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Copyright Amendment Bill – SA’s latest IP minefield

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It is no secret that South Africa’s current copyright legislation is outdated and in dire need of an overhaul. So when news broke that government was set to publish a Copyright Amendment Bill in July this year, the IP fraternity was atwitter with excitement and anticipation. By Vicky Stilwell, consultant and trademark attorney at Kisch IP.
Whilst amendments to the current Copyright Act are very much necessary to cater for advances in technology and to bring copyright protection up to international standards, and whilst the Copyright Amendment Bill goes some way in addressing these issues, its wording is, in many instances, vague and  it contains some surprising and controversial provisions.
One of the most controversial aspects of the Copyright Amendment Bill relates to the transfer of ownership in works of copyright to the state.  The effect of the relevant provisions could result in copyright owners being unfairly and arbitrarily deprived of their rights, which is contrary to the Constitution.
The Bill seeks to amend the Copyright Act by providing that in circumstances where works are created by individuals who are recipients of public funding, the copyright in such works will be owned by the state. This directly contradicts the provisions of the Intellectual Property Rights from Publicly Financed Research and Development Act, which provides that the recipient of public funding will own the copyright in works created where such funding is used for the purposes of research and development.
The Copyright Amendment Bill also seeks to amend the Copyright Act to provide that ownership of copyright whose owner cannot be located, is unknown or is deceased shall vest in the state. It seeks to provide further that where copyright vests in the state due to the fact that the owner cannot be located, us unknown or is dead, the term of such copyright shall be perpetual.
These provisions are of grave concern and directly conflict with the provisions of the Copyright Act which makes provision for the transfer of ownership of copyright as movable property by, inter alia, testamentary disposition. In more simple English, the effect of these proposed amendments would be that it would no longer be possible for a person to bequeath his or her rights of copyright to an heir in terms of his or her will, as such rights would automatically transfer to the state on his or her death.
Not only are provisions such as this, which seek to arbitrarily deprive a person of a right to property, unconstitutional, one can think of many practical situations where this would be untenable. One surely cannot think of circumstances in it would be justifiable for the state to claim perpetual ownership, in South Africa, of copyright in works created by famous local or international deceased musicians or artists, such as Brenda Fassie or Michael Jackson.
The Copyright Amendment Bill goes on to propose that ownership of copyright owned by the state cannot be assigned. Surely it cannot be the intention of the legislature to prevent the state from, for example, selling copyright owned by it for purposes of commercial gain.
Another contentious aspect of the Bill relates to the proposed introduction of “Resale Royalty Rights” for authors of artistic works. In short, the proposed provisions provide for the payment of a royalty to the author of 5% of the commercial resale price each time the work of art created by him or her is sold commercially, subsequent to the first transfer by the author of the work of art.
The term of the resale right is proposed to be for a period of 50 years from the end of the calendar year in which the author died.
Whilst the concept of resale royalty rights may be acceptable in principle, the provisions in the Bill relating to such rights are contentious for a number of reasons, not least of which is that in their current form, they are vague and fraught with inconsistencies.
Another major problem is that the Bill seeks to restrict resale rights to South African citizens, which is in direct contravention of the Berne Convention (to which South Africa is a signatory), which provides that each member country must afford the same protection to the works of other member countries as is afforded to that country’s own works.
Another bone of contention is that the provisions relating to resale royalty rights do not benefit artists whose works are sold to international buyers, as the proposed provisions state that the creator of an artistic work shall only be entitled to receive a royalty if, inter alia, at the time of the contract of resale, the artist is a South African national and the resale or any part of the transaction takes place within South Africa. Additional confusion is created by the fact that the draft Bill does not explain what is required in order for the transaction, or any part thereof, to be deemed to have taken place within South Africa.
The news, however, is not all bad. Whilst the Copyright Amendment Bill contains some hugely contentious provisions, it also proposes some changes which, although arguably not correctly or accurately articulated in the Bill are welcome principle changes. Such changes include the following:
– The introduction of a definition of “orphan works” (works in which copyright subsists but where neither the author nor owner of copyright can be identified or located) and provisions dealing with the protection and exploitation of such works.

– The introduction of specific provisions relating to exceptions to infringement of copyright for “fair use”. “Fair use” is a concept that is recognised in the legislation of certain international jurisdictions, such as the USA, whose copyright laws are more advanced.

– The introduction of provisions relating to translation and reproduction licenses, which are important in order to make works of copyright accessible to people in their own language. These provisions allow for a person to apply to the Intellectual Property Tribunal for a license to make a translation of a work into any of the languages, including Northern Sotho, Zulu, Sotho, Swazi, Tsonga, Tswana, Venda, Xhosa, Afrikaans or Ndebele, and the circumstances under which a licence may be granted.
What is clear is that the Bill requires revision. A thorough review of the wording is required in order to address the inconsistencies and ambiguities created by the current wording. In addition, when considering appropriate amendments, the Copyright Act cannot be viewed in isolation as a standalone piece of legislation. It must be considered, and amended, in the context of the Constitution that is the overriding governing law in South Africa, and with reference both to additional relevant South African legislation and South Africa’s obligations in terms of international treaties and other agreements to which it is a party.
The public was given an opportunity to comment on the Copyright Amendment Bill, and a number of interested parties did submit comments, including the South African Institute of Intellectual Property Law. It remains to be seen whether the comments suggested amendments will be implemented and, if so, to what extent they will be implemented.