+27 (0)21 880-5160 | service@swart.law



The Copyright Amendment Bill 2017

by Dr Stuart Gardiner on 26 July 2018


The draft of the Copyright Amendment Bill 2017 was published on 16 May 2017 and the date for public comment in response to the Bill expired on 19 June 2017.  This was an extraordinarily short period for responses to the complex legislation contemplated by the Bill to be made.  The Bill has not been met with universal acclaim and much of the academic response to the Bill has been cutting.


The Memorandum on the Objects of the Bill records its objects to be to align Intellectual Property legislation with the digital age; to allow reasonable access to education; to assist people with disabilities to obtain proper access to copyrighted works; and to ensure that “artists do not die as paupers” due to ineffective protection.

The stated objects of the Bill are clearly laudable but in the writer’s view the provisions in the Bill relating to the two areas referred to as “reasonable access to education” and rendering greater protection to artists require revision.

Currently copyright is governed by the Copyright Act, 1978. The Act defines the actions which constitute copyright infringement and records certain specific acts which do not infringe copyright in the range of defined works which enjoy copyright protection in terms of the Act.

Thus, by way of example, copyright in a literary work (which would include a textbook and written teaching materials) would not be infringed by any quotation therefrom provide the quotation is compatible with fair practice and the extent of the quotation does not exceed the extent justified by its purpose. The source of the quotation must be recorded as well as the name of the author (if it appears on the work). 

By way of further example, copyright in a literary work would not be infringed by way of illustration in any publication, broadcast or sound or visual recording thereof for teaching, provided such use is to an extent justified by its purpose and such use is compatible with fair practice. The source must be mentioned as well as the name of the author (if it appears on the work).

The above exceptions are provided for in sections12(3) and 12(4) of the Act.

To complete the picture sections 7 and 8 of the Copyright Regulations,1978 allow multiple copies of a reasonable portion of a work (not exceeding one copy per pupil per course) to be made by or for a teacher for class-room use or discussion. A single copy may be made by or for a teacher for research, teaching and preparation for teaching a class. 
 
The rights of the author about which the Memorandum to the Bill expresses its concerns are currently protected insofar as the cumulative effect of the reproduction must not conflict with the normal exploitation of the work to the unreasonable prejudice of the legal interests and residuary rights of the author. (Section 2 of the Regulations).

The Bill, in an amended section 12(1), introduces new general exceptions to copyright infringement including “12(1)(a)(iv) scholarship, teaching and education” and “12(1)(a)(vii) expanding access to underserved populations”. These exceptions are subject to “fair use” and a test for “fair use” and “fair dealing” appears in section 12(1)(b). No restricted list of specific acts which would resort under the new general exceptions referred to are provided for in the Bill.

The above provisions in the Bill are open to the interpretation that the new exceptions which they introduce are wider than and override the exceptions provided for in sections 12(3) and 12(4) of the current Act as discussed above, which will nevertheless remain in the legislation. 

It has been suggested that the new exception for “scholarship, teaching, and education” to be introduced under in the Bill would enable the State to justify expropriation of copyright in entire textbooks to produce cheaper unauthorised copies for such purposes, whilst a commercial publisher could produce unauthorised copies of publications in which copyright subsists if doing this expands access thereto “to underserved populations”. Such exceptions constitute a radical denigration of the author’s copyrights which the Bill is ostensibly directed at securing.

The Bill also contains provisions intended to secure authors’ interests which do not display much perspicacity as to their ultimate or commercial consequences by restricting the freedom of parties to contract in relation to copyrights on terms agreed upon between them.

For example, an author having no interest in keeping the copyright or wishing to do so irrevocably, for a substantial price for instance, is not able to dispose of his or her copyright outright by contract as the Bill provides that any such transfer of copyrights by an author reverts to the author automatically after 25 years; Verbal copyright licences can be revoked at any time even if the parties have agreed to a licence term specifically; A joint ownership arrangement results where a party commissions another to take a photograph or to make a portrait, cinematographic film or audio-visual fixation and pays for it unless a contract (advisably in writing) provides for the commissioner to be the exclusive owner of the copyright in the work; Where a Royalty Collection Agency for a particular kind of work is constituted under the Bill a licensor of copyright in such a work must collect royalties through the Collection Agency and is barred from making any private contractual arrangement in this regard; In addition the Bill provides for a new section 39B which states that to the extent that a contract term prohibits an act which would not otherwise constitute copyright infringement or purports to renounce copyright, is void  unenforceable.
 
On the positive side the Bill now provides specifically that no copyright subsists in ideas; it provides for Orphan Works - where the author is unknown or cannot be located - and for the licencing thereof; measures assisting persons with disability are introduced; works which are technologically protected by Technologically Protection Measures - being means which in their normal course of operation are designed to restrict copyright infringement in a protected work - obtain specific protection under the Bill from circumvention devices by making it a criminal offence to deal in such devices or to otherwise circumvent Protection Measures; similarly, but without criminal sanction, interference with copyright management information (which records that the work is protected by copyright and identifies the holder of the copyright, or which  identifies the terms and conditions attached to use of the work), is prohibited.

New institutions, namely, Royalty Collection Agencies and an Intellectual Property Tribunal are to be created via the Bill.

In sum, the Bill proposes substantial amendments to the Copyright Act,1978, and there is much that is new. Adverse comment has been made that the drafting is loose and that the Bill requires substantial revision before the proposed amendments are enacted. A perusal of the Bill soon reveals  that such commentary is clearly valid. 



© Swart Attorneys | Swart Attorneys is the trading name of D Swart & Associates Incorporated, a company registered in South Africa with registration number 2003/021176/21.