Copyright bill heads for apex court

• Legal experts say it intrudes on property rights and right to trade

President Cyril Ramaphosa has for the second time had qualms about signing the Copyright Amendment Bill and Performers’ Protection Amendment Bill into law and has sent them to the Constitutional Court.

Copyright legal experts and artists have opposed the copyright bill, which they say intrudes on property rights and the right to trade.

When he refused to sign the bills in June 2020 because of his constitutional concerns, Ramaphosa sent them back to parliament for it to consider their constitutionality. Over four years later the concerns persist.

The bills were submitted by the department of trade & industry to parliament in 2017, which means it has taken about seven years to draft legislation which the president still finds potentially deficient. Parliament’s trade & industry committee was dissatisfied with the department’s copyright bill and engaged in a lengthy process to formulate its own bill, which was referred back to parliament by the president.

“The constitution also provides that if the president still has concerns after parliament has reconsidered a bill, the president can refer it to the Constitutional Court for a decision on the constitutionality of the draft law,” the presidency said.

It is probable the Constitutional Court will take some time to decide on the constitutionality of the bills, and if it decides that they are not constitutional more time will be required for drafting new draft legislation, public participation and parliamentary deliberation, further delaying SA’s bid to modernise copyright and performers’ protection.

Expert in SA copyright law and author of a textbook on the subject, Stellenbosch University emeritus professor of intellectual property law Owen Dean, welcomed Ramaphosa’s decision as the right thing to do.

He described the Copyright Amendment Bill as “atrocious and should be scrapped and go back to the drawing board”. It was badly drafted with a lot of inconsistencies and wrong principles, he said.

What was particularly objectionable was the introduction of the concept of fair use, which undermined the rights of copyright holders. One of the many reasons the Copyright Amendment Bill was unconstitutional, Dean said, was that the introduction of fair use violated the provisions of the Berne Convention for the Protection of Literary and Artistic Works, which SA subscribed to and which governed copyright worldwide. The SA constitution required SA to observe the terms of conventions to which it belongs.

“The whole philosophy of copyright is that you want to create capacity on the part of creative people — authors, composers and artists — to be able to produce works and make a living out of their artistic creations. Copyright says the creative person can have the monopoly over the use of your work for a limited period — under the Copyright Act it is the lifetime of the person plus 50 years after his/her death — and thereafter it falls into the public domain and it is free for use by all. That is the way copyright has worked for hundreds of years.”

Dean said situations did arise where the rights of creative people had to be weighed against the rights of the community as a whole. So certain exceptions were made, for example the right to make quotations without getting permission. But these had to be exceptional situations. They needed to be explicitly stated and clearly circumscribed and should not negatively affect the rights of the copyright owner as required by the Berne Convention, he said.

What the amendment bill proposed is there should be virtual freedom for people to copy unless it was considered unfair.

But Dean pointed out that the courts would have to decide whether the use was fair or not in every particular instance. There would be free use unless a court decided very much later that it was unfair.

“This creates tremendous uncertainty and an untenable situation,” he said.

“I and many other people have been fighting this for years. This does not comply with the Berne Convention and that makes it unconstitutional.”

Dean said there were many areas in which the bill eroded the property rights of copyright holders.

EROSION

Another objection, he said, was the bill aimed to curtail the freedom of the copyright holder to decide on the period in which his rights would be transferred to another party, for example a publisher in the case of an author. In terms of the bill, copyright can be only be assigned for a maximum 25 years, which will affect the value of the product at the time of the contract.

This was an erosion of the freedom to trade.

Dean said no such provision existed anywhere else in the world. A possible rationale was to give the copyright holder a second chance of negotiating a more favourable contract if the work proved to be a success.

While the bill might be an attempt to balance the rights of the community to get more access to copyright works, Dean said it swung the scales too far in that direction.

BILL SHOULD GO BACK TO DRAWING BOARD. IT WAS BADLY DRAFTED WITH INCONSISTENCIES AND WRONG PRINCIPLES