Sophia Sanan
From a recent article in Business Day: "Largely unnoticed, the Department of Trade and Industry is quietly processing legislation that will, in effect, expropriate copyrights on the death of their owner."
Sophia Sanan, research manager of the African Arts Institute, answers Naomi Meyer's questions about the proposed Copyright Amendment Bill of 2015.
http://www.bdlive.co.za/opinion/columnists/2015/09/21/copyright-bill-latest-in-litany-of-laws-of-increasing-oppression. Should I be concerned, or is the matter blown out of proportion in the article?
There are some very distressing aspects of this policy. However, as I am not a legal person, I would like to respond by quoting from the submission made by AFAI to the DTI, which emerged from group conversations with various members of the public and was drafted by our then intern Gino Engle. I will also attach the full submission here.
I’ve also noticed people discussing the issue on the social media – a few people outraged and others asking them to calm down and stating that copyright will vest in the state only if the heirs of the deceased cannot be traced. Which side should I believe?
“Sub-clause section 21(3) states: ‘Ownership of any copyright whose owner cannot be located, is unknown, or is deceased shall vest in the state ...’ The clause regarding the ‘deceased’ is in apparent contradiction with the law of succession in the Copyright Act and is therefore either wrongly phrased or misguided. Further, its relation to so-called orphan works is unclear. Again, this indicates a misunderstanding of basic copyright law. We recommend that the ‘deceased’ clause be omitted, unless the Bill seeks to override existing laws of succession.
“More concerning is the unjustified de facto vesting of this ownership in the State. No rationale is given for this policy, which again, in fact, runs counter to fundamental motivations of copyright, the protection of the original author. No reference is made to any creative commons service such as an open source database which would leave such orphan works open for non-commercial reproducibility. Thus the relation between Section 22 and Section 12A (so-called ‘fair use’ exceptions) is unclear and problematic.
“We believe that the procedure for assigning and licensing orphan works (Section 22A) is particularly arbitrary and would act as a deliberate barrier to entry. No evidence suggests that such an application procedure is most effective and its applicability to specific types of copyrighted works is unclear. While we welcome the introduction of orphan works into legislation, we recommend that Section 21(3) and Section 22 be redrafted to reflect and clarify the original objectives of copyright.” (From AFAI submission to the DTI)
Whose line is it anyway? An idea is only the property of the person whose idea it is – right? Not of the country the author is from, nor the idea of the author’s close family. So why are we even discussing this – should we not simply concentrate on practical matters, like who gets the money after the artist has died?
Aside from the confusion created by the orphan works clause, there is another concerning factor that goes against this common sense assumption that “an idea is only the property of the person whose idea it is”. In the case of commissioned work the ownership of intellectual property is made rather complex in this bill: “Regarding the existing Section 21 of the Copyright Act (1978), we are concerned that the Bill makes no attempt to protect the creators of original literary and artistic works working in employment. This would bring South African copyright legislation in line with the respective stances of the United Nations, the World Intellectual Property Organisation, and the Berne Convention. At a session of our Cultural Policy Reading Group (6th August, 2015), representatives of the South African Freelancers’ Association provided substantive evidence claiming that under Section 21(1)(b)-(d) photographers are particularly discriminated against. Furthermore, it is concerning that on this issue a petition with over 2 500 signees, organised by the Creative Collaborative Collective, has been overlooked.
“As it stands, ownership vests arbitrarily with the employer not the creator, out-of-touch with stakeholder concerns and out-of-step with international copyright law. We recommend that the forthcoming Bill reconsider amendments to Section 21. Related to these concerns is the insertion of Section 39A which would act to entrench the ownership of copyright with the employer, as Section 21 stipulates. We raise the concern that Section 39A would thereby distort secondary markets of rights, limiting the scope for free negotiation of contracts and licenses. Further, we recommend that Section 39A be redrafted in much clearer language for the purposes of effective legal interpretation.” (AFAI submission to the DTI)
This is also distressing: “The Copyright Amendment Act creates new criminal offences. Unreasonable refusal to grant permission for the use of copyright for educational purposes or for translation into a usable format could entail imprisonment for up to 10 years or a fine of up to R50 000 or both. These penalties are also in line with the department’s fondness for draconian punishment, already clear from the penalties set out in amended black economic empowerment legislation — 10 years’ imprisonment for ‘fronting’ or a fine of up to 10% of turnover. Slowly but steadily, SA is becoming a more and more authoritarian state. We are seeking to escape our international treaty obligations. We are vesting administrative tribunals with more and more powers. We are whittling away property rights — starting with mining and now extending to the artistic domain. We are creating new offences. And we are imposing tougher and tougher penalties.” What is good and what is bad about tougher legislation?
While I don’t feel disposed to answer that question in a generalised way, I refer again to our issue with the Bill’s gesture towards tougher legislation: “The offences amended in Section 23 are severe and badly structured. Such infringements of intellectual property are commonly considered civil offences and to regard them as criminal offences is misguided. Moreover, the Bill inserts these amendments to criminal offences in the section regarding civil offences. We recommend that Section 23 be inserted nearer Section 27, whilst acknowledging, however, that such infringements ought to be treated as civil offences.” (AFAI submission to the DTI)
How can an artist protect himself and his family or heirs from this legislation – can he do it? Is it necessary to be aware of any changes?
If this policy were to be accepted then it would be crucial that people are aware of changes. As I am not a legal person I can only say seek legal advice!