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Copyright Amendment Bill boggles legal minds

Lawyer argues that it ‘would be better to scrap it and start afresh’.

CAPE TOWN – Late last month the Copyright Amendment Bill, 2015, was published for public comment in the government gazette. An update to the act has been expected for some time, and some would say is well overdue, but the published bill has caused more consternation than relief.

There appears to be a number of inconsistencies and contradictions between the bill and the existing Copyright Act. And in attempting to modernise the act, the Department of Trade & Industry (Dti) has also come up with proposals that partner at Spoor & Fisher, Herman Blignaut, says are highly problematic.

Perhaps the most notable is that according to the bill, the ownership of all copyright held by individuals will automatically transfer to the state on their death. Blignaut says that as far as he is aware, there is no precedent for this anywhere in the world. There is also no indication of how this would be administered.

“The bill essentially says that when the owner of copyright passes away, is unknown or if he cannot be located, then ownership of copyright falls to the state,” he explains. “It doesn’t say how or why this happens, or what the underlying rationale is. But, by my reading, upon the passing of an individual the state automatically assumes ownership and it is then theirs in perpetuity.”

This becomes even more problematic when read in conjunction with another part of the bill that prohibits the state from ever assigning any copyright to anyone else. So the state would be unable to sell the copyright it then holds for it to be exploited.

“All of these provisions seem arbitrary,” Blignaut says. “To my knowledge this is unheard of. The state is effectively depriving a person or their heirs of the fruits of their labour and there could be a strong argument that it is unconstitutional.”

Another issue Blignaut highlights in the bill is that it introduces a ‘re-sale right’. This entitles the author of an artistic work such as a painting or sculpture to a 5% royalty every time that work is re-sold.

The concept of re-sale rights already exist in areas like France, the United Kingdom and the US State of California, and one imagines they would be welcomed by artists, but the bill provides no clarification on how they would be administered.

“It’s just difficult to imagine how it would function,” Blignaut says. “It has to be able to work in practice.”

He adds that he doesn’t feel that it’s appropriate for the royalty rate of 5% to be set in the bill.

“The dti has indicated that the 5% royalty may not be cast in stone,” he says. “But ideally I don’t think it should necessarily be set by the Copyright Act. There should rather be an enabling provision in the act that allows the rate to be set by the Minister through subsequent regulation so that, when necessary, it can be updated without having to go through the process of amending the Act.”

Read in conjunction with the provision on the ownership of copyright vesting with the state in the case of an owner’s death, a very cynical observer might also wonder if the re-sale rate is an attempt by the state to gain additional revenue. However Blignaut says that if that is the case, it is contradictory.

“One of the underlying reasons might be for the state to generate income for itself, but at the same time the state is prohibiting itself form assigning any of its own copyright,” he explains. “So it is preventing itself from exploiting the copyright it owns to its fullest extent by being able to assign to it to someone else, subject to suitable compensation.”

The third major issue raised by the bill is that it makes provision for an Intellectual Property Tribunal. Again, the concept of having such a body that acts as a specialist court of first instance in all intellectual property disputes may be a good one, but the bill makes its powers far too broad.

“It currently says the tribunal may adjudicate any application made to it under any legislation,” Blignaut says. “This is so broad that it is inviting matters that could be related to any number of things. So this is clearly an issue that will need to be remedied.”

He adds that if the tribunal is to work effectively, it will have to be properly staffed and resourced.

“If there are the skills and staff and resources to function, then I think it may well be something to be welcomed,” Blignaut says. “But if it is understaffed, with people without the necessary skills or experience making calls on complicated intellectual property matters then it would defeat the purpose.”

The bill also appears to go beyond its scope in two significant ways. The first is by including extensive provisions on performers protection rights. There is however already a separate Performers Protection Act, and Blignaut says that matters pertaining to that area should be dealt with in an amendment to that act, not in the copyright bill.

The second is that the bill includes requirements on sub-minimum requirements for the broadcast of local content by local radio and television stations. These are set at 80% for public broadcasters and 60% for private, and non-compliance would be a criminal offence.

“Apart from this being draconian, from a practical perspective the SABC would have to broadcast everything it could get its hands on and still have to re-broadcast old material to get to that level,” Blignaut says. “But again, there is no place for trying to regulate this in the copyright bill, as there are no underlying copyright principles. It should be removed from the Bill, and if the dti is serious about imposing these requirements on broadcasters, it should do it through Icasa, make it a requirement of broadcast licenses or draft separate legislation for it.”

Despite these deep problems, Blignaut does highlight two positive developments contained in the bill. The first is that it introduces special provisions for people with disabilities in that the non-commercial use of protected works to be translated or amended for their purposes will not constitutae a copyright infringement. So translating a work into Braille for a blind library, for instance, would be recognised.

The second is that the bill makes provision for the regulation of copyright collecting societies. These are bodies that collect royalties on behalf of artists or owners of copyright.

“The principle is that there will only be one society per right – whether that is mechanical rights, performance rights or broadcast rights – so you will not have the possible infighting where societies are dealing with more than one kind of right and they are almost in competition with each other,” Blignaut says. “There are allegations of duplicate claims by collecting societies at the moment, and I suppose that this is aimed at trying to remedy that kind of situation and regulate their activities.”

Overall, however, these are far outweighed by the problematic areas of the Bill. So much so, that Blignaut feels it may not be salvageable in its current form.

“There is so much in the bill that needs to be fixed that I almost think it would be better to scrap it and start afresh,” Blignaut says. “It may just be too difficult to reconstruct it.”

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