World Intellectual Property Day ‒ Update from South Africa
National Assembly
- Parliament’s National Assembly (NA) passed the Copyright Amendment Bill (CAB) and Performer’s Protection Amendment Bill (PPAB) in September 2022 after further consultations following on the President of South Africa’s referral back of the Bill for, among other concerns, possible unconstitutionality.
- In September 2022 the NA handed over the two Bills to the National Council of Provinces for concurrence.
National Council of Provinces
- The National Council of Provinces (NCOP) called for public comments with a due date of 27 January 2023, followed by oral submissions during February and March.
- In its comments PASA raised several vital concerns. These included that the Bills were not sufficiently founded in a national intellectual property policy and a proper socio-economic assessment. In its oral submission PASA framed its message around the book value-chain role-players that will be mostly affected by the adverse provisions in the CAB, including educational publishers, local SMMEs and authors.
- There appears to be an ongoing polarisation between those who support the Bills and those who reject them.
- The contentious provisions in the CAB which PASA consistently highlight include:
- President Cyril Ramaphosa’s concerns insufficiently addressed
- Royalties as the only means of remuneration
- A hybrid system of exceptions and limitations based on a US-style ‘fair use’, coupled with over-broad exceptions
- Problematic issues regarding contracts
- Copyright assignment limited to 25 years
- Parallel imports
- Inadequate Technological Protection Measures, not fully compliant with international treaties
- No socio-economic impact assessment to ensure sound legal basis for some of the provisions in the Bills
- A significant contribution during the public hearings was made by Prof Malebakeng Forere, Professor of IP, University of Witwatersrand (Wits), who concluded that the Bills could be amended and adopted. ‘One focus was on section 12A which would replace the current principle of fair dealing, although fair dealing had gone to court only once since the inception of the Act and that was in the Moneyweb case. The lack of legal challenges under that regime led one to accept that it could not be a thoroughly bad concept. In light of there being no shortcomings with current fair dealing, few countries use ‘fair use’ and pushback from industry, and bearing in mind the plight of artists in SA that led to the Copyright Review Commission as well as the advice given by the 4-member panel of experts to Parliament, why not retain fair dealing? She cautioned against the insistence on royalties that sometimes did not pay creators much, if anything, at all and reminded Members that Artists were freelancers and did not fit the typical requirements for many financial services providers.’ (PMG, https://pmg.org.za/committee-
meeting/36362/)
- On 18 April Adv. Van der Merwe, Parliamentary legal adviser, and Dr E. Masotja, Director at the Department of Trade, Industry and Competition, reviewed stakeholders’ written submissions and discussed implications of the outcome of the Blind SA Constitutional Court case. Dr Masotja reported that an ‘overwhelming’ number of stakeholders had raised a concern about the absence of a ‘meaningful’ socio-economic impact assessment. (PMG, https://pmg.org.za/committee-
meeting/36694/)
- On 25 April 2023 the Committee Secretariat reported on the earlier public hearings and the two presentations of the previous week. This is a process report which will be sent to the provinces to be taken into account when they decide on their positions with regards to the Bills.
- This report might have an important impact on the provinces' decisions as some of them might regard it as more authoritative and complete than the results of their own consultation processes.
Provincial Legislatures
- In addition to the discussions in the National Council of Provinces, the Bills need to be approved or rejected by each of the nine provincial legislatures which have delegated powers to deal with the Bills. These decisions will be the mandates with which provincial representatives will report back to the NCOP.
- At the date of writing, seven provinces had concluded their public hearings, the Free State had only started and Northwest still had to start.
- PASA sent written submissions to provinces and participated in some of the public oral hearings.
Possible next steps
- The provincial processes are expected to be completed by the second week of May 2023.
- Each province will have one vote in the NCOP and the majority vote from nine provinces will become the decision of the NCOP.
- It was clear during the Select Committee meeting on 25 April that there were concerns about the lateness of some provincial processes, as well as about flaws in the conduct of some hearings. The planned meeting dates for the Select Committee of 16 & 23 May might have to change if provinces take longer – the Committee chair emphasised that there has to be opportunity for full participation by the public.
- There might be a strategic moment before the NCOP’s decision or immediately thereafter that an appeal could be made to the President, outlining the implications of the passing of the Bills and the constitutional avenues open to the President. The alternative might be litigation in a high court or appeals to the Constitutional Court. Some of the opponents of the CAB have already indicated their readiness to pursue the Constitutional Court route.
- The Copyright Coalition of South Africa is still there as a broad front – for now it is clear that stakeholders in both music and film have also pushed hard to slow down the bills.
- A debilitating outcome of the almost 12 year-long journey the Bills have had through Parliament is that two starkly opposing sides have solidified around some key issues in the Bills, including South African related evidence of economic impact, ‘fair use’ and treaty compliance. Sections from both sides at times tend to vilify and misrepresent the other side, making break-throughs towards open discussions and meaningful solutions difficult. The debate still is a winner-takes-all, adversarial situation with hardened positions. What should be a process driven by legal principles characterised by considerations of the hugely complex, technical nature of copyright law with important socio-political outcomes, has become a dogmatic, ideologically driven political process.
Expert legal views on the Amendment Bills
- Following on the publication of the collection of articles on the Copyright Amendment Bill by Dr Owen Dean, A Gift of Multiplication (Juta, 2021) (https://juta.co.za/uploads/
The_Gift_of_Multiplication_ Essays_Amendment_Bill/), which also contains the seminal critique of ‘fair use’ by Professor Sadulla Karjiker (‘Should South Africa adopt fair use? Cutting through the rhetoric’), comes a new publication: Copyright Reform or Reframe? A critical analysis of the Copyright Amendment Bill B13D of 2017 and the Performers’ Protection Amendment Bill B24D of 2016 (Juta, 2023).
- Copyright Reform or Reframe? is a comprehensive legal analysis by copyright experts of most of the new provisions of the South African Copyright and Performers’ Protection Amendment Bills. It not only identifies the problematic provisions of the Bills, but also assists in finding improved solutions to reform the current two laws.
- The book is based on the latest written submissions by the South African Institute of Property Law, but adds commentary on other provisions, as well as relevant historical background, with an extended referencing of sources.
- André Myburgh – expert adviser on the Bills to the previous Portfolio Committee – was the lead author with co-authors Herman Blignaut (Spoor & Fisher), Werina Griffiths, Stephen Hollis (Adams & Adams), Salomé le Roux (Von Seidels), Tammi Pretorius (Kisch IP), Tracy Rengecas (Macrobert), Christiaan Steyn (Steyn IP) and Adv Owen Salmon SC.
- Download the flip book here:https://juta.co.za/uploads/
Copyright_Reform_or_Reframe/
- PASA members and others are encouraged to distribute this free publication as widely as possible.
Yours sincerely
Nicolaas Faasen
Chairperson PASA Legal Affairs Committee
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Also read on LitNet: https://www.litnet.co.za/category/kopiereg-wetsontwerp/
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