Title: Copyright reform or reframe?
Authors: Myburgh AF; Blignaut H; Griffiths W; Hollis S; Le Roux S; Pretorius TL; Rengecas T; Salmon O; Steyn C
Juta Publishers
A lot has been written about the Copyright Amendment Bill and the Performers’ Protection Amendment Bill since they were first introduced to the public, initially as one bill in 2015, and then – following severe criticism from the legal fraternity and creative industries of the inept drafting and problematic provisions it contained – as separate bills in 2017.
Alas, the concerns continue.
A noteworthy new publication on the topic was published by Juta as a flipbook which is available online for anyone to read free of charge. In Copyright reform or reframe?, the co-authors deliver exactly what the subtitle of the book promises: a critical legal analysis of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill.
Given the complexity of the subject matter, the prolonged history of consultation, and the various problematic provisions of the bills, the authors did well to deliver such a concise yet comprehensive analysis, weighing in at (only!) 165 pages. It is well worth the read for anyone looking to enlighten themselves about the implications of the current proposals for copyright reform in South Africa.
For the purposes of this discussion, I have invited Owen Dean to share his thoughts on aspects of the book. Dean is an intellectual property law expert, with decades of experience in trademark and copyright litigation and opinion work. He is also the author of the Handbook of South African Copyright Law, and professor emeritus of intellectual property law and a research fellow at Stellenbosch University’s law faculty.
juta.co.za/pdf/22647/
Catrina Wessels (CW): Thank you for your time, Professor Dean. Firstly, would you please comment on the choice of format, a flipbook that is available online and free of charge? Your own book of essays on the Copyright Amendment Bill, A gift of multiplication, was also published in this format in 2021 and is available here.
Owen Dean (OD): It is useful to have a flipbook version of the work available free of charge, but I believe that there is considerable merit in having the book available in hard copy as well. The primary persons at whom the work is targeted are government officials and parliamentarians. I feel that such persons are more likely to consult a hard copy, particularly where the work is of a complex nature, as is the case here, and where cross-referencing is probably necessary. The target market may not be attuned to processing and digesting lengthy and complex material online. This was the reasoning behind my compilation of essays being published in hard copy in addition to electronically.
CW: The co-authors of Copyright reform or reframe? are all specialist intellectual property law practitioners affiliated with the South African Institute of Intellectual Property Law (SAIIPL), an industry body with a clear interest in seeing sensible and rational copyright legislation prevail in South Africa. Indeed, SAIIPL has been engaging constructively and critically with the bills throughout the legislative process to date, and the nine co-authors mentioned here all contributed to SAIIPL’s comprehensive and authoritative submission to the National Council of Provinces in January 2023, which is available here.
The writing team behind the book is: André Myburgh, who previously served on a panel of experts to advise the Portfolio Committee on Trade and Industry on an earlier draft of the much contested Copyright Amendment Bill, Herman Blignaut, Werina Griffiths, Stephen Hollis, Salomé le Roux, Tammi Lea Pretorius, Tracey Rengecas, Owen Salmon and Christaan Steyn.
While the content of the SAIIPL submission forms the basis of Copyright reform or reframe?, it has been expanded to include relevant historical background, extended sources to substantiate facts recited and conclusions reached, and commentary on provisions not raised in SAIIPL’s submission. Indeed, the issues that are covered in this publication are wide-ranging. Overall, what makes this book a valuable addition to the record of and discourse about the Copyright Amendment Bill and the Performers’ Protection Amendment Bill?
OD: The authors of the book are well known to me as persons who have knowledge and experience in the nature and content of the law of copyright and in dealing in practice with copyright issues. Their views ought to carry considerable weight. In my experience, one develops a proper in-depth knowledge of copyright only through working with the law.
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In my experience, one develops a proper in-depth knowledge of copyright only through working with the law.
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Regrettably, many of those who have commented on the bill and whose counsel government and parliament have sought, have at best some theoretical exposure to the law and, in particular, have scant experience of enforcing it in practice. Their knowledge of the subject is often superficial and even misguided. I feel that the powers that be have been misled in many respects by their advisers. The book, on the other hand, tells the story as it is and expresses sound and valid views. The legislators can obtain an accurate picture from it and dispel some of the myths that have been presented to them. It is, indeed, a compendium of good and valid advice on the bills.
CW: Copyright reform or reframe? is aimed at raising awareness about the problematic aspects of the bills among the legal fraternity, not necessarily the general reading public, although the presentation and writing style are clear and accessible, given the technicality of the subject matter. To my mind, this is a major benefit, seeing that it is vital that the buyers of books, the viewers of films and theatre productions, and the consumers of products of intellectual endeavours also be made aware of the threats that the bills pose, the problematic provisions they contain and the material flaws in the process that have brought the bills to this point in the legislative process.
After years of various rounds of public consultation, which saw remarkably high levels of stakeholder engagement and curiously few changes to the substance of the bills in spite thereof, the Copyright Amendment Bill and the Performers’ Protection Amendment Bill are now being considered by the National Council of Provinces and the individual provincial legislatures. If this trend continues and we see a substantially similar version of the bills being passed by the NCOP and signed into law, despite vocal opposition and valid concerns about the bills’ constitutionality and international treaty compliance, what role do you foresee this book playing in a possible legal challenge to the bills in future?
OD: Many of the provisions of the bills are unintelligible and confused.
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Many of the provisions of the bills are unintelligible and confused.
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The book gives a clear and comprehensive catalogue of their shortcomings and provides solutions to the problems. This would greatly assist the court in dealing with what would probably be inevitable constitutional and other legal challenges. In short, the book makes a valuable contribution of providing order in chaos.
CW: The book addresses substantive issues with the bills, but also points to procedural defects. Some of the central issues regarding the bills seem to be linked to a lack of proper, formal policy documents and assessments. In chapter one, the absence of “a formal, published, underlying policy document” is noted. Further on, the absence is noted of proper research to underlie and motivate the far-reaching and much contested policy position adopted by the Portfolio Committee of Trade and Industry in 2018, in favour of a hybrid model for copyright exceptions that would mix “fair use” and fair dealing exceptions, but be “anchored in fair use”. What is the significance of procedural shortcomings of this nature, for example, the lack of research and the lack of policy, in what may lie ahead for the bills?
OD: I view the bills as being in the nature of provisional first drafts of the desired legislation. They are but the first steps in producing worthwhile legislation. They ought to constitute the beginning of the drafting procedure, not the end product. The government has put the proverbial cart before the horse and tried to evolve a policy through writing bills. The result is an abomination.
Government appears to have preconceived notions, which it has sought to justify by means of misconceived and ill-executed research. My considered opinion is that these “first drafts” should be placed before a properly constituted, truly expert drafting committee (they could do worse than enlisting the services of contributors to this book for this task), who would then pursue the rational and proper course for drafting cogent and proper specialised, technical legislation. Our country, and the creative industries in particular, deserve no less.
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My considered opinion is that these “first drafts” should be placed before a properly constituted, truly expert drafting committee (they could do worse than enlisting the services of contributors to this book for this task), who would then pursue the rational and proper course for drafting cogent and proper specialised, technical legislation. Our country, and the creative industries in particular, deserve no less.
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CW: In their discussion of the broad exceptions and limitations to copyright protection proposed by the Copyright Amendment Bill, questions about constitutionality and treaty compliance abound. The authors state clearly that the Copyright Amendment Bill’s new section 12A is not compliant with the Berne Convention or TRIPS. It is also made clear that there is an absence of policy and proper socioeconomic and legal impact assessment for “fair use” and the other copyright exceptions. Yet, the legislature seems bent on pursuing these policy directions, at the expense of authors and copyright owners who will be deprived of existing rights and income streams.
Ironically, the bills have stated objectives of (principally) benefiting authors and performers, and of bringing our law up to date for the digital age. In Copyright reform or reframe?, the authors persuasively and comprehensively make the case that these objectives are not and will not be met by the bills, and that the scope of the flaws that the bills contain “make[s] easy fixes of the Bills impossible” (147). “This work shows that the shortcomings of most of the provisions of the Bills range from non-compliance with South Africa’s obligations under international treaties and deprivation of property, through ill-considered solutions for real and perceived problems, to simple, basic drafting errors.” Would you please comment on the conclusion reached by the authors in respect of the bills?
OD: I am fully in agreement with the views and conclusions on the bills enunciated by the authors. I reiterate that the bills do not, and cannot, achieve their proclaimed objectives. They will do inestimable damage to our law of copyright and related areas. Perhaps worst of all, if made law, they will cause immense harm to the very people they purport to be assisting, namely the authors, the composers, the artists and generally the creative persons who seek to produce new and better works and make a livelihood from doing so.
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I reiterate that the bills do not, and cannot, achieve their proclaimed objectives. They will do inestimable damage to our law of copyright and related areas. Perhaps worst of all, if made law, they will cause immense harm to the very people they purport to be assisting, namely the authors, the composers, the artists and generally the creative persons who seek to produce new and better works and make a livelihood from doing so.
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My greatest personal concern is that I, as the author of the standard textbook on South African copyright law, will have to try and make some sense out of the aberrations to the law brought about by changes made by the amendments in updating my treatise. A truly daunting and unenviable task!
Also read:
Verslag oor kopieregwetgewing aan lede by PEN Afrikaans se AJV op 20 Augustus 2016
Protes teen die voorgestelde wysigings aan die Suid-Afrikaanse kopieregwet
The Copyright Amendment Bill: an interview with Sadulla Karjiker
South African authors protest against Copyright Amendment Bill
Kommentaar
Hierdie is net nog een van hierdie regering se pogings om alles in SA onder sy beheer te kry, met ongekende gevolge vir die land, en in híérdie geval met ons mense se intelektuele- en skeppende vermoëns. Onder geen omstandighede mag hierdie wet gepromulgeer word nie!