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A draft Copyright Amendment Bill for South Africa

On 27 July 2015 the Department of Trade and Industry published its draft Copyright Amendment Bill for public comment. While there are many issues of South African copyright law that need addressing in order to bring it into the digital age, the Bill has been largely received with frustration and alarm.

The Bill introduces many new concepts which don’t belong in the Copyright Act, such as “phonograms”, which covers the same subject matter as sound recordings and “moral rights for performers”, whose legislative home is more likely the Performers Protection Act. “Craft works” are introduced as a new type of work but appear to cover the same things as “works of craftsmanship” which is a subset of “artistic works” in the current Act.

The Bill introduces a resale royalty for artistic works which may be a good idea, however, no study was done to assess the workability and effectiveness of this system and it may in fact not work to the benefit of artists, which presumably was why it was introduced.

The Bill also gives ownership of orphan works (works whose owners and authors are unknown or cannot be located) to the State, and declares that their copyright duration will be perpetual. This flies in the face of the very underpinning of copyright law as a social contract which grants a monopoly over a work for a limited time in order to incentivise creation.

On the positive side, the Bill introduces new exceptions for people with visual impairments that allow entities to convert copyright works into accessible formats, and provide them to visually impaired people, without the permission from the copyright owner. The Bill also introduces a “fair use” exception, although, its application is limited to certain circumstances, including parody, criticism, and professional advice.

Interested parties have been gathering and submitting their comments to the DTI and we eagerly await a much improved second draft in due course.

For more information, please contact Philippa Dewey.

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