Why SA's copyright amendment is still not right
The Copyright Amendment Bill looks good in theory, but would simply not work in practice, writes Tammi Lea Pretorius
The Copyright Amendment Bill, first published in 2015 for public comment, was predominantly met by criticism.
While it was clear the overall intention of the bill was to be commended, the legislation seemed good in theory and even looked good on paper at first glance, but would simply not work in practice. It was difficult to unpack and understand when considered in further detail.
A revised bill has now been tabled in Parliament and while a number of old issues have been tackled, the drafters have managed to either retain or even create a number of new issues which still need to be tackled.
First, what’s right with the revised bill? For starters, it’s a lot easier to read. Although it does still contain portions that are convoluted or poorly worded and could be further refined, overall the arrangement of the bill makes a lot more sense.
It contains new provisions relating to the general exceptions regarding copyright protection of computer programs and, on the face of it, these exceptions are to be welcomed.
Initially, a large portion of the bill contained provisions relating to a new type of work, namely "craft works" (which was already covered by the definition of "work of craftsmanship"), and provisions relating to performers’ rights that should have been (or were already) dealt with in the Performers’ Protection Act and Performers’ Protection Amendment Bill (which has been published for public comment).
The bill also contained provisions relating to certain obligations being placed on the broadcasting industry. These were not appropriate and have been removed.
The initial bill proposed that copyright in an orphan work (a work for which the rights holder cannot be found) would vest in the state perpetually. Thankfully, this too has been removed.
So what’s still wrong with the bill? The drafters refer to "users" throughout the bill as though such "users" are rights holders themselves. The term appears to often be used interchangeably with other terms, such as "author" or "rights holder" and it appears that "users" (who have not been defined) can now claim a royalty despite the assignment of copyright. This causes confusion and could potentially have disastrous consequences if it remains in the bill.
Although the resale of royalty right is now limited to artistic works, the definition of artistic works is so broad that the resale of royalty right would even apply where the copyright in logos created by graphic designers are used as trademarks that subsequently obtain a substantial amount of goodwill.
The graphic designers would arguably enjoy an "inalienable right" to receive royalties in terms of this provision.
In some portions of the bill, the principle of national treatment appears to have been ignored. This principle is one of the cornerstones of copyright law and cannot be overlooked.
The bill now also refers to "fair dealing" and "fair use" almost interchangeably, despite the fact they are two different legal concepts.
Assignments of copyright remain limited at 25 years, after which the copyright vests in the last assignor
Textbooks that "cannot be obtained at a price reasonably related to that normally charged in the country for comparable works" can now be wholly reproduced without permission. However, what constitutes a reasonable price remains a mystery.
The bill seeks to restrict commercial contracts unduly in a number of provisions. Assignments of copyright remain limited at 25 years, after which it appears the copyright will vest in the last assignor. If it was the intention of the drafters that after 25 years the copyright would be returned to the author, this won’t be the case if more than one assignment has taken place.
So, if we ignore the catastrophic effect of replacing a copyright owner’s ability to assign a work with a 25-year exclusive licence (which is effectively what the drafters are doing), what is the point if it may not even benefit the author?
The list does go on and although some headway has been made, there is still a lot that needs to be tackled before the bill is ready for adoption.
Members of the public and stakeholders are invited to submit their comments on the bill to the portfolio committee on trade and industry by June 30.
• Pretorius is an attorney in the trademark department at KISCH IP