Workshop on Copyright Amendment Bill
NCOP Trade & Industry, Economic Development, Small Business, Tourism, Employment & Labour
18 October 2022
Chairperson: Mr M Rayi (ANC, Eastern Cape)
The Select Committee on Trade and Industry, Economic Development, Small Business, Tourism, Employment and Labour held a workshop on copyright and issues relevant to the Copyright Amendment Bill that the Committee would begin processing shortly. The workshop took place via a virtual platform and Members were addressed by four leading scholars of copyright. All presenters had extensive experience in the legal aspects of copyright law. Members of the provincial legislatures were invited to attend the workshop as the Copyright Amendment Bill had been tagged as a section 76 Bill.
The four presenters were associated with different South African universities, although one presenter was retired, thereby ensuring that Members gained an understanding not only of copyright issues, but also the opposing approaches to copyright, especially in respect of fair dealing and fair use, which was a key matter that would be raised by members of the public and that Committee Members would have to address in the legislation. The first presenter provided a depth of understanding of the concept of copyright. He began with a quotation defining copyright and provided definitions relating to several aspects of copyright before addressing the dichotomy that saw ideas and information not receiving protection under copyright law whereas material expression of ideas was subject to protection. He provided a definition of fair dealing and fair use. The latter point was picked up by the second speaker who was addressing copyright exceptions and limitations and whose view of fair dealing and fair use was diametrically opposed to that of the first speaker. He provided a very different understanding of fair use. The third presentation was on collecting societies and how the societies were authorised to monitor the use of copyright works, negotiate with prospective users, give them licenses against appropriate remuneration on the basis of a tariff system and under appropriate conditions, collect the remuneration, and distribute it among the copyright owners. He also discussed the role of the Copyright Tribunal and the function that it fulfilled. Lastly, there was a presentation on copyright in the age of technology and the internet which referred also to treaties and international trade in relation to copyright. The latter was significant because concern about how the Bill engaged with international treaties was one of the reasons given by the Presidency for the remittance of the original Bill.
Members had a number of questions, but the requests for copies of the presentations suggested that Members believed that a great deal of valuable information had been shared with them and which needed further engagement. Members asked if they would be contravening copyright if they used those presentations when engaging with the provinces. A Member asked about a case where an employee created something in the course of his employment. He referred specifically to the “Please call me” saga. He also asked, in a case where a department had reproduced an author’s book without his consent, whether there was an exemption in that case as it had been done for educational purposes and also what remedies the author would have in terms of the current law. Was a translation a breach of copyright and was one incurring moral hazard if that translation was going to a country that was not part of the Berne Convention? How could the Committee reconcile the Copyright Act with the developmental state of the country where access to information was vitally important? Members asked whether any of the presenters had a conflict of interest in the matter of copyright or was a lobbyist for any group that had an interest in copyright. Other questions were listed in the virtual chat box.
The second half of the workshop would take place a week later and focus on issues relating to the Performers’ Protection legislation.
The Chairperson welcomed the panel members and all other attendees. He explained that, normally, when a Bill in the name of a Department was transmitted from the National Assembly, the Committee would invite the Department to brief the Committee on the Bill and Members would engage with the Department and then decide where to advertise for public involvement. Members of the public could submit their views in a written submission, but could also make oral presentations. This time around, with advice from the legal and procedural units, he had decided that the Committee should have a workshop first because the two Bills had several technicalities, particularly in their wording.
The Bills were earlier introduced to Parliament. Both the National Assembly (NA) and the National Council of Provinces (NCOP) engaged with the Bills. At the time, they were tagged as section 75 Bills, but a year later they were returned to Parliament by the President because he had some reservations. The Bills went through the processes in the National Assembly via the Portfolio Committee on the Trade, Industry, and Competition and then they were finally passed by the National Assembly. But one of the reservations of the President was the actual tagging of the Bill and he wanted them to be section 76 Bills so that provinces also participated in the process of making the law. The National Assembly agreed with that and passed the Bills as section 76 Bills. That meant that after receiving the briefing from the Department, the Committee would follow the process of advertising and also brief the provinces so that they also take the process forward. Because the Bills were now section 76 Bills, the Committee was not only going to focus on the reservations, but would look at the entire Bills, as would the provinces.
As the Chairperson welcomed the academics, he expressed the need to emphasise the importance of partnerships with the institutions of higher education to make SA’s democracy a highly functioning process because the development of such partnerships would enhance law-making. The workshop was an empowerment exercise to enable Members and legislatures to deepen their understanding of the Copyright and Performers’ Protection laws. However, the workshop was not dealing with the merits and demerits of the Copyright and the Performers Protection Bills. It was not a public hearing platform but a knowledge-sharing and empowerment platform. He emphasised that the general public would be invited to participate in the law-making process at a later stage. The provincial legislatures would also administer their law-making processes. He hoped that the workshop process would enable Members to find a symmetrical pattern and a better understanding so that the final legislation would contribute towards the realisation of national policy outcomes. It also had to contribute to inclusive economic growth, to the well-being of society and to improve policy certainty to attract much-needed investment and to lubricate the creative economy.
The Chairperson emphasised that there was much interest in the two Bills. As soon as the Bills were passed in the National Assembly, some organisations were already making their own submissions to the NCOP. Some organisations had already sent their submissions to the Chairperson of the NCOP. The Committee was not going to consider them yet as it was not at that stage. He was just indicating the interest as he had never seen so much interest as in those two Bills. When the Bills had previously been considered in the NCOP, he was not the Chairperson of the Committee, but he was a Member of the Committee and he could see the interest in the bundles of submissions from the public. So he was aware that there was much more interest in the two Bills. The Committee would welcome submissions because they empowered the Members of Parliament. There were many observers on the platform and so he emphasised that the workshop was about empowering Members of Parliament and Members of provincial legislatures. Participation was not open to observers.
Mr J Londt (DA, Western Cape) flagged a point. He was positive that Members would consider and apply their minds to the merits of the Bills. In the past, there was a perception that provinces and delegates might have come up with a predetermined idea on what they wanted to achieve - he was thinking about the Gambling Bill, where Members stood in the interest of their provinces and did not take into consideration any of the amendments suggested. They had submitted exactly the same Bill, and it was then rejected. In other instances, very valid arguments were made but not everybody paid full attention to those valid arguments. So he hoped that for the entire process, everybody that participated would go in with an open mind, consider the inputs that they received, and would make sure that inputs were incorporated to get the best possible outcome because the Bills had far-reaching consequences if the Committee took the wrong decisions. He thanked the Chairperson for the spirit in which he had opened the process and he was positive of the best possible outcome at the end.
Adv Charmaine van der Merwe, Senior Legal Advisor, Parliamentary Constitutional and Legal Services Office, was the facilitator. The first panel consisted of Dr Owen Dean and Dr Tobias Schonwetter.
Adv van der Merwe introduced Dr Owen Dean. Dr Dean received his BA LLB from the University of Stellenbosch and then a doctorate in copyright, also from the same institution. He was a specialist copyright attorney with an emphasis on litigation with the firm, Spoor and Fisher, which is a leading intellectual property rights firm, and he was there for 48 years conducting in excess of 50 High Court copyright cases. He also set up and operated the Chair of Intellectual Property Law at Stellenbosch University as a professor. Dr Dean was the author of Handbook of South African Copyright Law which is a standard textbook on the subject and he was an authority frequently quoted by courts. He was the principal editor of Introduction to Intellectual Property Law, which is also widely used as a textbook in South African universities. He had published in excess of 100 articles in South African and international legal journals and he served for 20 years on the Minister's Statutory Intellectual Property Advisory Committee and as chairman of the Copyright Subcommittee, and he was also a principal draftsman of eight of the Copyright Amendment Acts, and also a speaker on copyright at numerous seminars, including on behalf of the World Intellectual Property Organization (WIPO). He was also a member of the WIPO panel of arbitrators.
Dr Owen Dean began with a quotation defining copyright: Copyright is the exclusive right concerning a work embodying intellectual property (i.e., the product of the intellect) to do, or to authorise others to do, certain acts concerning that work, which acts represent in the case of each type of work the manners in which that work can be exploited for personal gain or profit.
Dean: Handbook of South African Copyright Law p 1 – 1 (Published by Juta & Co.)
Dr Dean provided many definitions relating to copyright before addressing the dichotomy that sees ideas and information not receiving protection under copyright law whereas material expression of ideas is subject to protection. He added that similarity did not necessarily mean copying in that context. The discussion included the moral rights of an author and how and when those rights were infringed. He provided examples of exceptions and then explained the fair dealing/ fair use debate as follows:
Fair dealing involves listing a closed number of defined exceptions;
Fair use entails giving the court the discretion to determine that a particular activity should be exempted;
The former creates certainty but is rigid;
The latter creates uncertainty but is flexible.
Adv van der Merwe thanked Dr Dean and introduced the second member of the panel, Dr Tobias Schonwetter. Dr Schonwetter was an Associate Professor at the University of Cape Town (UCT) Law Faculty, the director of the Intellectual Property Unit, and the founding director of the iNtaka Centre for Law and Technology. He specializes in intellectual property law, cyber law, and innovation. Dr Schonwetter is also an associate member of the Center of Law, Technology and Society at the University of Ottawa in Canada. He joined the Department of Science Innovations Open Science Advisory Board in 2019, and he serves on UCT’s press editorial board. He has worked as a consultant for the World Intellectual Property Organization in Geneva, Switzerland, and previously, was a senior manager for Technology and Innovation law at PricewaterhouseCoopers (PwC) South Africa and the regional coordinator for Africa and legal lead in South Africa for creative comments, economists, and a guest editor for the African Journal of Information and Communication. His PhD thesis concerned copyright exceptions and limitations which was what he would be speaking about in the workshop. Over the years, he led numerous Development Innovation oriented research and capacity-building projects, including the Open African Innovation Research Network, which opened the review of the South African Copyright Act in 1978.
Dr Schonwetter addressed the matter of copyright exemptions and limitations. Typically, copyright existed for a duration of 50 years from the end of the year in which the author died, so if the author wrote a work early in his life and lived for another 50 years, that copyright would last for 100 years, many more years than the copyright of a work he wrote in his last year of life. In any case, the 50 years was much longer than most other types of intellectual property.
“What was not as clearly defined were the exemptions from and limitations to copyright and Dr Schonwetter disagreed strongly with Prof Dean on that point. One view was that one should really aim for the highest possible degree of protection, and all else would fall into place. Stakeholders who support the fair dealing approach are not against all exceptions; they want a closed list of clearly defined circumstances in which copying specific types of creative work would not unfairly deprive the creator of earnings. However, learning is increasingly recognized as foundational to development and people should be sceptical of laws that remove knowledge from the common pool without clear justification. Strong copyright protection on the one hand is important, but equally, society needs robust sets of axes enabling copyright exceptions, because only if you have both, do you have an adequately balanced system. That is something that SA’s IP policy also puts forward and that policy should in fact inform law-making in that space. It is absolutely important that we create legislative frameworks that reward innovation and creativity. If you create something as an author, you must be rewarded for the innovation and creativity. Copyright protection is not an end in itself. It is not just about protecting the copyright owner, but it's also about protecting users and the public interest. So ultimately, the aim must really be to strike that optimal balance between copyrights on the one hand, and copyright exceptions implementations on the other but a system of copyright exceptions implementations within the frame of the three step test, which I will return to very briefly, looks very different for South Africa than it looks and should look in other countries.”
Dr Schonwetter stated that all countries had copyright exceptions and limitations. In fact, there were treaties that required member states to have certain exceptions and limitations in the law. They did that to promote the public interest and to respect users legitimate interest in using copyright protected material in certain circumstances, without the permission of the rights holder. One approach was to create very detailed, long, inflexible lists of specific exceptions and limitations. The second approach, on the other side of the scale, was fair use, which was a broader provision that basically said you could use someone else's work, as long as it was fair. The legislation provided certain factors or criteria that courts ought to take into account when they determined, on a case to case basis, whether certain uses were fair or not.
Adv van der Merwe handed over to the Chairperson for the discussion session.
Mr M Mmoiemang (ANC, Northern Cape) appreciated the information provided by the presenters and noted how the copyright law had evolved from its first enactment. He had heard about the influence of the Vienna Convention, but also about the treaties that the country had signed to ensure that the country was not wanting in terms of corporate copyright law. He asked about the case where an employee created something in the course of his employment. He referred specifically to the “Please call me” saga between the employee and Vodacom. The matter had been going back and forth from the court. Could the presenters give members an understanding of whether under the current law, the litigant would be able to assert the originality of his product? His second question was concerning the aspect that dealt with the published edition of a book. In the Northern Cape, an author took the Department of Sports, Arts, and Culture to task because they reproduced his book without his consent, and he had seen that the HOD of Sports, Adam Carter, apologised to him. Clearly, it was a matter of infringement. What remedies would that author have in terms of the current law? That characterised for him, the infringement in terms of his rights but when he had read the exemptions, he got a sense that because the reproduction was for school purposes, it might be permitted as an exemption. Did it fall under that as a special case so that it was not in conflict with the normal expectation of the copyright of the work?
Ms Cayla Tomas Murray (DA, WCPP Member), placed questions on the chat as she had connectivity issues.
Mr M Dangor (ANC, Gauteng) had a question relating to translation. If he was translating something, and that translation was from the original, was he incurring moral hazard at the time when the translation was being done? If that translation was going to a country that was not part of the Berne Convention, what were the fall back methods then, internationally? SA had 11 official languages. When one translated a textbook to another language, did it not fall under the question of copyright for that particular author?
Mr T Brauteseth (DA, KZN) asked the presenters how the Committee could reconcile the Copyright Act with the developmental state of the country where access to information was vitally important.
Mr Londt suggested that the contact details of the Members be provided to the public to contact them so they would have sufficient information to make informed decisions at the end of the process. He also appealed that the presentations be made available to Members so that when they went to the provinces, they could go with those presentations, but he did not want to contravene any copyright law by taking the presentations to the provinces.
Assoc Prof Malebakeng Forere, a panellist, thought she should ask some questions that could benefit Members. She asked Prof Dean to look at assignments and licences and to bring out the differences between the two in the light of reversion rights in respect of content. Secondly, when Prof Dean talked about the purpose of copyright, which was in the initial slides, and he quoted Article eight of the US Constitution, she thought that maybe Members could have been uncomfortable with him telling them what the purpose of copyright law was by quoting from the US Constitution. He needed to indicate to Members whether the SA Constitution had any clause in respect of the main purpose of intellectual property law. And if there was no such law, whether there was anything from South African law that the Committee could look at regarding the purpose of intellectual property, and in particular, copyright law. And if there was no such a provision, he needed to highlight to the Members that perhaps it was time for them to go back and decide what it is that they would like to see in respect of intellectual property law, so that they did not have to look at other jurisdictions. Many countries actually looked to the US when it came to copyright because it was much more doctrinal and had been codified into the US Constitution.
Assoc Prof Forere was glad that Members were picking up the differences between the two speakers as it was a matter of ideology. As the Members knew, there were capitalists on one hand, and on the other hand, socialists and they all had credible ideas, but it just depended on whom one wanted to align with. And the same applied to the wonderful topic of copyright law or intellectual property. She could tell Members that if they did not protect intellectual property, they were going to lose out on the economy. There was another school of thought that said the less you protected, the better the information freely available. All she was saying was, at the end of the day, Members had to decide on which school of thought they were aligning with. What should the purpose of intellectual property be in the country? She provided an example that recently happened at her university. It related to the slogan: radical economic transformation (RET). A Professor was ridiculed for supporting RET because he came from another school of thought. The Marxists, and the capitalists, were angry at him, even suggesting that he was not a well-qualified economist. In actual fact, he was; he just came from a different school of thought. And copyright law puts everyone in that position. So they had to decide, or Parliament had to decide, what it was that Members would like to see.
Mr Mmoeimang added one point that he should have raised previously and that was the concern that the Bills that were referred to the NCOP talked to the laws concerning many SA artists who perished as paupers while the artistic work continued and the descendants could not enjoy the benefits because the system did not protect them. He suspected they did not register their work or the system did not make provision for them and then there was obviously an assignment that talked to the transmissibility of the copyright as ‘testamentary disposition’. In the instances where the work was not covered by testamentary disposition, could one talk about the interstate disposition or was it addressed in the Bill so that the distribution of funds faced by many of the poor artists was being addressed?
Mr Dangor requested copies of the presentations but asked if it would contravene copyright if they used the presentations in the province. He said proceedings were being presented on YouTube and the Members could listen again at any time.
Dr Dean said he would like to make a couple of comments on Dr Schonwetter’s presentation; just issues that arose out of his original presentation. He added that his own presentation could be distributed as far and as wide as they liked to everybody and anybody. He thereby gave Members an unlimited license for his presentation to be reproduced and broadcast and everything else that might be required. He had also provided a written version to the Committee Secretary.
He began with a couple of points arising out of Dr Schonwetter’s presentation. Copyright law and intellectual property law are not the same (copyright is not a form of intellectual property, it is a way of providing a certain level of protection for certain types of intellectual property). When a person got patent protection, one got what was known as absolute protection, an absolute monopoly. The person made a claim and thereafter could prevent anybody from doing what was covered by the claim. Even if someone arrived at the same thing totally independently, and had never heard of the person’s invention, having done their own independent research, if what they came up with was the same, everything remained the claim of the original patent holder. Copyright was different. As he had said in his presentation, copyright did not protect ideas or information. It only protected the material expression of ideas or information. He gave the example of breakfast cereals in the presentation. So the monopoly copyright gave a qualified monopoly. It was not a monopoly on any thought process, any idea, any information, any concept; it was a monopoly on the way one expressed one’s own version of that idea or concept, etc. So it was very easy to use the information contained in somebody's work without infringing copyright. One could, for instance, read an article or digest it and come up with one’s own version of that same information that did not infringe copyright. So there was a very distinct difference between the kind of protection given by a patent and the kind of protection given by a copyright. Copyright did not impact on what was in the public domain to anything like the extent that a patent did.
Dr Dean noted that Dr Schonwetter had said there were three different categories of exceptions worldwide, what he called his long list and what would generally be classified as part of the fair dealing approach because the fair dealing approach had a literal meaning and a figurative meaning. A closed list of exceptions provides legal certainty. There is none in leaving it to a judge to decide when it is fair and in the public interest to copy a creative work.. Dr Dean thought that one had to be very careful in allowing the courts to serve the function of the legislature in making law. That was one of the criticisms of the fair use approach.
He agreed that in fair use, there were four criteria or four considerations that had to be taken into account when making an assessment as to whether fair use had taken place and Dr Schoonover had enumerated them. In Dr Dean’s textbook, he said that those same four factors could be used in assessing the fairness component of fair dealing. That was not to say that fair dealing equalled fair use. When one had to approach the question of what was fair in the abstract, those four criteria used in the American Fair Use approach were very useful to adopt. He would take it no further than that.
Dr Dean added that the Australian Law Reform Commission report acknowledged that the four factors underpinning fair use complied with the Berne convention’s three-step test, but fair dealing remains the Australian approach to copyright law. (there is no such thing as a ‘three-test model’). Many disagreed with that view, including his colleague at Stellenbosch University, Professor Sadulla Karjiker, who recently published a very well-reasoned article which was taken up in a new booklet, he had published, called “The gift of multiplication”. He would be very happy to make the little booklet available to Members of the Committee who could then read what Professor Karjiker had to say about fair use and the three-test model. But what was interesting was that in Australia, although the Law Commission found that fair use did comply, they thought it was a three-step test the Australian legislature, the Parliament, should apply and they had not adopted the three-step test in their own law. They regarded it as something which they did not want to put into the law, despite the Commission's finding.
Addressing the question put by Mr Mmoeimang about the “Please call me case”, Dr Dean said that it was not a copyright infringement case but a contractual issue. What happened was that the person who devised the “call me” system, went to his management and said to them that he had dreamed up the system, which he was prepared to convey to Vodacom as long as Vodacom was prepared to give him a cut in the profits. And so although it had some affinity to the employer and employee situation, it was not a copyright case. It was a case of whether or not the contract existed at all, and secondly, whether Vodacom had complied with the terms of the contract. So it was a bit misleading to think of it as a copyright case.
About the question of reproducing a book that would be used in teaching and whether that would be infringing copyright, Dr Dean said it would infringe copyright, without any question at all. Then one should look to see whether it fell within one of the exceptions. The existing Act had some exceptions for teaching in the education situation and one would have to look closely at the facts of the case to see whether that exception applied. He did not, for a moment, contend that the current Act was comprehensive in providing for all the exceptions which needed to be provided for. There was a distinct necessity, for further and better exceptions in his view, but they should be done within the legislation and not be made by judges. He did not know that there was anybody in South Africa who would contend that there was no need for more exceptions.
Concerning Mr Dangor’s question about translations and the possibility of a translation being made in a non-Berne Convention country, Dr Dean assured him that not many countries in the world were not members of the Convention, but agreed that there were some. Taiwan was one. If that happened, then one had to look to the local law of that country to determine whether the country was going to protect the works of South African authors, a translation being a work in its own right. Without Mr Dangor naming which countries were involved, it was difficult to say whether there would be some relief available to a South African author. But the question raised the merits of belonging to the international conventions and getting reciprocal copyright protection in other countries. It was very important that SA belonged to those treaties and complied with the terms of the treaties. A translation would apply to any language; there was no limitation as to which languages could be involved.
He responded to Mr Brauteseth’s question of there being two different approaches for exemptions and how one could reconcile the two. It was difficult to reconcile the two because the approach was different. In his view, it was a question of opting for whether one wanted Parliament-made law or whether one wanted judge-made law. If Members were happy with judge-made law, then they did not have a problem with fair use. If they believed that substantive law should be made in Parliament and not by judges whose job was to interpret the law, not make law, then they would opt for the fair dealing approach.
Dr Dean noted that Professor Forere had raised a couple of issues. While he had attempted to explain the difference between an assignment and a license, it was simply a permission to do what would otherwise be an infringement if the permission was not forthcoming. So if one performed any of the restricted acts without the permission of the copyright owner, one infringed but if one did not want to infringe, then one had to get a license, which was a permission. An assignment on the other hand was a transfer sale of the right, which could be the whole copyright or any part of the copyright. And once one became the owner of the right in question, one could do with it whatever one wanted. Prof Forere had also raised the question of reversionary. Right now, in the current law, there was a very limited reversionary. It was almost an historic relic but it came to the fore in the movie, “The lion sleeps tonight”. He had handled that case for the estate of Solomon Linda. Throughout the whole historical evolution of South African copyright law, there was a time namely from 1916 to 1965, when the British Copyright Act of 1911 was South African law and known as the Imperial Copyright Act. That changed when SA’s 1963 Copyright Act came into operation which abolished the application of that British law. But the law said, insofar as works were made during the time when the British law was in operation, the circumstances of ownership of copyright and subsistence of copyright continued to apply as they did at the time under that law. Solomon Linda wrote the song during that period, and he was then assigned the copyright in 1953. That law had a very strange provision that if one assigned copyright during a person’s lifetime, then 25 years after the person’s death, the copyright would revert to the estate of the author. That happened in the case of Solomon Linda who died in 1967. The copyright had been assigned to various other people, but the copyright reverted to his estate, not to his heirs, because that was what the law said. And so the litigation which he, Dr Dean, had brought, was brought in the name of the executor of Solomon Linda's estate. That was the only circumstance in SA law at present where there is a reversion of rights. So, there might be other instances where the facts would allow that principle to apply, but they would be fairly few and far between.
He noted that Prof Forere took umbrage because he had referred to the American Constitution in stating the purpose of copyright. He was not a supporter of American copyright at all. In his view, the American approach was not a good approach. It was at variance with the approach used in most countries in the world. Part of his lack of enthusiasm for fair use stemmed from the fact that it was very much an American-made approach. The only reason why he referred to the American Constitution was that it was a succinct clearly-stated proposition. He was using it as a quotation as he would use a quotation from a major writer like Charles Dickens or somebody like that. He was not identifying himself in any way with the American approach or suggesting that SA should follow that approach.
Dr Dean explained that the SA Constitution did not specifically refer to intellectual property. At the time when the Constitution was confirmed by the Constitutional Court, a hearing was conducted to test whether the new constitution complied with certain principles. There was a hearing before the Constitutional Court where he argued the issue of intellectual property in the Constitution. His argument did not carry the day, because the court decided that clause 25, which deals with property, adequately dealt with intellectual property which is a form of property. And so when section 25 protected property against various actions, it also included intellectual property. He agreed with that in some ways. Considering intellectual property from a capitalist versus socialist approach, he considered intellectual property to be a capitalist type of instrument. It fulfilled a very useful purpose and then when one talked about exceptions to copyright and how freely they should be granted, one had to bear in mind the old proverb: “Don't kill the goose that lays the golden egg.” If one granted too many exceptions, one would destroy the purpose and function of copyright and it was not going to provide the incentive which it was supposed to be providing. What one had to take into account was that SA belonged to international conventions. The Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) stipulated in their mandates that member countries had to provide intellectual property rights. So, as long as SA was a member of those conventions, it had to provide protection as prescribed in the conventions. If SA decided that it did not want to protect intellectual property or to give the requisite measure of protection to intellectual property, then the country should resile from these treaties. If one belonged to an agreement, one had to fulfil the terms of the agreement. So SA did not have a choice in the matter.
Dr Dean addressed Mr Mmoeimang’s question of testamentary or transferring copyright by testamentary disposition. That was one of the recognized forms of transferring copyright and would apply whether there was a testament or in the case of an intestate situation. Copyright was an asset in an estate in the same way as a house or any other form of property was an asset in the estate. When the deceased passed away, the estate passed to an executor, and there was a process that followed. It had nothing to do with copyright law. It was just a factor of the normal law of property.
Before he dealt with the specifics of the questions, Dr Schonwetter cautioned everyone not to make Copyright Law a battle of ideology; it was not and it really should not be. It was not about capitalism or socialism. He was neither and he did not want anyone to put him in either of those two categories. All he was trying to put forward was that he was trying to achieve a balance between the rights on the one side, and he was not arguing for doing away with those rights; that would be a socialist approach. He was not putting forward maximalist opinions as far as exceptions and limitations were concerned either. The more digestible terminology for him in that context would be about foregrounding individual interests or foregrounding utilitarian interests. That made it a little bit less political. He did not want to entertain a back-and-forth between Professor Dean and himself. However, in response to his remarks, he was not comparing patent law and copyright law; he was just pointing out that there was a very different duration in those laws. He and Dr Dean would have to respectfully agree to disagree on whether there were two or three categories. The discussion was just not detailed or nuanced enough.
Dr Schonwetter stated that the continued argument that courts should not make law confused him. Firstly, it showed a problematic distrust in SA’s court system, where the country had always charged the judges with developing the law. Further, the very essence of how law-making worked in the country depended on judges executing part of that responsibility. He almost wanted to venture so far as to say that it was rather patronising to believe that the judges were not able to do that. And ultimately, SA should let judges interpret the law rather than make it, and that was, in fact, actually just what was being proposed. The country needed a statute that had certain requirements in the law if Parliament were to opt for fair use, and then it would be left to the courts to interpret those provisions.
Dr Schonwetter explained to Mr Brauteseth that academia was all about contrasting views and that was why the invitation had been extended to the speakers. They could provide a whole range of arguments in that space and Members needed to consider them all. His intention, when he was teaching, was not to convince anybody of anything. People who came into a room afresh, without having been exposed to copyright, started off with the assumption that copyright law was all about protecting the individual authors, and it was quite important that those authors were adequately protected and did not die as paupers, as another Member had pointed out. The law had to consistently be adjusted and updated to offer and award appropriate protection. That was not the topic of his presentation. His presentation focused on exceptions and limitations. And the richest discussions, especially in his Masters class, happened once he had put the room into the know that the discussion was a little bit more nuanced and that there were other views and a counter-narrative to foregrounding the protection of the individual creator, i.e. that the public interest considerations needed to be duly considered. Then the imbalance was taken into account.
The main aim of his 40-minute or so intervention was that once Members engaged with the Bills, they should not lose sight of those nuances and should engage in the thought processes that made sure that going forward, they confirmed and, if necessary, increased the protection of creatives so that they continued to have adequate incentives in the space. But, Members should never lose sight of the fact that the way innovation works require the preservation of adequate access mechanisms, and probably it was very necessary that access in terms of digital technologies increased. So it was not about how to reconcile the two views, it was just to put Members into a space to make the laws from a balanced perspective, as demanded by the intellectual property policy.
Dr Schonwetter addressed the questions in the virtual chat box from Ms Murray who asked what consideration of protection should be given to TikTok users, YouTubers, bloggers, Instagramers, and other online social media content producers. From a copyright law perspective, they did produce content subject to the terms and conditions of those social media platforms that they engaged with and the content that they produced was typically owned by them. Whether on that level, if copyright infringement occurred, sufficient enforcement mechanisms would be available, especially when the infringing activity took place outside the boundaries of South Africa, was a completely different question. That was something that statutory copyright law in South Africa alone could not solve. Concerning how the law distinguished between folk art and original works, Dr Schonwetter’s concern was that the two might be conflated, especially in the case of online content undermining the creator. That might be a conversation for another day because it opened a can of worms, and they would be venturing into the space of another piece of legislation that was not yet fully enforced, i.e. the Intellectual Property Laws Amendment Act, which had tried to extend protection to works of folklore but because it did not fulfil some of the requirements mentioned earlier for copyright protection, it was decided that that piece of legislation should stay within the realm of copyright and other intellectual property laws. He added that Professor Dean had been quite vocal as to what approach he preferred. If that was something of interest, he could offer a follow-up conversation.
On Ms Murray’s question on why SA did not have an online copyright database, Dr Schonwetter agreed that some countries had such a database, including Kenya, but he did not know how such a database would be maintained because of the way in which copyright arose in the first place. If one wrote a blog, or vlog or posted something on social media, that material was copyright protected immediately. How did one make sure that all of that content was captured in the database? The statistics of content creation were mind-boggling: on any given day of any given week, humankind currently produced as much material as was produced in 2 000 years prior to digital technologies being available. From a practical point of view, it would be very difficult to create a database that would comprehensively include all works, let alone deal with who the author might be, etc. Perhaps in the future, technology such as artificial intelligence would be able to deal with big datasets going forward, particularly through blockchain technology. The workshop would get into that in the section on collecting societies. The prospective potential of technologies was fascinating.
Dr Schonwetter responded to the question on translations. It was very clear that translations were adaptations of original work and therefore only the rights holder had the exclusive right to make an adaptation or a translation. An adaptation of a work without the permission of the rights holder would be an infringement of copyright law. The question about what would happen if something was sent to another country, triggered two comments. Firstly, whether an infringement took place or not, it did not matter whether it was sent overseas, but if something was created and was still within South Africa, that would be a copyright infringement. It also raised questions about the issue of parallel importation, which was something the Committee should consider when it engaged with the Bill, but he could not comment on the Bill, except to say that future legislation in the copyright space should adequately address the issue of parallel importation, which was an import and export of copyrighted materials from other places without the permission of the domestic rights holder. Regarding artists dying as paupers, again he could not talk about the Bill but the Committee had to make sure that future legislation overcame that issue in so much as copyright could do. It was often not copyright law to blame for such a situation, but contract law that overruled the provisions that copyright law would have put in place. For example, if an artist created something, copyright law would determine that the artist would then also be the owner of the copyright to his or her music but, more often than not, the artists signed contracts with intermediaries, like record companies and others, that were less than favourable in terms of how they would subsequently benefit from their own music.
Dr Schonwetter said that one should not assess whether a certain use was permissible by just asking if it fulfilled the three-step test. One had to ascertain whether a case was permissible under a domestic exception and limitation found in fair dealing. The issue with the three-step test came in when one wanted to confirm whether any proposed domestic legislation was compliant with international law. He hoped his answers had not been too technical.
The Chairperson thanked the two presenters. He knew the aim was not to influence Members but to clarify the concept and the context of copyright law. As Members, they should not be confused by the contestation between the panellists. The job of Members was to deal with the legislation.
The Chairperson reconvened the workshop for the afternoon session.
Adv van der Merwe introduced the second panel which was going to deal with two very different topics from what Members had heard in the morning, and would provide detail on collecting societies as well as the tribunal. So it was quite an interesting area. It was very different from what they had heard so far. The next speaker would speak on treaties and international trade, going a bit more into the international arena and South Africa's obligations.
Adv van der Merwe introduced Dr Desmond Oriakhogba, a senior lecturer at the Department of Mercantile and Private Law in the School of Law at the University of Venda. He was also an independent consultant for the World Intellectual Property Organization (WIPO) and tutored in the WIPO distance learning program. He was Associate Editor of the South African Intellectual Property Law Journal and the author of the book, “Copyright Collecting Management Organizations and Competition in Africa, Regulatory Perspectives from Nigeria, South Africa, and Kenya”. The topic was: Collective Management Organisations.
Dr Oriakhogba, in presenting on collecting societies and the copyright tribunal in South Africa, first gave some definition of what was meant by collective management of copyright:
“In the framework of [collecting management], [copyright owners] authorise [collecting societies] to monitor the use of their works, negotiate with prospective users, give them licenses against appropriate remuneration on the basis of a tariff system and under appropriate conditions, collect such remuneration, and distribute it among [copyright owners]. [...] the collective nature of the management may, and frequently does also involve some other features corresponding to certain functions going beyond the collective exercise of rights in the strict sense.” - Ficsor, M Collecting Management of Copyright and Related Rights (WIPO 2002). Also see DO Oriakhogba Copyright, Collecting Management organisations and Competition in Africa (Juta, 2021)
Collecting societies were mostly non-profit organisations of right holders, although there were some for-profit liability companies, agencies, and partnerships, that controlled the world repertoire of copyright works in music, sound recordings, literary and artistic works, cinematograph films, etc. The core legal and economic functions were to monitor the use of creative works for rights holders, negotiate licenses and collect royalties from users and distribute royalties among rights holders. Some societies took on social functions. Dr Oriakhogba presented the historical background, various regulations, and provisions.
He stated that the Copyright Tribunal was established under section 29 of the Copyright Act. Matters were referred to it in cases such as those by users of needle time collecting societies in cases where the users and collecting societies could not reach an agreement on the amount of royalty payable (s9A1 Copyright Act; s5(3) Performers Protection Act).
Adv van der Merwe introduced the next speaker, Assoc Prof Malebakeng Forere, Professor of Intellectual Law and Investment Law at the University of Witwatersrand. Where she specialises in foreign investment law and intellectual property law, particularly patents and copyrights including the protection of indigenous knowledge. She holds an LLM from the University of Essex in the UK and a PhD, which she obtained Magna Cum Laude from the University of Bern in Switzerland. Prior to joining the University of Witwatersrand, she lectured various legal subjects at the University of KwaZulu-Natal, one of which was intellectual property focusing on access to medicines. She had published extensively in accredited South African journals and international listed journals. Dr Forere was also the sole author of a book called “The relationship of WTO law and regional trade agreements in dispute settlements, from fragmentation to coherence”. She was also a member of the African International Economic Law Network and the Society of International Economic Law. She had done consultancy work for local and international institutions, such as the World Bank, and was also an advocate of the High Court of South Africa.
Assoc Prof Forere addressed Members on copyright in the age of technology and the internet, referring also to treaties and international trade in relation to copyright. She presented some challenges for the legislature to consider:
- the scope of copyright protection in the digital environment;
- the responsibility of online service providers, as in active vs passive hosts;
- the rights of performers in the digital environment such as YouTube singing stars;
- the protection of databases;
- the peer-to-peer file-sharing systems such as Napster;
- the 4th Industrial Revolution and Artificial Intelligence (AI), and the copyright for works created by AI.
She referred Members to the DABUS case where SA granted a patent to a design made by AI, although other countries denied that AI could patent inventions.
The Chairperson noted that some Members from provincial legislatures had left the platform to attend plenary sessions.
Ms Murray thanked all the presenters as the sessions had been very helpful.
Mr Dangor asked for electronic copies of the presentation.
The Chairperson asked that all presentations be distributed.
Prof Dean added a point about the case of fair use versus fair dealing. It was necessary to keep an eye on what other African countries were doing; particularly the Organisation of African Unity had expressed the wish to standardise legislation on intellectual copyright across the continent. He noted that the African Regional Intellectual Property Organisation (ARIPO), the African arm of WIPO, had produced a model law on copyright. It was a good document and it was the voice of Africa. It enabled legislators to keep pace with other African countries. The approach to exceptions was very good and there was merit in the Committee taking a closer look at the document.
Dr Oriakhogba stated that Nigeria had used fair use in its recently passed Copyright Bill which was currently awaiting the President’s signature. Members might wish to look at that document as it had a very good approach to exceptions. Liberia also had good copyright legislation.
Assoc Prof Forere asked if Prof Dean had anything to say about her presentation.
Prof Dean said that it was an excellent presentation and very useful but they were in different camps when it came to fair use. He was mystified as to why SA had not signed the World Intellectual Property Organization (WIPO) Treaty. In 1996 when the Convention came into being, South Africa was one of the first countries to sign the Convention but that signature had never been ratified. It was long overdue that it was signed and its terms were implemented in SA law.
Assoc Prof Forere said that it was unfortunate that they did not agree. But she had read cases and Prof Dean had litigated cases. If the legislature had not given a broad definition of literary works, it would have been difficult for the courts to protect the creators of the Nintendo in the court case that Prof Dean had been involved in. The point was that the wide definition was beneficial in copyright cases.
Prof Dean said that the court had found that the Nintendo game fell directly under the law. He believed that was interpretation, not the courts making law or making new exceptions, which was making new law and that was what fair use expected of the courts. The courts had been very careful to respect the defined functions of the institutions and therefore to stay clear of making new law. There was a distinction between applying the law and determining the law. In the Nintendo case, the court had not changed the definition of film - it had applied the facts to a microchip producing images on a screen.
Assoc Prof Forere said that under fair use the courts would have to apply the given criteria. They would not be making new laws as the courts had to follow those criteria. It was not a case of giving a blank cheque to the courts. In the Nintendo case, the courts were able to apply the criteria relating to the film.
Prof Dean stated that he thought the criteria were very relevant and there were good criteria. He referred to Professor Lawrence Lessig, Professor of Law and Leadership at Harvard Law School, who opposed fair use because engaging the law was too expensive and too slow for the average American.
The Chairperson said that the panellists were welcome to put their views in writing and submit them to the Committee.
Mr Brauteseth asked the panellists to confirm that none of them had any conflict of interest in the topic. Were any of them in the employ of a lobby group? He did not wish to offend anyone and he had enjoyed the academic to and fro as he was doing a Master's degree, but it was important for Members to know.
The Committee Secretary suggested that Adv van der Merwe could inform the Members of the conditions under which the panellists participated.
Adv van der Merwe informed the Committee of the terms of reference for the panels were to ask people who were experts in the various aspects of the law of Copyright. She had introduced each speaker with a short blurb that informed Members of the legal expertise of each panellist. She had not asked panellists if they had any particular conflict of interest in copyright. She had explained that the workshop was being held because copyright was a very complex field and the panellists could give Members insight into the field. She had forbidden the panellists to speak to any aspect of the Copyright Bill that was before the Committee. That had made it difficult for the panellists as recent developments were closely aligned to the content of the Copyright Amendment Bill and so she had kept a check throughout the presentations that no one was referring to the Bill or the contents thereof. The panel members were welcome to put their personal views when the Bill was opened for public participation. The views presented that day were well-known public views. The Members of the Committee had also to understand that there were strongly opposing views on fair use and fair dealing and that would become very obvious when the public was requested to comment. Members needed to understand that those views were legitimate views and that was part of the dilemma that the Committee would face when addressing the Copyright Amendment Bill.
Prof Dean explained that he had been a partner at Spoor and Fisher for over 40 years but he had retired some years so he was no longer associated with that legal firm. He had also retired from Stellenbosch University so his only interest was the purity of the law. He had updated his textbook 15 times to keep it current. He wanted to ensure that SA Copyright Law was the best in the world. He held no brief from anyone.
Mr Dangor asked that the Committee obtain the African Union proposed document as that would assist the Committee, especially as it could become a treaty in the future and SA would have to consider that.
The Chairperson suggested that Mr Brauteseth should be satisfied with the response in respect of the panellists not having conflicts of interest in respect of the views put forward.
Assoc Prof Forere agreed with Mr Dangor that the African document was important but informed him that it was an ARIPO document and not an AU document. It was a good document to look at for harmonisation purposes but she cautioned that SA was a very sophisticated country and other African countries looked up to SA to set the standards. SA was definitely the main country where FDIs were located and that led SA to experience many things before other countries. SA could not afford to drop the ball.
Prof Schonwetter agreed that there had been a clear brief not to speak of the merits and demerits of the Bill and it hard to adhere to that but all presenters had done so, despite being tempted to use it as a peg for some ideas. He explained that it was well-known that if one invited four academics to a debate, there would be five or six different opinions, but he hoped that precisely that contestation between academics would assist the Committee to understand the terrain and the diversity of opinions. All presenters’ objectives were to work towards a high quality legislative Bill and a better copyright framework. He stated that he had categorically no conflict of interest in the copyright industry to declare.
Dr Oriakhogba concurred that he had no conflict of interest in the copyright industry. Like anyone else in the creative industry, he wanted to see the best possible copyright legislation in the country. He said that SA was not a member of WIPO or ARIPO and those in the foreign diplomatic space would know why that was so. There was no copyright law in the AU, and the effort to establish an IP framework or protocol was still very much an embryo. Africa wanted to establish that framework and even looked to SA to assist in doing that but it was critical that IP legislation addressed the local environment. It was particularly important when trying to attract investments. Having excellent copyright laws was a giant in supporting investment and making gains in the economy. The legislation had to be balanced and Members had to take a balanced view of the terrain.
Mr Brauteseth said that it was the job of parliamentarians to ask the difficult questions. He thanked the presenters for their responses and also for the valuable input they had made into the process.
The Chairperson stated that the second part of the workshop would take place the following Tuesday 25 October 2022 at 10 am and the focus would be on the Performers’ Protection legislation. Members were excused from the plenary that day. After the workshop, a briefing would take place to introduce the Bills to the Members. Although Members of the provincial legislatures had been invited to attend the workshops, that attendance did not replace normal legislative and consultation processes.
The week of 1 to 5 November 2022 would be dedicated to provincial briefings together with officials from the Department of Trade, Industry, and Competition.
Assoc Prof Forere suggested that maybe the Committee should ask on which points the academics agreed.
The Chairperson asked that the presenters provide a short paper on their positions and the areas in which they agreed. The panellists could also make submissions as part of the public engagement process. The Members would also learn more about copyright from the public submissions.
The meeting was adjourned.
- Exceptions and Limitations (Tobias Schonwetter)
- Media Statement: Workshop On Copyright Amendment Bill Empowers Select Committee In Preparation For Public Hearings
- Copyright In the Age of Technology and the Internet (Malebakeng Forere).
- The Basics of Copyright Law (Owen Dean)
- Collecting Societies & the Copyright Tribunal (Desmond Oriakhogba),
- [B13D—2017] Copyright Amendment Bill
Rayi, Mr M
Boshoff, Ms SH
Brauteseth, Mr TJ
Dangor, Mr M
Landsman, Mr ER
Londt, Mr J
Mamaregane, Ms ML
Moshodi, Ms ML
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