New copyright bill will take South Africa into the 21st century at last
The bill will give South African artists and creators benefits and rights already enjoyed in many countries
On 1 September 2022, the Copyright Amendment Bill was passed by the National Assembly with 163 votes for and 45 votes against the Bill. There were no abstentions. The Bill will now go to the National Council of Provinces.
It is a progressive Bill that will afford South Africans rights similar to those enjoyed by people in many countries around the world, and yet four parties – the Democratic Alliance, the Freedom Front Plus, the African Christian Democratic Party, and the Economic Freedom Fighters – rejected the Bill.
Originally published for public comment in 2015, it has undergone various rounds of discussion and drafts. Numerous submissions to Parliament led to several revisions of the Bill, the final version being passed as Bill B13D-2017. See Bill’s timeline here and here.
The Copyright Review Commission Report was a key to reforming the current law. The Commission examined the workings of societies which collect royalties on behalf of authors, performers, musicians and others in South Africa and reviewed the concerns raised by the creative industry regarding the collection and distribution of royalties to artists. The Commission was not impressed that over 70% of royalties go outside South Africa. It made various recommendations to address lack of regulation and transparency, poor governance, and maladministration relating to distribution of royalties and unallocated revenues.
Although in December 2018, the Bill (B13-2017) was passed by the National Assembly and then by the National Council of Provinces on 28 March 2019, it took the President nearly 15 months to act.
At the time, the President was being unduly pressured by the US Trade Representative (through tariff threats) and the European Union to stall the Bill.
The President then referred the Bill back to Parliament on 16 June 2020, claiming certain sections relating to fair use, libraries, archives, museums and galleries, computer programs, and education and academic activities could “run the risk of constitutional challenges”.
From late 2020 until June 2022, the sections under review in the Bill were deliberated and revised to accommodate the President’s cautious approach, and time was given to interested parties to make further submissions.
Blind SA, assisted by SECTION27, instituted action in the Gauteng High Court against Parliament, the President, and relevant government officials to improve access for blind people to published works. On 22 September 2021, Judge J. Mbongwe ruled that the current copyright law is unconstitutional in regards to people with disabilities. In May 2022, judgement in this matter was reserved in the Constitutional Court.
After much deliberation, the Portfolio Committee on Trade and Industry approved its Final Report and final version of the Bill on 10 June 2022. The National Assembly passed the Bill on 1 September 2022 and transferred it to the National Council of Provinces for concurrence.
Passage of the Bill has been contentious and polarising. There has been strong support for the Bill from creators and authors, educational and research institutions, libraries and other information services, government departments, civil society, communities serving people with disabilities, as well as international, regional and local library, archival, and educational organisations and trade unions. The Bill has also been hailed by many as a potential model for other countries, particularly developing countries.
But opponents of the Bill, representing mainly rights holders, collecting societies, creative industries, and multinational conglomerates, rejected the Bill in toto, despite the Bill being revised several times as a result of the many public comments submitted and technical assistance provided by IP (intellectual property) experts.
Misinformation in the media
It is not true that supporters of the Bill are “agents of foreign tech companies” or that the Bill “will greatly reduce the incentive for creating original works” or that “fair use only exists in the US”, or that “it will cause catastrophic damage” to creative industries, as certain opponents of the Bill maintain.
Ironically, some of them are the very same parties that have failed to pay fair royalties to the creators they claim to represent. Such an approach is dishonest and surely undermines the credibility of those making such arguments.
One opponent has labelled Open Source, Copyleft, and Creative Commons as “copyright antagonists” who “harbour in their midst members of the dark forces”. He also bizarrely claims “one of the chief weapons of the copyright dark forces is the promotion of widespread exceptions to copyright”.
The truth of the matter is that copyright limitations and exceptions are lawful balancing mechanisms permitted in the Berne Convention and TRIPS Agreement and are included in copyright laws around the world.
These are an extremely important part of copyright design and have been so since the inception of copyright.
Opponents of the Bill are also users of information and need exceptions to access information, for work, teaching or learning, or conducting research, or for leisure, civic or other purposes, or to share, innovate, invent or create new works.
Regarding fair use, US Judge Pierre N. Leval states that: “Fair use is not a grudgingly tolerated exception to the copyright owner’s rights of private property, but a fundamental policy of the copyright law. The stimulation of creative thought and authorship for the benefit of society depends assuredly on the protection of the author’s monopoly. But it depends equally on the recognition that the monopoly must have limits.”
There is no evidence anywhere in the world that fair use has caused any damage to creative industries. More than a dozen countries enjoy fair use in their copyright laws, and more than 14 other countries include fair use factors in their copyright laws. Some years ago, I communicated with various library and IP experts in most of the countries that have fair use provisions. They confirmed that there is no evidence to show that fair use has caused any damage. As they pointed out, authors still write, musicians still make music, artists and other creatives still create, and publishers still publish.
One fair use jurisdiction, the US, boasts the largest and wealthiest publishing, entertainment and IT industries in the world. Fair use certainly has not caused “catastrophic damage” to its economy. On the contrary, fair use contributes trillions of dollars annually to it. See Q&As on fair use here.
Benefits of the Bill
Many clauses in the Bill were adopted from other progressive copyright regimes, including the US, UK, Israel, the EU and Singapore. The Bill was also informed by: Human Rights and International IP Conventions; our Constitution; documents such as World Intellectual Property Organisation treaties and studies; treaty proposals by the African Group and the International Federation of Library Associations and Institutions; the Electronic Information for Libraries model law; international, regional and local research projects, including African Copyright & Access to Knowledge Project, and the SA Open Copyright Review.
The alignment of the Copyright Amendment Bill with the Constitution and human rights conventions and other progressive copyright regimes should improve the lives of all stakeholders. Here are some of the Bill’s benefits:
It will increase access to information for all South Africans through fair use rights [s.12A] and exceptions that many developed countries have tried and tested, and benefitted from, for decades [s. 12B-D, 15(1)(a), 19B-D, 22A, 28P].
It will empower authors, musicians and other creators to have more control over their works [s.22B-D, s.28S]. It provides an assignment period for 25 years [22(3)] (negotiable with rightsholders, should they wish to extend the period); better contractual protection [s.12D(7)(e), 22D & 39B]; protection of moral rights [s.20(1)-(2)]; better access to others’ works through fair use [s.12A-D]; and various exceptions [s.15(1)(a), 19B-D, 22A], and provides opportunities for fairer royalties [s.6A(1)–9A] through regulation and accountability of collecting societies [s.22B]. Authors, creators, musicians, producers and publishers also engage in research, studies, teaching and learning, resource-sharing, AI, quotation, and other activities that require unrestricted access to a wide range of other copyright works.
It will enable visual artists to benefit from a resale right [s.7A-F].
The Bill’s intrinsic link to the Performers’ Protection Bill will give artists and performers certain protections, and for the first time, the right to earn fair royalties [s.22B-D].
It will enable fairer and reciprocal use of copyright works. Currently, countries with fair use can use and reuse South African publications, yet South Africa cannot use or reuse their works, as the current law is too restrictive and does not address the digital environment.
It will help end the book famine by allowing people with disabilities to access material [s.19D] and expedite South Africa’s ratification of the 2013 Marrakesh Treaty to enable cross-border exchange of accessible formats.
It will allow libraries (including legal deposit libraries), archives, museums and galleries to serve their users in accordance with their statutory mandates, and to digitise, format-shift, share resources, and preserve their collections, to protect our cultural heritage and documentary records [s.12A(vi)&12D, 19B-D].
Had our current copyright law permitted digitisation, some of the devastating losses in the fires at University of Cape Town and Parliament could have been avoided. Huge collections have been destroyed forever! A loss not only to South Africans, but to researchers, historians, politicians, lawyers and many others around the globe.
The Bill will enhance access to and sharing of teaching and learning materials for face-to-face and blended and online learning, including distance learning, training and lifelong learning. [s.12A-D]. Glaring deficiencies and failures of copyright in the digital environment are highlighted in Case Studies presented at WIPO Information Session on the Impact of the COVID-19 Pandemic on the Copyright Ecosystem Session in May 2022. The exceptions in the Bill would have been extremely helpful to researchers, academics, educators, students and librarians during the pandemic lockdowns.
It will enable use and reuse of orphan works whose rightsholders are untraceable, thus unlocking these works for the benefit of society and creativity. [s.22A].
It will permit deposits in open access repositories [s.12D 7(a)-(e)] and enable open licensing [s.39B(2)] for the advancement of Open Science, Open Access, Open Educational Resources and other projects, especially through South Africa/European Union and other international partnerships.
It will enable and enhance gaming, AI and computational analysis for research purposes through the application of fair use [s.12A], and use of software programmes [s.19B] for innovation, inventions and other important activities that will contribute to our economy and social development.
It will establish a Copyright Tribunal that will address infringements and other issues, to avoid parties having to engage in expensive litigation through the courts. [s.29].
It will enable South Africa to develop its own jurisprudence in time, and to benefit from rulings in other countries.
In essence, the Bill takes South Africa into the 21st century. It is modern, forward-looking, and goes a long way to redressing omissions, imbalances, discrimination, restrictions, and unconstitutionality in the current copyright law. If finally passed, it will be more than progressive, it will be the leading copyright law in balancing holders’ and users’ rights, gathering the best of legislative innovation in copyright from around the world into one law.
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