Long Road to South Africa’s new Copyright Act
Will it work or is it just a mish-mash?
Astonishing though it may seem, the Copyright Amendment Bill has taken nearly a decade to reach the point where it might finally become law. If there were a world prize for political interference in the parliamentary process of creating business law, it would surely go to the African National Congress (ANC), mesmerized as always by the belief that industries such as publishing, media, and international trade are not acting in the best interests of the poor and underprivileged. But at last we have something.
Overall control factors in lack of progress have been the two sucessive ministers of trade, industry and competition, Rob Davies and Ebrahim Patel, both members of the SA Communist Party who have with their departure in each case left an indelible mark of no progress in international trade affairs, investment and the lifting of South Africa’s profile in international markets.
Overview
Copyright is a broad and multifaceted concept that touches many industries, including mining, consumerism, trade, and manufacturing. However, the discussion around copyright issues here in South Africa tend to focus on sectors such as music, film, and publishing because these are the industries where copyright matters are most prominent and commercially impactful.
Also, this is landmine territory in a legal sense where foreign companies compete in a massive conglomeration of finance, talent, production skills, reproduction, and distribution—each section constituting a major industry in its own right.
Into a more liberal world
The new Copyright Amendment Bill in South Africa as distinct from many other countries, is designed to make the use of published works more accessible for educators, researchers, and, eventually, people with disabilities. The Bill has always been tied to the tandem Performer’s Protection Amendment Bill, which extends the principle of “moral rights” contained in the Copyright Act to actors, singers, musicians, dancers, and anyone who performs literary, musical, artistic, dramatic, or traditional works.
“These changes aim to update the Copyright Act 98 of 1978 and the Performers’ Protection Act 11 of 1967 to better protect the moral and economic rights of performers”, say the DTIC.
The first draft of the Bill, produced in 2017, was rejected at the time mainly because it did not allow retrospective royalty payments to “struggle” composers, many of whom have long since passed on. A court descison on the matter was sought. This slow-down in progress right from the start led to special agreements having to be signed to maintain South Africa’s eligibility for the African Growth and Opportunity Act (AGOA) at the time but eventually, after intense lobbying with radical parties, the matter of retrospective royalty payments were circumvented.
Experts called
At this point, nobody really knew what they were talking about when it came to royalty issues and royalty, so Professor Sadulla Karjiker of the Anton Mostert Chair of Intellectual Property Law at Stellenbosch University was called in to add expertise on the subject. After lengthy debate and a full report on the subject of what line the amendments should take on copyright application, Professor Karjiker expressed reservations about South Africa adopting a fair use model. Despite this, after a further nine months of evidence and debate, it was decided by chair, Joanna Fubbs, circa 2020, that South Africa was to have its own adapted version of copyright application, with a leaning to “fair use”.
Narrow focus
This political input of the past stands as a testament to the possible future dysfunction of the Bill. Serious issues of the time surrounding application in trade with such matters as lining up withs the Berne Convention were put on wait, until the emotionally charged issues of local royalties, publishers rights, the arts and recording/transference were settled. From the start of drafting in about 2016, it was clear to most that no one could be fully satisfied with the final result since the Bill tried to cover too much.
In addition, the issue of digital transfer and remote marketing application was a new subject in SA but the failure of six successive governments and their MPs to understand the urgency of South Africa needing anchor legislation on copyright and trademark protection—essential for normal trade relations with other countries—has also long been a generalized shortcoming of the governing party.
The big argument
Over the years, the merits and disadvantages of basing a completely revised royalty system on Fair Use exceptions and Fair Dealing provisions were hotly debated, with highly polarized views expressed by stakeholders on both sides. The six years of back-and-forth over multiple drafts of the Copyright Amendment Bill, coupled with ANC complaints that the publishing industry was “depriving children of the right to a good education” arose after the Department of Education demanded a right to use works as it saw fit. This matter is still nor properly resolved.
After three drafts and years of stagnation, the Bill was sent to President Ramaphosa, who advised that insufficient public consultation had been held. Provincial hearings were then called—not due to any technical or legal reason it seemed but for political grandstanding before elections. Another six months were wasted, while the government busied itself in Parliament during the last days of total control pushing through controversial pieces of legislation, including the National Health Insurance (NHI) Bill, ahead of the May 2024 elections, ignoring the Copyright amendments.
Catylists
In 2023, Blind SA took the matter to the Constitutional Court and successfully sought a copyright exemption for Braille works, prompting Parliament to resume discussions on the Bill. The court ruling was followed by another successful legal challenge that forced the President to sign the Bill. For better or worse, South Africa will now have copyright law, though it still needs to be formally enacted and regulated.
However, the problems are far from over. Several years ago, during the many parliamentary debates, it was pointed out that in adopting “fair use” principles—used primarily in the U.S. and based heavily on legal precedent— such could complicate matters in South Africa, a country with a legal system that prsently does not rely on case law in the same way. While the Fair Use framework in the U.S. has been built up over time mainly as a result of costly litigation, SA had no past record to rely on.
Build up
The theory behind Fair Use is that, over time, a body of case law will develop, allowing for a more adaptable framework to address new challenges in copyright application. But in a less litigious society like South Africa where legal precedent is much less established, this could lead to significant difficulties. South Africa will now have to start from scratch, leading to a concern that by applying Fair Use, such will lead to lengthy and expensive legal confrontation beacause of lack of guidance historically. However, Rulings and Regulations from government will be issued from time to time based on international guidelines on outcomes elsewhere, we understand, whereby a specialised state authority will be adding to a core list of precedent.
Business Day concludes on the subject that many legal experts and artists argue the Bill infringes on property rights and the right to trade. Others contend that at least South Africa will finally have a copyright law that meets the needs of a modern society and aligns with international trade requirements.
Now an old chestnut
Some seven years ago, we attended a parliamentary committee meeting chaired by ANC chair Joanna Fubbs in which Professor Sadulla Karjiker expressed reservations about South Africa adopting a Fair Use as distict froma Fair Dealing model in its copyright legislation. He cautioned that implementing fair use could lead to unpredictability and potential conflicts with international obligations. He opined that Fair Use is an open-ended doctrine that allows courts to determine permissible uses of copyrighted material on a case-by-case basis but it can introduce legal uncertainty. In contrast, Fair Dealing, he noted, provides a specific list of exceptions, offering more predictability for conclusions.
Prof. Karjiker argued that the open-ended nature of fair use could result in inconsistent judicial decisions and may not align with South Africa’s international commitments. CliffeDeckerHofmeyr offers a bleak analogy likening the current situation to Aldous Huxley’s Brave New World, where individuals constantly grapple with unclear laws and newly empowered regulatory bodies. In such a world, they say, one simply has to “get on with the show.”
Patrick McLaughlin
parlyreportsa.com
parliamentary correspondents