South African Government Conference Reveals Views On Draft Copyright Bill

ipwatch(by Linda Daniels for IP Watch, published under a CC BY NC SA licence)

Stakeholders from various positions of influence in the realm of intellectual property – including government – put a fine tooth comb through the South African Copyright Amendment Bill at a consultative conference called by the Department of Trade and Industry yesterday.

The one-day conference held in Johannesburg, South Africa on 27 August was called to further inform the refinement process of the bill. The Copyright Amendment Bill was published in the government gazette earlier this month and this opened a 30-day public consultation process. The Department of Trade and Industry (DTI) subsequently extended that deadline to 16 September.

Experts on royalty management and piracy issues as well as stakeholders in information and communication technologies, including expert contributors on education, research and access to knowledge, provided their perspectives and suggested tweaking amendments to the bill.

Judge Ian Farlam, the chairperson of the Standing Advisory Committee on Intellectual Property and former chair of the Copyright Review Commission, kicked off the conference as the first speaker. He reminded delegates that the bill was long overdue given that the last substantive amendments were made to the act in 1997 notwithstanding three subsequent amendments.

“We have lagged behind the rest of the world in important aspects,” said Farlam. “This bill is an attempt to play catch up.”

Judge Farlam made it clear that the bill has “room for improvement.”

Farlam said that in 2002, legislation was passed which amended the copyright act and allowed for performers who had not been receiving compensation to do so.

“I regret to say it took four years before the new regulation found its way into the government gazette…. Up to now the broadcasting companies have not yet paid a cent, the small retailers have not paid a cent,” said Farlam. He said that only “smaller retailers” are in the process of paying the fees owed to performers.

He added that there is an issue around the date from which royalties should be paid to performers.

“Part of the problem of the 2002 legislation was that it was defective,” he said. “In practice, the legislation was full of loopholes which were exploited to the full. We tried to produce a scheme that didn’t have loopholes and I am happy to see that a good deal of the bill has incorporated the recommendations.”

Farlam implored delegates to deal with the principles of the proposed bill and not to get distracted by the drafting of the bill.

He also shared his view with delegates that the current copyright tribunal body is “not an efficient body” and that it could be tasked with not only producing the right answers, but delivering timely rulings. He reminded delegates of the maxim ‘justice delayed is justice denied’ and concluded that “the maxim applied strongly to the tribunal in its current form.”

In a later panel discussion, the chairperson of the South Africa Music Performance Rights Association, Keith Lister, echoed Farlam’s sentiment when describing to delegates his wishlist of amendments to the bill from his association’s perspective. He added: “We have to create a tribunal that is managed by IP experts.”

DTI’s Perspective

Meshendri Padayachy, the deputy director for intellectual property at DTI, said that the motivation for the IP tribunal was that access to the judicial system proved difficult given that “not everyone has money” and that the tribunal is an attempt to allow everyone access to a dispute resolution system.

In her presentation, Padayachy gave a snapshot of some of the main amendments included in the copyright amendment bill.

With regards to collection of royalties/royalty management, the bill provides that, “there shall be one collecting society per copyright and per set of rights with regard to all music rights such as performance, needle time and mechanical,” said Padayachy.

With respect to the World Intellectual Property Organization Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, Padayachy said that the bill “makes provision for making accessible formats of a work to accommodate persons with disability. For all disabilities and not just the blind.”

The 2013 Marrakesh Treaty has been applauded by beneficiaries throughout the world for answering the need for wider access to special format works for visually impaired people.

MacDonald Netshitenzhe, the chief director of policy and legislation at DTI, elaborated further on the Marrakesh treaty’s backstory and government’s position on the treaty.

He said of the African Group, representing the continent’s interests at WIPO: “We demanded that treaty formulation is preceded by a regulatory impact assessment, instead of countries ratifying things we don’t understand and even if we do understand, countries are being cajoled to ratify to benefit their [developed countries] interests.”

”That time should come to an end,” he said.

Netshitenzhe added that “different countries come with different IP laws” and that South Africa should take best practice in other jurisdictions and apply it locally.

“The TRIPS agreement [World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights] is also Marrakesh treaty. We want a treaty that incorporates the interests of the blind and people with learning disabilities to be taken into account.”

“Somehow, it only went to the blind people,” he said. “We said that it would be wrong to give it only to one stakeholder. The way it is worded [is] ‘give to the blind, but other issues belong to national government to take up’. This bill [the copyright amendment bill] belongs to the Marrakesh treaty. I give you that background deliberately so that you know where we are coming from.”

On the sidelines of the conference, Netshitenzhe told Intellectual Property Watch that his comments did not mean the government would not sign the Marrakesh treaty. When specifically it would be signed was a matter for cabinet to decide, he said.

A DTI press release issued today summarised comments from Netshitenzhe and Farlam.

The Copyright Amendment Bill also deals with the re-sale of original works of art. It is an aspect of the bill that Judge Farlam disagreed with in his opening speech. Padayachy said the bill provides for artists to claim royalties when their original work is sold and that a collecting society will have to be established.

A controversial aspect, as determined by a diverse number of stakeholders speaking at the conference, refers to the bill’s stipulation on orphan works.

In her summary of the bill’s amendments, Padayachy said on the aspect of orphan works and exceptions and limitations that the bill provides that ownership of any copyright whose owner cannot be located or is deceased shall vest in the state.

“Provided that if the owner of such copyright is located at any time, ownership of such copyright shall be conferred back to such owner,” she added.

Coenrad Visser, professor in intellectual property law at the University of South Africa (UNISA), said that it concerned him that the current bill allows for author copyright vesting in the state where the author is deceased. He asked: “What about the life plus 50 rule?”

According to a DTI press release today, the Chief Director of Legislative Drafting at the DTI, Ria Nonyana-Mokabane, said, “inputs and raw criticism received from the public during the Copyright Amendment Bill public comment period will lead to a healthy and more improved Copyright Act that will change the lives of South African artists.”

She added that the Bill “would lead to an informed way of handling the long-standing issue of dealing with piracy in the copyright industry, the role of collection societies and the regulatory framework for needle time royalties,” according to the release.

Another press release was issued with comments from Deputy Director-General of Consumer and Corporate Regulation at the DTI, Zodwa Ntuli. She said copyright can unlock the potential of the country’s creative industry.

Fair Use, Fair Dealing

One of the main debates amongst panellists at the conference centred around fair use and fair dealing as well as rights of creators versus users.

Padayachy reiterated what the bill provides for in terms of fair use of copyright work.

“The bill allows for the reproduction of copyright material for certain uses or purposes without obtaining permission and without paying a fee and without paying a royalty. Limited circumstances have been provided for. Furthermore, this section stipulates the factors that need to be considered in determining whether the use of a copyright amounts to fair use. Temporary copying exception has been introduced as well.”

Tobias Schonwetter, the director of the intellectual property unit at the University of Cape Town (UCT) as well as the regional coordinator for Creative Commons weighed in on fair use and fair dealing during his address to delegates.

“Fair use and fair dealing … they are conceptually different,” he said.

“The debate is not about creators or users,” he added. “Most creators in most cases are also the users as well. It is an old fashioned notion.”

“How can we make our copyright laws fit for the digital age?” asked Schonwetter. “How do we create a legal framework that is sufficiently in support of future business?”

He added: “If you have a business model based on copyright is it really a future model? In times where copyright infringement is so prevalent. Copyright protection is not an end in itself. It’s a natural right in France but South Africa has a much more utilitarian approach. It puts a lot of emphasis on balancing the rights involved.”

Schonwetter applauded government for leading the consultative process on the bill, saying that “the transparency and openness needs to be commended here.”

Denise Nicholson, copyright services librarian at University of Witwatersrand, added the perspective that copyright exceptions are “necessary for libraries and archivist functions, particularly in the context of a developing country in a digital world. Currently, they are hamstrung in many of their outreach programmes and resource-sharing projects because of restrictive copyright law.”

The copyright amendment bill has been released against the backdrop of the national draft IP policy which was published in the government gazette in 2013. The policy aimed to remedy fragmentation by coordinating the country’s approach to IP matters on both a national and international level.

There is still no clarity as to when it will head to cabinet for approval.

Speaking on the sidelines to Intellectual Property Watch, Netshitenzhe would not be drawn in on the matter of when cabinet will see the policy.

“Cabinet ministers are the only ones who can make policies,” he replied. “Bureaucrats advise ministers. Our advice may be taken or not taken. When we go to cabinet they can deviate … but it will be an informed decision.”