…..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.
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.
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.
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.
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.
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.