The revised version of the Copyright Amendment Bill (“the Bill”) was released on 16 May 2017. It has caused great concern for authors and publishers, who fear that the weakening of copyright protection will have an adverse impact on their very livelihood. One of the most critical perspectives on the Bill comes from the Anton Mostert Chair of Intellectual Property at Stellenbosch University. Sadulla Karjiker, the Incumbent of the Chair of Intellectual Property, and Cobus Jooste, Fellow of the Chair of Intellectual Property, pulled no punches in their written submissions to the Department of Trade and Industry (DTI). Catrina Wessels spoke to Karjiker about some of the changes that the Bill aims to introduce to the Copyright Act (“the Act”) and his concerns in this regard.
You noted in your submission that the drafting of the Bill leaves much to be desired. Do you care to elaborate?
One gets the impression that the persons who drafted this are ignorant about copyright law and the basics of it. Copyright law has at its core the distinction between the author and the owner. The distinction between these terms is clear to anyone versed in copyright law. The author is an immutable concept in the sense that you remain the author of a work you’ve created, whereas copyright ownership might change multiple times going forward.
There is utter nonsense in the Bill about “transfer of authorship”. Quite frankly, if a student in my class wrote this, I would not give him a pass mark, because the student does not understand the very basics of copyright law.
As opposed to the Act, which correctly refers to the “author” and “copyright owner” throughout, other terms such as “user”, “performer” and “producer” have, quite arbitrarily, been introduced in the Bill. This veering away from established terminology creates significant uncertainty. Are the errors of terminology simply drafting mistakes?
No, definitely not. I have tried to be forgiving and see it as a lapse in terminology, but the fact that it pervades the text of the Bill suggests that this is not inadvertent. That’s why I’ve been so damning in my critique. This cannot be termed “editorial blemishes”. This is evidence of ignorance of copyright law. It’s not only that the language is inappropriate, there is a lack of knowledge of the basics of copyright law and the structure of the existing legislation.
The effect of this is that even well-intentioned provisions are rendered almost useless. The way in which it has been encapsulated means that it has brought about more uncertainty. Take, for example, the proposed inclusion of the artist resale royalty right. This is something they could have copied almost verbatim from existing legislation elsewhere. Instead of showcasing the best of what had been done before, we got the furthest thing from it. What we see in the Bill is a basic lack of vision; a case of just getting it wrong.
This is especially unfortunate if one takes into account the substantial efforts stakeholders made with their submissions in reaction to the first version of the Bill – also on short notice. I believe over 100 contributions were submitted, some with comprehensive guidance on how the Bill can be bettered, and yet we see only marginal improvements in this new version. Why are submissions still being invited if the content of those submissions seem to be disregarded to a large extent?
It creates a veneer of procedural regularity. It hasn’t happened before in South Africa, but if this Bill is passed, I think there should be an attack on the very procedure by which this became law because it seems like a case of railroading legislation through parliament.
In response to a call for an extension of the period for written submissions, the deadline was extended from 19 to 30 June*. But that’s still effectively only 6 weeks since the Bill was published, and I think that’s wholly inadequate. Because of the poor quality of the drafting, one has to spend so much time just looking at the technical defects that you cannot concentrate on the points of principle.
We are in a situation where the ANC is the majority in parliament, and if you have enough support from your friends in parliament, anything can pass through parliament as legislation, which is a deeply unhealthy relationship. This places the country’s legislation and, on the subject of intellectual property law, the integrity of our system at peril.
Legislation takes time, and rightly so. You must involve all the interested stakeholders and do impact assessment studies. If you are making wholesale changes whereby universities can, essentially, copy publishers’ books, there should have been an economic impact assessment. The DTI apparently did an investigation of sorts, but if they did, they must release it so that we may check whether the principles applied in that analysis stand up to scrutiny.
What is even more troubling is that the intellectual property policy hasn’t even been released, yet we get another version of the Copyright Amendment Bill. No one knows whether what is being proposed is in line with the policy to be published.
* The deadline was extended to 7 July after this interview took place.
Procedure and inept drafting aside, do you think the Copyright Act needs to be updated and revised?
Definitely. There have been a number of international treaties that South Africa hasn’t signed and we are lagging behind. The WIPO internet treaties are pertinent in relation to the digital world, and of course the Marrakesh Treaty which aims to ensure access to copyright works for visually impaired users.
Yet the Copyright Amendment Bill provides for access to visually impaired users, and in this sense, seems to prescribe to the rationale behind the Marrakesh Treaty. Why does South Africa choose to go it alone and amend its national legislation without signing the international treaties?
The custodianship of the DTI over intellectual property has been particularly dysfunctional for a long time. Signing a treaty generally triggers a timeline within which the signatory must become compliant, and we haven’t been able to get our ducks in a row to transpose the international treaty obligations into our national law. We should have been doing this piecemeal over the past 15 years – definitely the last decade.
The Standing Advisory Committee on Intellectual Property has been non-existent for the past 10 years. This committee should be overseeing intellectual property law developments in an exhaustive manner. But because it doesn’t exist, it seems that amendments have been personality, rather than principle, driven at DTI. The approach now appears to be to get the legislation to be in accordance with the relevant treaties, and then to sign the treaties, rather than the other way round.
What are your thoughts on how fair use and fair dealing are presented in the Bill?
At this stage, it’s neither fish nor fowl. There have been two schools of approach to exceptions. The fair dealing approach, which has been our approach, is a closed list of exceptions. Then you have the American fair use type of approach, which is more open-ended. It identifies factors by which potentially infringing conduct can be measured by a court, and then the court will decide whether it was infringement or not.
We see both fair use and fair dealing in the Bill. What does that mean? It’s an important question, because you need to know what your point of departure is: a closed list or an open-ended standard. Of course, you can have a hybrid approach where you say our point of departure is fair use, but there are, in any event, specific instances where the conduct would prima facie be permitted, for example, for education, teaching or research. Crafted properly, a hybrid approach would be sensible.
Instead, we get this muddled use of terminology, which again speaks to the ignorance of the drafters. They don’t know the current legal landscape and they don’t know the differences between these two major approaches to exceptions.
A cautionary note on the US fair use approach is that it is not necessarily in line with the Berne Convention’s requirement that exceptions and limitations must be confined to certain special cases. No one has challenged the US approach, but there has been a question mark about it.
The Bill as it stands mentions fair use and fair dealing, but also adds special exceptions for educational purposes. What do you make of that?
We already have an exception for teaching purposes in the Act. This provision has been understood to mean that you have the right to use copyright material for illustrative purposes in the classroom. If that’s what’s meant with adding “education” as a permitted use, then that’s fine. However, my concern is that, read with the reproduction licence schedule, these provisions are a lot wider. We must ask ourselves: is it warranted? Why are we doing this? I don’t believe it is warranted to introduce these wide-ranging copyright-free areas in education. As it stands, the legislation is open to exploitation by people for their own benefit.
This could have devastating consequences for the publishing industry.
It is becoming a hot potato. I don’t think I would get into educational publishing if this goes through. These are wide-ranging amendments that could lead to some small publishers folding.
Legislation is supposed to create certainty and to create the conditions for people to be innovative and entrepreneurial. This Bill is not providing the necessary certainty. That’s a real concern. We’re sitting in a technical recession and this type of proposal doesn’t imbue anybody in business with confidence.
The US Chamber of Commerce compile an index where they correlate the economic prospects of a country with its intellectual property policy. The Bill, if passed as legislation, will cause South Africa to drop on that scorecard.
Let’s assume that the underlying philosophy for these wide-ranging exceptions to copyright is to promote access to education and promote opportunities for people. Even if that is the point of departure, there is a problem with how they are going about it, because the message seems to be: “we will allow people and institutions to just copy other people’s textbooks and make it freely available, even though they don’t own the copyright, so that we can educate people and increase their skill levels, because that would increase innovation going forward, which will benefit the country.” This is the summary of this type of approach. However, what it actually tells people is: why be innovative and why create? Because ultimately your creation can be appropriated by the government. That’s implicit in the message as well, that we don’t value intellectual property and that we will ride roughshod over anything you may create in future.
There is a deep philosophical contradiction at the heart of this misguided approach. Weakening copyright protection, which is essentially geared towards incentivizing creation, ends up devaluing the very thing it claims to be promoting.
How do you think these amendments will affect authors? It seems to be a common trope in the DTI’s narrative around this Bill that it is geared towards protecting authors and artists. Yet, I struggle to see which aspects of the Copyright Amendment Bill will achieve that goal.
That’s part of the rhetoric, but if you look at the detail, there’s not much there.
Limiting the term of a copyright assignment to 25 years is an example of where they might be expressly trying to benefit the author. The idea is that copyright which has been assigned would automatically revert to the author after 25 years. This seems to function on the basis that the author is the copyright owner, which isn’t always the case. I think the idea is to protect the author from unfair agreements, bearing in mind concerns over the inequality of bargaining power. If the work is very successful, it would allow the author to negotiate a new deal later on. The number of authors who will actually benefit from this is debatable, and probably miniscule. I doubt that there are many books that have a commercial life of more than 25 years.
The irony of these well-intentioned provisions is that they probably only benefit the authors who are benefitting the most already. The resale royalty right is the other example. What initially sounds like a favourable provision is actually not.
How will the provisions of the Copyright Amendment Bill impact on copyright in academic writing?
There are some badly drafted provisions which seem to say that an academic publication like a journal article must be made freely available within twelve months from publication. Academic articles are the lifeblood of academics. Our academic progression depends on publishing in peer-reviewed, accredited journals. If these amendments mean that a commercial publisher will no longer want to be involved in the output of academic research, this will have a direct effect on authors. Academic authors need publishers to realise their ambitions, and disseminate research. It’s a symbiotic relationship.
If local publishers are no longer able to invest in disseminating research, academic articles will probably be published in foreign journals.
The incentive to write a textbook will also be severely diminished by the possibility of the textbook being freely copied and translated.
Also, copyright in state-funded works will now vest in the state. This is particularly troubling and confusing because we already have legislation dealing with intellectual property created at publicly funded institutions, like universities, according to which the institution owns the copyright. Now the Bill suggests that the state owns the intellectual property, and can never assign it, so there’s massive confusion.
If you would venture a guess: what does the future hold for the Copyright Amendment Bill?
I can give you my wish list. I hope that this never sees the light of day as legislation. For me, as Chair of Intellectual Property, the Bill presents an attack on intellectual property law from a basis of ignorance. It has the potential to create great uncertainty going forward. It comes down to abolishment of property rights and the depreciation of intellectual property as an economic driver.
There will hopefully be sufficient concerns regarding the Bill that DTI will need to go back to the drawing board and to seriously look at some of these issues. I hope that there will be more vocal condemnation of the proposals. A united front is needed to make government see some sense going forward. Proper custodianship over intellectual property is non-negotiable.