Picture: ISTOCK
Picture: ISTOCK

It would be remiss of the National Council of Provinces (NCOP) to approve the Copyright Amendment Bill on Thursday despite heavy opposition to the draft legislation.

If approved at the NCOP’s plenary session, the bill, which is aimed at ensuring fair compensation for publishers, artists and film producers, will be referred to President Cyril Ramaphosa for final sign-off.

The president, who is said to be well aware that there are major concerns surrounding the bill, including that it could hamper his investment drive, could have his hands tied.

If he is unhappy with it, he could send the bill back to parliament for certain points to be reconsidered, though the NCOP could send it straight back and essentially force his hand. In that case, his last option would be to challenge it in the Constitutional Court, an unlikely scenario considering his push for unity.

While the EU looks to uphold the rights of its content creators, SA seems determined to weaken them.

A more likely scenario is that the bill will sail through uncontested, only for certain aspects of it to be challenged and possibly interdicted by industry bodies in SA’s highest court.

Some lawyers say that opponents of the bill will have a strong case. For one thing, the legislation’s “fair-use” framework seemingly allows for the expropriation of intellectual property without compensation. The framework is employed in the US, where courts can award hefty punitive damages in copyright-infringement cases. No such options exist in SA.

Peter Wasserfall, general counsel at education publishing company Pearson SA, said the onus will fall on authors and other content creators to prove that the use of their intellectual property was not fair — “a costly and lengthy process for many in the creative industry”.

While adopting the fair-use framework “may seem noble”, the ramifications for SA’s knowledge economy “have not been properly considered”, Wasserfall said.

To some, SA should rather be following the example of the EU, where members of the bloc’s parliament have approved draft rules that will force online platforms such as Google and Facebook to institute measures preventing users from illegally sharing copyrighted content.

While the EU looks to uphold the rights of its content creators, SA seems determined to weaken them.

Another constitutional argument against the bill is that it says film and music producers must pay retrospective royalties to all incidental performers — such as back-up dancers in a music video — they have worked with in recent decades, even if those performers were paid an upfront fee at the time.

This means the state wants to tear up past contracts and replace them with its own, even if the terms of the original had been agreed upon in good faith.

Other grounds for a challenge, legal experts say, include that the bill was incorrectly introduced as one that would not affect the provinces, when it clearly would. The Western Cape film industry, for instance, could lose foreign investment if the legislation causes Hollywood to look elsewhere.

Some in the industry say the legislation would only benefit multinational technology platforms such as Google, as well as the SA government, which would be able to access and reproduce educational content without paying for it. This, they say, could explain why the state is seemingly rushing the bill through and ignoring its critics.

The NCOP should carefully consider the unintended consequences the bill may cause, such as the potential that SA schools will one day struggle to find local textbooks, since authors may be unwilling to put pen to paper if their works can be copied for free.

Even if the bill is interdicted, approving it in parliament could cause immediate harm to SA’s creative industry. Foreign film and music producers have plenty other, friendlier jurisdictions to choose from.