South Africa’s “Much Improved” Copyright Amendment Bill Tabled in Parliament.
Amending the Copyright Act has long been on the horizon of South Africa's legal reform agenda and through the collective effort of stakeholders, a new Copyright Act is now within reach.
The first definite step towards progress was the draft Copyright Amendment Bill that was published for comment late in 2015. The Bill, being far from perfect, benefited from various consultations with stakeholders followed by extensive comments submitted by local and international experts.
Just shy of two years later, the Department of Trade and Industry has now tabled the Copyright Amendment Bill 2017, a much improved version of the 2015 Bill having incorporated the consultations and comments submitted to them. Moreover, the Bill takes into consideration the amendments adopted by the Intellectual Property Laws Amendment Act, 2013, which were not considered when the 2015 Bill was being drafted.
While the overall changes made in the 2015 Bill remain mostly the same in the 2017 version, the most salient improvements are highlighted below:
The 2015 Bill contained various provisions relating to the rights of performers which have been removed from the current Bill, as these were dealt with more appropriately by the Performers’ Protection Amendment Bill, 2016 which incorporated these provisions into the Performers’ Protection Act.
The 2015 Bill contained provisions regarding a new category of works called “craft works” which have also been removed, as adequate protection for such works is already provided for in terms of the current Act and proposed amendments to be implemented in terms of the Intellectual Property Laws Amendment Act.
The 2015 Bill proposed a number of new offences (including acts such as a failure to pay royalties and circumventing technological protection mechanisms). Most of these offences have been amended to simply be considered infringements of copyright instead of being criminalised.
The 2015 Bill also contained provisions regarding ownership of orphan works passing to the State with the right to claim royalties perpetually, which have been removed from the 2017 version.
The spelling, grammar and layout have also been improved so that the Bill reads easier and makes more sense generally.
Despite submissions to the contrary, the Bill retained the proposed provision in the 2015 Bill that restricts the term of an assignment of copyright to 25 years. In addition, the provision does not expressly state what happens to the copyright once this period expires, but it is reasonable to presume that the intention is for the copyright to revert back to the assignor.
Additionally, the Bill states that contractual agreements purporting to restrict rights granted in the (amended) Copyright Act will be unenforceable. It will therefore not be possible to contract out of this 25 year assignment provision.
This would have a significant impact on brand owners who have acquired copyright in their logos, product labels, product packaging or other branding materials through assignment. Our recommendation is for brand owners to consider trade mark registration as a means to maintain an enforceable right to such works in cases where protection by means of copyright may no longer apply.
The 2017 bill can be found here and it is possible to submit written comments on the Bill by 30 June 2017. Further, public hearings for comments on the bill will be scheduled during August 2017. We welcome any questions or comments regarding the proposed amendments via our Rouse Africa email