……article dated 5 October 2021…..
Comments on final draft called for….
The Portfolio Committee on Trade and Industry has now met on five separate occasions with the purpose of re-drafting portions of the Copyright Amendment Bill in order to meet the Presidential observation that the Bill is i unconstitutional in the light of its failure to gain wide enough acceptance from all communities. The Bill has been returned to Parliament by the President unsigned and therefore not law.
After the meetings in question. the proposed changes have now been published by Parliament for public comment and, in addition, the Bill is now to be sent on to the National Council of Provinces for comment and approval by all nine provinces as required by the President.
The Report of on the President’s reservations, after discussions with this team of constitutional experts, gave the main items of dissent as:
- The retrospective provisions (for royalty payments and remuneration) contained in the Bill would deprive copyright owners of property without sufficient reason and as these amendments had not been put out for broader public comment before the final version of Bill had been published, “it would therefore result in substantial and arbitrary deprivation of property”
- The provision for “fair use” dealings had not been put out for public comment before the final version of it had been published. “The changes made to this particular section were material to the scheme as a whole and the failure to consult, in the face of such materiality of the amendments, could render the provisions constitutionally invalid.”
- The Bill conferred substantial discretionary powers on the Minister in certain sub-sections which could well constitute an impermissible delegation of legislative authority
- Certain sections could be in conflict with the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performance and Phonograms Treaty, both of which had been signed by South Africa, although they are not yet acceded to.
- The Bill as it stood introduces certain copyright exceptions that may encounter constitutional challenges some of which may constitute deprivation of property and others may violate the right to freedom of trade, occupation, and profession.
- The Bill might not comply with international treaty obligations specifically in relation to the WIPO Copyright Treaty, the WIPO Performance and Phonograms Treaty, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise
South Africa’s copyright law has not been updated since 1976 which means that in the intervening period there have been no amendments at all to incorporate what is commonly termed the digital age and no changes to reflect the continual changing requirements of trade, business and industry nor the needs of the massive growth in publishing, music, film, television industries, nor the needs of the public and the state on matters related to education, recording and composition rights. Finally, the position regarding the transfer of information and rights on usages via the Internet has been unclear.
With copyright law in terms of trade relationships between countries remaining static, the call for clarity and revision has been around for over twenty years. Copyright for computer programs has been standard as 50 years after the first public copies were made; on literacy works for 50 years after death of the author; for sound recordings, tapes etc for 50 years from the day the work was first broadcast; and for films, 50 years from the date the first film showing. On music, as an example, royalties were paid to composers, artists and publishers at rates agreed between publishers by collection agencies, based upon procedures imposed by the industry representative entities.
The conversation on copyright matters is extremely broad and a revision of copyright law a complex legal matter, first attempted by department of trade and industry under past minister of trade, Dr Rob Davies. However, Parliament’s trade and industry portfolio committee, led by ANC chairperson, Joanmariae Fubbs , rejected the DTI draft and commenced a process of tabling a parliamentary Bill drafted by her committee with outside assistance from the Anton Mostert School of Copyright Law amongst others.
Arguments and differences have existed over a long period which have extended from the manner in which Google approaches copyright as part of the application of information sourcing to tertiary learning school needs with copied material for students; on computer applications, cell phone apps, recording and sale of tapes, discs etc in the entertainment industry and in respect of the written word generally and its reproduction in many forms.
Whilst copyright protects original work and is not to be confused with trademark or patent legislation, insofar as trade agreements and international trade all three are subject to particular concern as a tandem of issues. Copyright, patent, and trademark are all different types of intellectual property (IP), their protection all forming an essential element of international trade agreements between countries and in terms global agreements to which countries may join. Copyright protects published and unpublished original works, including works in literature, music, art, architecture, software, and choreography.
The draft Bill some two years ago, ran into heavy traffic when politicised by the ANC on the issue of proposals to pay composer rights backdated for local and domestic artists and composers whose works had been distributed but no payment made particularly those who were impoverished and unrecognised past their demise. The principal of backdated payments has now been rejected after an High Court decision but two years were lost on this issue alone.
Further troubles arose when amendments were proposed to make allowance for the copying or reproduction of copyright protected works for the purposes of educational and academic activities if the copying did not exceed the extent justified by the purpose. The Bill seeks to introduce a legal defence of fair use insofar as the reproduction and use of copyright protected materials for the purposes of ‘scholarship, teaching and education’ and for ‘expanding access to underserved populations’.
On this, the world wide book publishing industry has only recently relaxed after a long period of objection involving international legal support and lobbying now that a compromise wording has been found in the long argument with DTIC and government over what is seen by them as state educational needs in a developing country with sections of the community disadvantaged with formal education.
Fair use adopted, partly
When the Bill was first drafted under the care of Ms Fubbs, it gained much attention on its introduction of a hybrid version of fair use principles of copyright, having abandoned the time-honoured fair dealing process which had applied to what is often termed loosely as “commonwealth countries”. Fair use, as adopted in the USA, permits limited use of copyrighted material without having to first acquire permission from the copyright holder; fair dealing is use through limitation with exceptions to the exclusive right granted by copyright law to the author of a creative work.
Copyright law is also is a basic engagement factor in trade relationships between countries and investment that crosses borders. Watching throughout has been the international trading world who insist on dealing only with countries subject to such agreements as the Berne Convention and who conduct trade with nations who implement copyright law subject to international practice within their own own countries.
The US disagreement with South Africa over the AGOA trade agreement with SA is well known and arose from a clumsily written portion of the Bill earlier rejected by President Ramaphosa, USA trade bodies and the Administration still being far from relaxed on the issue having heard of the Bills new amendments.
After three years of drafting, the Copyright Amendment Bill was originally passed by the National Assembly and then sent to the President for assent in March 2021. The statement came in the following September from the President’s Office stating that he would not be signing the Bill into law, the letter returning the Bill to Parliament giving a number of reasons the major concern being that the Bill had not gained a wide enough audience for approval. The letter stated that in all probability therefore it was unconstitutional as a result.
Bill to provinces
Consequently, the Bill has now been re-tagged by the Committee on the advice of the Parliamentary Legal Advisor’s Office , as a Section 76 Bill meaning that the Bill now goes to the National Council of Provinces for further hearings in all nine legislatures, a somewhat time-consuming process but necessary say those who see the regional domestic issues raised in the Bill as paramount.
Of the eighteen instances drawn up by the President for consideration, a few were technical corrections that did not pose a problem and other changes representing recommendations emanating from public submissions. New clauses and definitions of the expressions “authorized entity”, “broadcast” and “lawfully acquired”, as well as references to the three-step test contained in the Bill, were attended to.
The task set by the President has therefore now been completed and final debate expected in February/March 2022. The tandem Performers Protection Amendment Bill requires only a few amendments, all of which could be handled constitutionally without further parliamentary processes. In particular, there is no need for public comment in this instance.