are pirated, duplicated and supplied. The new Bill also proposes extensions of protection for local creators which includes rights to royalties, limitations on unfair contracts, and reversion of all copyright assignments to creators after 25 years.

Turf wars

The Office of the US Trade Representative announced at the end of 2019 a review of South Africa’s eligibility for Generalised System of Preferences (GSP) benefits as a result of SA non-adherence.   The outcome of this still awaited but most local commerce and industry would prefer that SA dodges the heavy artillery and returns the Bill to Parliament for a version less confrontational.

The US administration took to its hardball approach on this specific Bill after it was petitioned by the International Intellectual Property Alliance, a private sector coalition representing large US entertainment companies. This is a powerful lobby in terms of influence with the US administration. Pitted against this, all local performer, artist and local film producers, educationalists and university academics feel differently and want the homegrown version passed by Parliament for signature to proceed into law.  Naturally it looks like a David and Goliath scenario, but the US administration has been through this hoop time and time again all over the world.

AGOA

The US GSP programmes meanwhile give extra tariff reductions to developing countries eliminating duties on 3,500 products when imported from one of 119 designated beneficiary countries and territories, which includes South Africa. The US normally provide a wording which satisfies both parties to proceed but not in the case of the proposed SA Copyright Amendment Bill.

At this stage, the SA Constitution says the President must either assent to and sign the Bill or refer it to the Constitutional Court for a decision on its constitutionality.   If the Constitutional Court decides the Bill is constitutional, the President must sign it. The general feeling is that the President would lose the battle.  The question is…… who blinks first.

The deadlock continues but for those who do not compose music, write songs, publish and print books and earn from publishing and music rights in SA but just want the economy and trade agreements not to be damaged, the wait is painful.  The choice for them is a no brainer.

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Parliamentary Overview 12 June 2019….

 

Changing the guard…  

Plenty of note for business has happened legislatively during the parliamentary recess but perhaps none so important as the re-structuring of Cabinet. As a result  there will be a change in the appropriate portfolio committees to reflect any changes and a consequent shift in portfolio responsibility for various Bills held over from the previous Parliament.    In the areas of energy, trade and industry and communications this will be particularly interesting of who gets to be the chairperson in the light of differences emerging within ANC structures.

Parliament will choose its portfolio committee chairpersons for the National Assembly and select committee chairpersons for the National Council of Provinces on 27th June, two days after the State of Nation Address ANC party chairpersons.  These appointments reflect how a government governs on policy and legislation. Through the chairpersons.

Read more..Parliamentary overview 12 June 2019

Posted in Agriculture, cabinet, Cabinet,Presidential, Energy, Fuel,oil,renewables, Health, Justice, constitutional, Land,Agriculture, Trade & Industry, Transport0 Comments

Draft Copyright Amendment Bill raises queries

Copyright Bill proposes revenues to state…

copyright graphicsent to clients 28 Oct….  Anomalies abound in the draft Copyright Amendment Bill, recently published for comment and now awaiting tabling in Parliament hopefully with a number of changes, say experts in the intellectual property industry.

The Bill primarily affects music, artistic and literary copyrights but the whole issue of patents, copyright and intellectual property rights are so intertwined that any changes will undoubtedly send up red flags up in various areas.

Government says in this instance it is trying to modernise the existing Copyright Act but as with any changes to established procedures that have existed for years, there are pros and cons that come with change it seems.

50 years after death

The draft Bill deals primarily with copyright of artistic, musical and literary work and most assume earphonesthat works of great composers such Brahms, Beethoven and Schubert are free of copyright, those geniuses having long since passed away. In fact under the existing Act, the author, composer or artist has copyright for life and then fifty years

The draft states both clearly and unambiguously that the ownership of all copyright held by individuals will automatically transfer to the state upon their death.

Until death do us part….

There is not the slightest indication of what body or entity is involved, other than the fact that the Bill is to be tabled by the Minister of Trade and Industry, meaning that DTI, or an entity controlled by it, would receive such, presumably the individual’s Estate being responsible for notifying DTI that they are heirs. The draft also states that government may never re-sell or pass on such copyrights.

The question to any casual observer is what happens to this money, at present collect by such bodies in doubtful manner by such bodies as SAMRO and passed to DTI? It is revenue and does it go to National Treasury, perhaps a fund for aged musicians, authors and artists even child education in the arts? On this the Bill is silent, no policy having been ever stated by any cabinet minister on such matters.

Another tribunal

In the absence of any new guides as promised on intellectual property in general, such having been promised by DTI in the form of a National IP Policy many months ago, more concerning is the establishment of an Intellectual Property Tribunal which is a case of “overkill” in dealing with this limited area of copyright and royalties.

Such a body may adjudicate on “on any application and on any legislation brought before it”, the draft supermarketstates.

On the whole, we have to assume that the majority of the draft Bill applies to individuals only, with the exception of the recording industry and literary reproduction industry, there also being certain clauses regarding End User Licence Agreements affecting software sales.

Criminalisation

Of concern though to many is the growing tendency to introduce criminalisation into legislation such as areas of BEE with fines normally reserved for more serious and harmful criminal police offences. In this case DTI have once again mentioned maximum jail and penalties of totally disproportionate periods and amounts.

To many, this Bill appears to have a lot more written in between the lines and prompts again many questions as to the direction DTI is taking with regard to international agreements, in this case the Agreement on Trade-related Aspects of Intellectual Property Rights.

It will be interesting to see what is finally tabled in Parliament for debate and what emerges from parliamentary public hearings

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