[by Charlie Fripp, first published on htxt.africa on 7 July 2016]
After a series of public consultations and written submissions, South Africa’s somewhat controversial Copyright Amendment Bill will be put before parliament this month. The Bill has been both praised and criticised by activists at the Electronic Frontier Foundation, as its effects are potentially far-reaching. Minister Rob Davies in the Department of Trade and Industry made the announcement through a Government Gazette, published on 5th July. “Dr Rob Davies, Minister of Trade and Industry intends introducing the following Bill into Parliament during July 2016,” the Gazette reads, after which it lists the Copyright Amendment Bill and the Performers Protection Bill. The Bill aims to overhaul the copyright law in South Africa, but perhaps the most controversial aspect of it centre around orphan works and the duration of copyright for creators. Under the proposals, copyright on original works can be claimed by a performer or artists for their entire life and, by their estate, for 50 years after their death. Dr. Tobias Schonwetter, Director at UCT’s IP Unit (Faculty of Law) and Regional Coordinator (Africa) for Creative Commons, told htxt.africa that while the summary of the Bill as contained in the notice in the government gazette and the text in the the summary section of the Bill from last year has remained largely unchanged, there is a difference in language. “Two noticeable changes are (1) that the Bill now speaks of the ‘protection of authorship of orphan works by the state’ instead of the protection of ‘ownership’ (the state’s claim of ownership certainly was one of the most criticised elements of the previous Bill), and (2) that references to the protection of performers and producers have disappeared,” said Schonwetter. “These elements have most likely been moved (as they should) into the Performers Protection Bill, which, according to the government gazette, will be introduced into parliament at the same time as the Copyright Amendment Bill,” he said.
However, there is no real knowing what has changed, and Dr. Schonwetter is confident that another round of public consultations will take place. “We don’t know the content of the revised Bill but we expect that the new Bill will uploaded to the Dti’s website before the end of this month. Parliament will then hold public hearings in August and September 2016.” Originally, public comments on the Bill were scheduled to close on August 27th, but this was extended until September 16th to allow for more interested parties to voice their opinions. In an article last year September, Dr Schonwetter, outlined a few of the 49-page Bill’s most pertinent points. “This Bill tackles a number of highly complex issues that require consultation with those most affected by the changes – authors and users of creative materials alike, and a proper consultation process takes time. We have waited for many years for a revision of our outdated Copyright Act,” he told htxt.africa at the time. After the Bill has been introduced into parliament, it will need to be referred to the Joint Tagging Mechanism. The Justice Department’s website, explains the legislation thus: “The first important step, after a Bill has been introduced, is for the relevant Bill to be referred to the Joint Tagging Mechanism (“JTM”) for classification into one of the above categories. If a Bill does not clearly fit into one category, or if it fits into more than one category, it is usually redrafted or split into more than one Bill” It also states that if there is (was) the need for a public consultation period, (which the Copyright Amendment Bill did go through), “the members of the relevant Portfolio Committee are then tasked with considering and debating the Bill in order to determine whether they are satisfied with the provisions of the Bill.” Once that has been concluded, “the Portfolio Committee submits the Bill, together with a report, to the National Assembly for debate (called the second reading debate) and a vote. If the National Assembly passes the Bill, it is referred to the National Council of Provinces for its consideration.”