The Committee on Trade and Industry met to provide stakeholders with an opportunity to comment publicly on the proposed Copyright Amendment Bill B13-2017, and to allow Members to deliberate on their comments. The proposed Bill sought to align existing outdated copyright legislation with the many developments in the digital environment at a multi-lateral level. The Committee highlighted the reasons why the Bill had been aligned with international treaties and conventions, its purpose, and the progress achieved so far.
The stakeholders who addressed the Committee were from the academic community, the Southern African Music Rights Organisation (SAMRO), the Dramatic, Artistic and Literary Rights Organisation (DALRO), the Global Network on Copyright Users Rights (GNCUR), the Publishers Association of South Africa (PASA), the South African Institute for Intellectual Property Law (SAIIPL), the Copyright Alliance, and a composer and producer.
There was general agreement that the proposed Bill had unclear terms and concepts, ill-considered outcomes and was poorly drafted. However, the stakeholders agreed that the current copyright laws were outdated and needed to be amended. Some of the unclear terms and concepts included the use of the phrase, ‘user, performer, owner, producer and author,’ instead of adhering to the basic principles in copyright law which addressed ‘author and owner’; ‘resale royalty right’ and ‘user rights.’ Certain legislation in the Bill created ill-considered outcomes and uncertainty, and did not show evidence of incorporating government policy statements. They questioned the incorporation of the ‘fair use’ doctrine because of the unique situation of South Africa and its courts’ systems. They said the Bill would affect the sustenance of the lifestyle of authors and intellectual property creators, failed to introduce consequence management in the internet environment, did not address the concerns expressed by creators of copyright works, had too many broad exceptions and overruled contractual terms. SAMRO and PASA suggested a redrafting of the clauses on regulations on collecting societies, the enforcing of statutory payments on copyrights, and encouraged the collection of a ‘private copy levy’ or copyright levy. PASA also pointed out that the proposed Bill would result in declining revenue from sales of educational publications, a sharp reduction in licensing income via collective management organisations, and an erosion of the incentive for the creation of educational works.
The Committee asked for the stakeholders’ views on the incorporation of the doctrine of ‘fair use,’ the use of the phrase ‘such as’ for exceptions, the application of resale royalty rights, the Copyright Tribunals, the implications of reasonable pricing in the reproduction of books and literary works for libraries and educational institutions, and how legislation could assist in reducing enforcement risks. It also asked for an explanation of how the proposed Bill allowed for the violation of the rights of stakeholders, and for proposals on how the unclear terms, concepts and ill-considered outcomes in the ‘poorly drafted’ Bill could be improved. The Committee commented that the task of legislators was to develop relevant legislation in a fast changing environment which could be used for at least five to eight years before it was reviewed. The stakeholders therefore needed to confirm whether the language of the proposed Bill was too limited to accommodate the technological advances concerning the publication of copyright works.
South Africa was approaching a different mode of publishing and legislation, and this had to be reflected in the proposed legislation. Stakeholders should therefore assist Parliament with its expertise to ensure that the critical principles that could protect authors and creators were included in the Bill.
Chairperson’s Introductory Remarks
The Chairperson said that the proposed Copyright Amendment Bill B13-2017 sought to align existing outdated copyright legislation with the many developments in the digital environment at a multi-lateral level. The proposed provisions were strategically aligned with the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty, and the Beijing and Marrakesh Treaties on copyright.
The Committee had invited the Chairperson of the Portfolio Committee on Arts and Culture to assist with the deliberations on the proposed Copyright Amendment Bill B13-2017 due to the technical nature of the Treaties. The alignments would allow South Africa to accede to international treaties and conventions and ensure effective governance, with social protection, employment creation, and a reduction of some inequalities within creative industries. Furthermore, the alignments sought to implement the recommendations of the Copyright Review Commission and to address the challenges faced by owners/creators of copyright works. They also sought to address the challenges of abuse due to the lack of formalisation of creative industries, piracy, counterfeiting, unfair contracts, non-payment of royalties and non-enforcement of digital rights, and to introduce improved exemptions and limitations that ensured access to use of copyright work for the advancement of education and research.
The purpose of the meeting was to permit stakeholders to comment publicly on the proposed Copyright Amendment Bill B13-2017 and allow Members to deliberate on the comments of stakeholders from the copyright industry, the progress made and the extent of the action that Members could take on the proposed Bill.
She invited Members to consider the motion of Desirability of the Bill. The motion was proposed by Mr A Williams (ANC) and seconded by Ms S van Schalkwyk (ANC). She invited the public to make comments on the proposed Bill, based on the agenda for the meeting.
Presentation: Prof Sadulla Karjiker, Stellenbosch University
Prof Sadulla Karjiker, Anton Mostert Chair of Intellectual Property (IP) Law, Stellenbosch University, said that the sudden appearance of the 2017 Bill raised real concerns about whether there had been proper consultation and engagement with the relevant stakeholders. Furthermore, it was necessary to question the time period allotted for comments on the proposed Bill because it was an inadequately drafted piece of legislation that did not allow interested parties adequate opportunity to formulate and voice their concerns about the consequences and implications of the proposed legislation. He criticised some provisions in the Bill based on copyright legislation. The drafters had used different terms in the Bill instead of adhering to the basic principles in copyright law, which addressed ‘author and owner’. He questioned the use of the phrase ‘resale royalty right’ in the Bill, and said that ‘user rights’ was a misnomer. Legislation in the proposed Bill created uncertainty and could not be introduced as it had been drafted.
Mr Williams asked Prof Karjiker to clarify if he questioned what was presented in Section nine B on ‘resale royalty right,’ or the way it was presented in the proposed Bil.
Mr S Mbuyane (ANC) asked whether Prof Karjiker was attacking the integrity of the professional drafters of the Bill. He said that the language used in criticising the Bill was unfair and advised him to make proposals which would lead to its improvement.
Mr D Macpherson (DA) said that poorly drafted Bills were common and criticisms were important, which was why Parliament had organised the public hearing. He asked Prof Karjiker to assess the proposed Bill in terms of its impact on the education system in South Africa, and what his view was on the inserted legislation that addressed copyright tribunals.
Mr J Esterhuizen (IFP) asked Prof Karjiker for his view on reasonable pricing in the reproduction of books for libraries and educational institutions in South Africa. How could the proposed Bill address the reproduction of books for libraries and educational institutions?
The Chairperson remarked that when criticisms for poor drafts were given during public hearings, the way forward would be to give proposals on how the proposed Bill should be drafted.
Prof Karjiker responded that the drafting of the Bill was poor, and owners that should benefit would not be able to because it addressed transfer of authorship instead of ownership. Hence the ill-considered proposals in the proposed Bill would favour previously advantaged people and not assist previously disadvantaged people who lived in the rural areas, and would erode intellectual property rights. He said that section 13B gave guidelines for the reproduction of books, so the government needed to pay the author before reproducing the author’s books. He also said that reasonably priced books should not be used to measure the price that would be used to reproduce a different author’s book, as copyright had a social cost, so government needed to strike a balance in the reproduction of books for libraries.
The Chairperson remarked that the Committee would appreciate the assistance of Prof Karjiker in addressing the criticisms raised in his comments, and mandated Mr Andre Hermans, the Committee Secretary to contact him. She also advised Members to e-mail questions to Prof Karjiker, and requested him to send written responses to them.
Presentation: Dr Tobias Schonwetter, University of Cape Town (UCT)
Dr Tobias Schonwetter, Director: UCT Intellectual Property Unit, commended the public hearing process and said that it presented a good opportunity to address the shortcomings of the old Copyright Bill, to update outdated copyright law and address issues and challenges that had arisen over the years.
In his opening remarks, he referred to the lawmakers’ checklist as a means of assisting with the enactment of legislation. He said that both over-protection and under-protection of right holders and users had impacts, but the proposed Bill should strike a balance between right holders and users since the aim of the Bill was a law that supported people in the rural areas. The challenges in the copyright legislation were not copyright issues, but were instead related to ‘unfair competition, the abuse of privacy rights, defamation, and exploitative contract clauses’.
He suggested that the term ‘rights owner’ should be used instead of ‘author,’ and proposed that the clause that dealt with state-funded intellectual property in section five should be amended. He gave a less complex definition for ‘a person with disability.’ The comma in the quotation on ‘rights’ in section 12A should be deleted to ensure that the application was not unduly limited. He indicated that the sections on ‘open licenses, parallel importation and freedom of panorama’ needed to be re-drafted.
Dr Schonwetter said that if the right approach to fair use was to reward creators, incentivise and maximise creativity, then copyright law must strike a balance between the interests of right holders and users/public interest. Three approaches were used globally for the doctrine of ‘fair use’ -- fair use, fair dealing and long lists. He suggested the insertion of the phrase ‘such as’ in the section that addressed ‘fair use’ in section 12 (1a) and said that the advantage of ‘fair use’ was its flexibility. He supported his comments on ‘fair use’ with research-based evidence.
Ms Van Schalkwyk observed that Dr Schonwetter had a different perspective on the proposed Bill, which boosted the morale of the Committee. There was an urgent need to amend the current Copyright Bill. She also remarked that Dr Schonwetter had not made any proposals regarding enforcing the legislation.
Mr Williams indicated that the ‘fair use’ doctrine had been inserted to lead to progress in educational institutions, so he asked for Dr Schonwetter’s opinion on reasonable pricing when reproducing books for libraries and educational institutions.
Mr Macpherson observed that the proposed Bill aimed at finding ways to incentivise creators in the rural areas, so the property rights of creative authors needed to be addressed. He remarked that section 25 of the South African Constitution should align with the Copyright Bill, and asked how authors’ rewards and rights could be reclaimed 25 years after their deaths.
Ms P Mantashe (ANC) asked if Dr Schonwetter agreed that there was a difference between ‘author and owner’. She asked him to clarify what was missing from section 12’s list of processes in the proposed Bill in terms of the lawmaker checklist. She also asked him to expound more on the three approaches to the ‘fair use’ doctrine.
Mr Esterhuizen agreed with Dr Schonwetter’s assertion that the major challenge to the copyright legislation was enforcement. He asked him to expound more on intellectual property based on the author and user.
The Chairperson remarked that Dr Schonwetter had said that the ‘fair use’ doctrine was commonly used due to its flexibility. She therefore asked him to give his view on how the advantages and disadvantages in the flexibility of the ‘fair use’ doctrine would affect the enforcement of the copyright legislation.
Dr Schonwetter replied that the questions on clarity and details had been addressed in the earlier written submissions. He recommended that the courts’ systems should be made more accessible to enforce copyright legislation. He was in favour of ‘fair use’ because a cost benefit analysis over the years favoured the ‘fair use’ doctrine. The proposed Bill needed to make it easier for new creators to use content by creating a holistic environment, since every user used inputs from other creators. Enforcement risks played a major role as to why copyright legislation had not been managed successfully. In advanced countries, guidelines had been drafted for the courts to use to enforce copyright legislation.
The Chairperson advised Members to send questions to Dr Schonwetter and asked him to provide written answers.
Mr Macpherson asked him to provide written answers on how section 25 of the South African Constitution would strengthen the reclaim of rewards after 25 years.in the proposed Bill.
Presentation: Southern African Music Rights Organisation (SAMRO)
Ms Sibongile Khumalo, Board Chairperson: SAMRO, welcomed the improvements in the proposed Bill. She requested close engagements with the drafters to ensure that understanding of how the industry worked was put in perspective in drafting it. It should enforce statutory payments on copyrights and encourage ‘private copy levy’. It was unfair for the ‘user’ to benefit more that the ‘creator’.
Ms Nothando Migogo, Chief Executive Officer: SAMRO, said that copyright legislation should create a balance between creators’ rights and users’ access. She indicated the elements that protected intellectual property (IP) creators and users based upon the reports from the IP consultative framework organised by SAMRO. She highlighted clauses in the proposed Bill which undermined SAMRO members’ rights. They were Clause 4C, sections 5, 6, 8 and 9B, which provided that the user and author had rights to claim equal amounts of the royalty on the copyright work. Furthermore, Clause 10 on the introduction of ‘fair use’ created a cumbersome situation for creators and opened up avenues for unnecessary litigation. Clause 3 on automatic transfer of copyright on commissioned works affected the rewards of SAMRO members and creators, hence it should be deleted from the Bill. She commented that intense engagements were needed to enforce regulations on collecting societies, as the use of creators’ songs did not reward creators every time the songs were aired by broadcasters.
The Chairperson indicated that Members would have to have extra meeting days and time due to the delays from the three-line Whip duties, delays in forming a quorum and the nature of the presentations of the public hearings.
Presentation: Dramatic, Artistic and Literary Rights Organisation (DALRO)
Ms Charmaine Mrwebi, author, publisher, and member DALRO, shared her experience as an author of educational works. Highlights included her personal profile, how she had decided to fill the gap by authoring educational work, and how the proposed Bill would affect the sustenance of the lifestyle that she and her family desired, based on income as an IP creator. She indicated that the proposed Bill failed to introduce consequence management in the internet environment, because it did not meet the demands of creators and it did not allow the government to fulfil the promises made to creators. She recommended that the South African government acceded to the WIPO Performance and Phonograph Treaty recommendations by not adopting legislation which overrode contractual agreements.
Mr Lazarus Serobe, Managing Director: DALRO, said the Bill did not address the concerns expressed by creators of copyright works. DALRO supported making available the rights of copyright and artists’ resale right with correction on drafting. The organisation urged Parliament to consider and support WIPO and Marrakesh treaties, and also to introduce a copyright levy. Furthermore, the proposed Bill failed to meet the demands and expectations of creators as expressed by the President of South Africa during the consultative meeting with creative industries in 2015. The intention of the proposed Bill had changed from benefit to authors, to access to copyright works through fair use and exceptions. In addition, it had too broad exceptions and overruled contractual terms, and the introduction of ‘user rights’ was problematic. DALRO also suggested a redrafting of the clause on regulations on collecting societies.
Mr Andre Myburgh, Copyright Legal Counsel, DALRO, made legal observations on the Copyright Review Commission report, 2011, the regulation of collecting societies, resale royalty rights and the copyright levy as it affected the proposed Bill, and gave recommendations on the way forward.
Presentation: Global Network on Copyright Users Rights (GNCUR)
Prof Sean Flynn, Global Network on Copyright Users Rights (GNCUR), highlighted the mechanics of ‘fair use’ in the digital era and said that copyright was a property that arose from franchise law. He made comments on section 12 and 12A of the proposed Bill which addressed general exceptions. He agreed that the phrase ‘such as’ allowed the fair use doctrine to be applied in exceptional situations. The use of the phrase ‘such as’ served to indicate the limit of scope of ‘fair use,’ and he advised the Committee not to adopt the USA law in the Bill because South Africa’s court system and society was different from that of the USA. He compared the experiences of eight countries that had used the fair use doctrine with the experiences of the USA, and said that these eight countries had inserted the phrase ‘such as’ in the draft of clauses in their copyright Bills. He highlighted the benefits of openness to book and music publications, motion pictures and video productions in high and middle income nations.
Mr Esterhuizen agreed with DALRO’s position on the low quality of legislation in the proposed Bill.
Mr Macpherson agreed with the agencies that property rights should be equated with ownership. He asked for further clarity on using collecting societies as the best mechanism for the receipt of rewards for authors’ works, and asked SAMRO to state who regulated the collection of rewards and whether it had assisted any author with litigation. The presentation by Ms Mrwebi had been empowering, and he encouraged her to continue to speak up for the rights of authors. He asked for a further explanation on the use of the term ‘copyright levy’.
Mr Williams asked Prof Flynn for his input on ‘fair use’ in the book publication environment. He also asked for clarification on the property clause in relation to the proposed Bill.
Ms Mantashe asked DALRO and SAMRO to clarify if they wanted a collection society for each sector.
Mr Esterhuizen asked which organisation determined the reasonable price for the reproduction of text books for libraries and educational institutions in South Africa.
The Chairperson asked DALRO and SAMRO to comment on the copyright levy. She also asked the Department of Trade and Industry to send written responses on Clause 4C in relation to the Performers’ Bill.
Prof Flynn indicated that the property clause in section 25 had two different terms -- deprivations in section 25 (1), and expropriation in section 25 (2). Compensation could be given only in the case of expropriation. He indicated some examples where compensation was given under ‘fair use’ in the USA.
Mr Serobe indicated that the inclusion of users’ rights in the proposed Bill would lead to confusion and contradictions in copyright legislation. He said that when users created artistic works they became authors, but when users broadcast an author’s work, the users required permission from the author. DALRO was not advocating more than one collecting society for each sector. He explained the meaning of ‘copyright levy,’ and urged the Committee to include the copyright levy in the proposed Bill, since it was easier to abuse literary works in the age of internet.
The Chairperson remarked that there were instances where more provisions were made in secondary legislation, and urged industry stakeholders to send written answers on the copyright levy.
Ms Ilyana van Tonder, Operations Manager: DALRO, said that orphaned works made it difficult to establish owners of rewards on books. In addition, because libraries could print a book chapter without permission, the libraries were able to avoid the consequences of copyright legislation.
Ms Migogo said that the major challenges on the property clause were due to the implementation of Section 3, when the recipients were previously disadvantaged. SAMRO was better equipped to administer orphaned/undocumented works because of its data repository in terms of infrastructure and process. The legal team of SAMRO evaluated cases before the cases were taken to court. However, many cases were not resolved because they involved rural dwellers who did not have the means to pursue litigation.
Mr Myburgh said that the cost of litigation was high and delays in resolving cases were due to creators who made it difficult to take up the cases.
Mr Esterhuizen asked DALRO to explain how the proposed Bill allowed for the violation of the rights of it members.
Mr Mbuyane asked for clarity on users’ and creators’ benefits.
Ms Migogo said that the rights of SAMRO members would be violated because some of the provisions in the Bill did not follow constitutional rights. She also clarified the parties that benefited from copyright works in different situations. The author was a primary owner, but could become a secondary owner when ownership was transferred. Transferred ownership could be challenging when contracts were exploited.
Mr Serobe said that in copyright law, the user could not be equated as an owner, but the proposed Bill sought to equate the user as an owner and allowed the user to earn rewards on copyrighted works.
The Chairperson appreciated the GNCUR, DALRO and SAMRO for assisting the Committee by making comments on the proposed Bill B13-201. She asked them to send written responses to the questions of Members to ensure that improvements were made to the Bill.
Presentation: Publishers Association of South Africa (PASA)
Mr Brian Wafawarowa, Board Chairperson, PASA, outlined the role of the publishing industry to the economy. He said that some universities had not paid for the licence fees to reproduce books, and said there were negative implications with the additional exceptions given to education in the proposed Copyright Amendment Bill. Furthermore, the Bill would result in declining revenue from the sales of educational publications, a sharp reduction in licensing income via collective management organisations, and an erosion of the incentive for the creation of educational works. He also proposed some industry access initiatives, and made a distinction between the transmitters and users of educational copyright works.
Ms Shihaam Shaikh, Chairperson: Legal Affairs, PASA said it had commissioned an economic impact analysis (EIA) to quantify the impact of fair use and exceptions for education as contained in the proposed Bill. The findings from the EIA had been a weighted average decline in sales of about 33% which would affect gross domestic product (GDP), value added tax (VAT) and corporate tax revenue collections. There would also be a weighted decline in employment of about 30% and a negative impact on publishing operations, as indicated by 89% of the publishers surveyed in the assessment. A comparative study on the effects of fair use in Canada and other countries showed the disadvantages that Canada had suffered as a result of exceptions, which it had introduced in education publishing.
Mr Andre Myburgh, legal counsel, PASA, observed that there were serious gaps in the impact assessment of the proposed Bill. It did not contain any indication of independent research, even though there had been a socio-economic impact assessment study (SEIAS) by the Department of Planning. It did not show evidence that there had been an investigation of the impact of copyright across all creative industries that relied on permissions and licences under copyright, because the same principles were used to address issues of copyright in published music, phonograph and literary works. PASA recommended the rejection of Clauses 9 and 33, the doctrine of ‘fair use’ and selected points on the conceptualisation and drafting of the proposed Bill.
Mr Williams observed that PASA was against the doctrine of ‘fair use,’ and asked if it supported any of the elements of ‘fair use’ practice.
Mr Macpherson commented that PASA had said that some universities had not paid for the licence fees to reproduce books, and asked it to indicate the effects on the academic calendar. He also asked PASA to clarify if this had any effect on schools’ learning. He asked the Department of Trade and Industry (DTI) to confirm if it had received the SEIAS report, and why it had not considered it in the proposed Bill if it had received the report.
The Chairperson remarked that DTI would not be responding to this question and other questions that the Committee had asked until the last day of the public hearing. She said that South Africa was approaching a different mode of publishing, and legislation in the proposed Bill needed to reflect the new modes of publishing. Therefore stakeholders should assist Parliament with their expertise to ensure that the critical principles that could protect authors and creators were included in the Bill, as fresh legislation could not be published every two years. She observed that many of the agencies that had commented on the Bill had mentioned that it had not incorporated policies such as the SEIAS report. The Committee had the SEIAS report, and she asked the Committee Secretary to confirm if it had been made available to the general public.
The Committee Secretary said that Committee had received the report, but the DTI would have to provide answers as to why it had not been made available to the public.
The Chairperson remarked that the Committee conducted an open process. The SEIAS report was not the report of the Committee, but it had been given the report, so some issues would have to be clarified at a later date by the DTI.
Mr Wafawarowa said that the non-renewal of book licences had consequences, but universities presently interpreted the use of books wrongly. This created malpractices and unauthorised use. PASA had not pursued any cases with educational institutions. However, it had constantly pursued cases against pirate publishers. It worked with Google for book transmission, and Vodacom in terms of band width. PASA had subscribed to digital management systems, and more changes would occur in digital publishing the near future.
Mr Myburgh said that there were consequences for ‘fair use,’ as evidenced in the USA, so PASA had always sounded warnings. The proposed Bill had a list of eight areas where exemptions were stipulated. Libraries and educational institutions were major clients of PASA, so it had not sued any library or educational institution for taking liberties with the reproduction of copyrighted books and literary works.
Mr Williams asked PASA to state if it agreed with the clause on ‘fair use’ in the Bill without the use of the phrase ‘such as’.
Mr Myburgh replied that PASA did not agree, because of the addition of many items that had been included in the proposed Bill which were not even legitimate clauses in the ‘fair use’ doctrine in the USA.
Mr Williams asked PASA to give a list of what could be considered as ‘fair use’ in a written response to the Committee.
The Chairperson remarked that the task of legislators was to develop relevant legislation in a fast changing environment which could be used for at least five to eight years before it was reviewed. She therefore asked PASA to confirm if the language of the proposed Bill was too limited to accommodate the technological advances concerning the publication of copyright works.
Mr Wafawarowa said that the approach was to use technology to resolve some of the challenges faced by the publishers in the past. PASA was not against the flexible use of technology, but the challenge was to be cautious to ensure that some users did not get rewards at the expense of authors.
The Chairperson asked PASA to provide the information in a written response.
Presentation: South African Institute for Intellectual Property Law (SAIIPL)
Prof Esme du Plessis, Chairperson: SAIIPL, in her opening statements agreed that the copyright law needed to be amended. However she indicated that the proposed Copyright Amendment Bill had unclear terms, concepts and ill-considered outcomes. The Bill failed in its promise by introducing provisions from foreign and international jurisdictions without fully assessing the effect on local copyright industries. It introduced measures that took away existing rights of rights holders and introduced limitations and exceptions without considering the effect this would have on the welfare of rights holders. It did not take into account fundamental principles and guidelines that should be the foundation of good law.
The proposed Bill, in sections 4, 5 and 6, introduced a new and highly questionable right – the user royalty right. Under section 33, section 39, which introduced a provision that renouncing of a right could not be enforced, had been added. Under section 9, new sections 9b-9f, a new type of royalty, the resale right royalty, had been introduced. The intentions of section 9b (1) and section 9b (2) were unclear. The use of the phrase ‘user, performer, owner, producer or author’ in section 9b (3) was unclear. Section 9c made no sense. The terms of the resale royalty right in section 9d (1), whereby the royalty expired 50 years after the death of the user, was unfair. The assignment of a resale royalty right in section 9e was unlawful and could not be enforced. The Bill did not indicate who was responsible to pay the resale royalty -- the seller or the buyer. The principle of resale royalty was supported if the outcome would benefit young and emerging artists. However, the model in the proposed Bill had many flaws, so it should be redrafted. She also highlighted criticisms to exceptions to enforceable rights under the ‘fair use’ doctrine and general exceptions.
The Chairperson asked SAIIPL for proposals on how the wording of the Bill could be improved, as it had identified some of its shortcomings.
Prof Plessis replied that written proposals to improve the Bill would be presented to the Committee. She indicated that in re-assessing the proposed Bill, the Committee should address contentious policy issues.
Mr Stephen Hollis, Member: SAIIPL, said that the Committee needed to apply caution in implementing a USA-based ‘fair use’ or ‘fair dealing’ system used in other countries in the Bill because of the unique situation of South Africa. He said that the principle of fair use was being refuted in the USA because it allowed creators to lose rewards. The introduction of user royalty rights for every time creators’ music was played by broadcasters was not feasible. The clauses should be fine-tuned by stakeholders before being included in the Bill.
Mr Williams remarked that the DTI needed to give more clarity on the clauses in the Bill. He also asked why stakeholders were against the ‘fair use’ doctrine, despite the fact that South Africa was entering into the era of openness.
Adv A Alberts (FF+) asked SAIIPL to state if a regulatory impact assessment had been done on the ‘fair use’ system.
Mr Macpherson asked SAIIPL to provide a definition for the phrase ‘user and usage,’ and for it to give its inputs on the illegality of taking creators’ rewards 25 years after their death, according to section 22(3) of the Act.
Ms Mantashe said that although it would not be easy to enforce a change in copyright legislation, stakeholders should note that the Committee was fighting to protect the rights of people who were previously disadvantaged.
The Chairperson said that although the Bill had to take into consideration the concepts and legal definitions of copyright definition, the stakeholders should not forget that in the past creators of copyright work had been advantaged people. She agreed that the stakeholders had expertise on copyright law, and had given helpful criticisms on the proposed Bill, and urged them to provide written proposals to assist Parliament. She indicated that the Committee was not just importing legislation from other countries, but would incorporate changes only after a comparative study based on South Africa’s situation had been done.
Mr Hollis said that the detailed submissions of the SAIIPL had provided suitable proposals on the wording of the clauses, and it was eager to support the Committee in fulfilling its role. Written comments would be provided on user and usage definitions. Section 22(3) was difficult to apply in specific industries such as music and software development, but SAIIPL would render assistance to the Committee.
The Chairperson said that Section 22(3) of the Act was vital, so she urged the SAIIPL to provide written responses to the question.
Mr Macpherson (DA) welcomed written responses to the question on Section 22(3) of the Act in terms of the rewards of the creator after 25 years of the creators’ death, particularly in the film and music industry.
Prof Du Plessis said that a limitation of rights occurred when authors signed off their rights in contracts. However, SAIIPL had been empowered to assist authors, especially those who lived in the rural areas.
Presentation: Copyright Alliance (CA) and Mr Graeme Gilfillian
Advocate Joel Baloyi, Legal Counsel, CA, clarified why the rewards of the creator had been limited to after 25 years of the creators’ death in terms of Section 22(3) of the Act. He indicated the position of CA through criticisms and the proposals for an improved copyright Bill.
Mr Gabriel le Roux, producer, composer and member of CA, said that South African composers were disturbed over some specific clauses in the proposed Bill. He pleaded with the Committee to assist local composers to strengthen legislation that ensured that revenue was not lost to the broadcast medium.
The Chairperson had to leave the meeting at this stage, and Mr Williams was nominated to act on her behalf.
Mr Graeme Gilfillan, multi-jurisdictional copyright lawyer and forensics expert, after a brief introduction as regards authorial and entrepreneurial aspect of copyright its links to intellectual property Gilfillan then broke his presentation in two 3 parts being some hard facts about copyright in South Africa today, his own submission and what still needed to be done,
In the first part, disambiguating the difference between authors/performers on the one hand and copyright owners and their respective constituents on the other hand, he then detailed for instance that certain rights of authors were owned by Collection Societies (SAMRO, DALRO and SAMPRA) by assignment, with all the rest of rights of authors and performers being owned by 3 multi-national record labels and publishers (Warner, Sony and Universal) as well as a number of local publishers. The only way for authors and performers around this was to own the copyright owners which some had done. Gilfillan explained how copyright owners remove the copyrights and income receipt rights from South Africa and the deleterious impact that has on the country. Therefore unless the author, performer or writer was a copyright owner, he/she could not own rewards.
Moving on Gilfillan addressed the current R2 billion trade imbalance in royalty licensing in South Africa that had grown tenfold since 2000 which he attributed in part to the Copyright Act 98 of 1978 being unfit for purpose for protecting and developing this country’s copyrights, Gilfillan then explained how an ongoing practice since the days of apartheid, the practice of removing copyright ownership outside of the country to the UK, Spain and other countries with the stroke of a silent pen, contributed to the trade imbalance. Using the authorship and ownership claims on the South African national anthem in various jurisdictions Gilfillan showed the publishing claims of Sony, Universal Music and Warner on the national anthem claims which should not be evidence.
Highlighting that this reflected a disturbing state of affairs where the Copyright Act 98 of 1978 had failed, Gilfillan pointed out that the main intervention brought by the new Copyright Amendment Bill was in the proper introduction into the fray of the State adding that the State was not just a user but also an owner and had been for a long time as had been others
The Acting Chairperson asked Mr Gilfillan to address the proposed Bill and his submission..
In respect of the second section of his presentation Mr Gilfillan then addressed each of five specific oppositions to the Bill which had had been brought by the Copyright Alliance, which he likened to disinformation put out by copyright owners allegedly representing the views of creators, authors and performers, In truth and fact, Gilfillan said, no creator, author and performer was consulted on the views put forward to the Portfolio Committee by the Copyright Alliance (with the exception of the book publishers). The views put forward by the Copyright Alliance represented the narrow interests of a few Board members of organizations in the Copyright Alliance (again the book publishers were excluded) and they could not evidence to the contrary as far as no consultation with members were concerned.
On the extension of users’ rights at the expense of creators’ rights Gilfillan pointed out that creators had more certainty with the provisions addressing 50:50 ratio on ownership of copyright between the copyright owners and the authors, performers or writers in Sections 4,5,6 and 8, regardless who the owners were, certainty where none had been previously. In South Africa, owners had been users for decades and the SABC, Lalela Music and the DSD would put forward as examples.. He pointed out that the ‘value gap’ had nothing to do with the Bill as such arose from the disintegration of the reproduction right and the rise of advertising and subscription share.
On the automatic usurpation of copyright Gilfillan rebutted the claims against the addition of “funded by” in Section 5 (2) pointing out that this clarified “made by” which had been used for decades by the sector to mean “funded by”. Gilfillan pointed out that that Section 21 (1) (c) had not changed and with the provisions of Sec 4,5,6 and 8 there was legal certainty where none had been before. The real issue he advised that no-one in the sector wanted the State to be involved as a copyright owner, which it already was, as such would introduce the State into the fray and disrupt a decades old status quo
On the introduction of the fair use doctrine, Gilfillan pointed out the need to engage “fair” use a matter of the future. He said that the business models of Google, You Tube and others was based on “fair use” being present in national law and without such there was wholesale copyright infringement afoot. It was thus better as more than 10 fair dealing countries had done, for South Africa to introduce “fair use” provisions into its laws.
On widening the gap Gilfillan confirmed that this as a phenomenon of the digital age that had nothing to do with the Bill. Bringing in fair use provisions brings those at the coalface of the “value gap”…..Google, You Tube and others into having to deal with copyright owners, it does not shield them. It put the country in a position to do as others had done which was to negotiate a settlement with these parties.
On local content, Gilfillan supported the Minister having the power to address this. He said that what we know is that if is there is a strong commitment to local culture there are strong local industries giving the example of the US and made the point that English is not the only language in South Africa therefor tipping the scale in favour of those who export only English to South Africa is not good policy.
Gilfillan thought the Bill was nearly there but not yet ready. He said that all present including those with contrarian view to his presentation would probably concur with the view that some tweaks are needed where challenges remain respectively. At the heart of these challenges is the need for improved, not diminished, legal certainty
On his last section as regards issues remaining with the Bill, Gilfillan made five points. Firstly there was no clause giving the State access to Collection Society and copyright owner work, authorship and ownership data, Secondly there were too many terms that were not defined and this was not good for legal certainty, thirdly there was a very important need to widen reference to the Electronic Communications and Transactions Act 25 of 2002 beyond technical measures as regards the safe harbour provisions and the rules governing data transactions. Almost all culture is digitized traded and paid for via data on the internet, fourthly it was important to include a “dramatic work” as a work eligible for copyright in line with all South Africa’s trading partners and lastly the inclusion of an “adaptation right in the rights of a sound recording owner in Section 9 which presently was not there.
Adv Alberts (FF+) asked the CA if it could protect authors, based on Mr Gilfillan’s statements. He asked Mr Gilfillan to state the aspects that needed to be improved in the proposed Bill. He also asked the CA and Mr Gilfillan how the Committee could find a balance to ensure that structures in place would not be destroyed.
Advocate Baloyi said that the CA had been fulfilling its role on protecting authors in spite of the negative claims by Mr Gilfillan. He agreed that some authors owned their copyrights, but the owning of rights by copyright owners was a worldwide practice. The law allowed an author to assign his or her rights to a copyright owner. When an author resigned from SAMRO, the copyright was given back to him or her. Removing the law would lead to a conflict on treaties.
Mr Gilfillan said that fighting over contractual agreements in courts was not feasible. He was in favour of ‘fair use, and the State having access to authorship and ownership data on copyright works which presently it did not. The relationship between data and copyright should be addressed in the proposed Bill.
The Acting Chairperson asked the Copyright Alliance and Mr Gilfillan to submit written responses to questions.
The meeting was adjourned.
- Southern African Music Rights Organisation submission
- South African Book Development Council submission
- Business Affairs – Nisa Global Entertainment submission
- Dramatic Artistic and Literary Rights Organisation presentation
- Dramatic Artistic and Literary Rights Organisation submission
- University of Cape Town presentation 2
- University of Cape Town presentation 1
- University of Cape Town submission
- Stellenbosch University presentation
- Stellenbosch University submission
- Copyright Alliance submission
- Recording Industry of SA submission
- Nisa Global Entertainment submission
- South African Institute of Intellectual Property Law presentation
- South African Institute of Intellectual Property Law submission
- South African Music Performance Rights Association submission
- Sean Flynn, American University Washington College of Law presentation
- Sean Flynn, American University Washington College of Law submission
- Publishers Association of South Africa submission
- We don't have attendance info for this committee meeting
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