Copyright Amendment Bill harshly criticised

Professor Owen Dean says the Copyright Amendment Bill "displays a lamentable lack of knowledge and understanding of the basic principles of copyright law".
Professor Owen Dean says the Copyright Amendment Bill "displays a lamentable lack of knowledge and understanding of the basic principles of copyright law".

Time is running out for the public to comment on the Department of Trade and Industry's (DTI's) proposed Copyright Amendment Bill, which industry experts have called "absurd", "badly drafted" and "largely drivel".

Professor Owen Dean, chair of intellectual property law at Stellenbosch University, is one of many critics who have already called for a revision of the Bill, which he says is "very badly drafted and is often incomprehensible".

"It displays a lamentable lack of knowledge and understanding of the basic principles of copyright law. While it has some good aspects, it is fundamentally so flawed that the DTI should go back to the drawing board and start afresh by using a drafting committee that has expertise in copyright law," says Dean.

The Bill aims to amend the Copyright Act 98 of 1978, with key areas including the provision for management of digital rights, the protection of fair use of copyright work, and the establishment of an Intellectual Property Tribunal. The Copyright Amendment Bill was published for public comments on 27 July and the public have until 16 September to submit responses.

The DTI says the current policy revision is based on the need to bring the copyright legislation in line with the digital era and developments at a multilateral level.

Dean admits some topics addressed in the Bill are matters which are "crying out for redress" but is critical of how the new legislation deals with them.

"There is considerable value in principle to the Bill. The pity is, however, that the Bill is so fraught with blemishes that the potential good that it may do is lost."

Stephen Hollis, senior associate and intellectual property attorney at Adams & Adams, says the current Copyright Act was enacted on 1 January 1979 and has remained largely untouched since then.

"The challenge here is that our existing Copyright Act, although a rather old piece of legislation, is still good law which deals with very complex and diverse matters emanating from many different industries."

However, he says when an amendment of this important Act is proposed, "it is not as simple as wielding the pen of change without consequence".

Orphan works

"Apart from the fact that [the draft Bill] is largely drivel, it goes overboard in creating exceptions to copyright infringement which virtually leave no protection available to copyright works," says Dean.

He says there are many problems with the draft legislation, with one of the most contestable issues being that of 'orphan works'. These are works which remain in copyright but which the identity of the copyright owner cannot be readily determined or located.

The draft Bill suggests the State be given ownership of these orphan works and makes the term of protection for such works perpetual ? as opposed to the normal term which is calculated around a period of 50 years.

Electronic Frontier Foundation senior global policy analyst, Jeremy Malcolm, says the proposal surrounding orphan works is "absurd".

"Granting perpetual copyright in orphan works to the state is unprecedented, and extremely ill-advised," says Malcolm.

He also opposes the suggestion that this would extend to the works of copyright owners who are dead - "notwithstanding that their estates would otherwise continue to enjoy the copyright for 50 years after their death".

"The approach of vesting copyright in orphan works in the state may be valid, but after the original copyright term expires, the works should enter the public domain, as they usually would," says Malcolm.

"We applaud the Bill's intention to address the orphan works problem. However, we are very worried by the way that it is proposed to do this."

Issues abound

Orphan works are only the tip of the iceberg in terms of issues flagged by critics. Dean says the Bill seeks to protect the work of performing artists, which he says has nothing to do with copyright.

"There is already a dedicated Act for the protection of such performances, namely the Performers Protection Act; in so doing, it to some extent duplicates the existing protection and in other respects contradicts it."

Hollis agrees there are provisions seeking to regulate certain aspects of the broadcasting industry which he says are unrelated to copyright. The Bill also tries to introduce certain criminal offences for transgressions of copyright which he says may be considered to be rather "mild transgressions".

"An example is the non-payment of a re-sale royalty by the purchaser of an artistic work to the person who originally created the work (who may not be known to the purchaser at the time of purchase)."

Dean also says the Bill purports to create "in a half-baked manner an Intellectual Property Tribunal which usurps the function of the court in adjudicating intellectual property law disputes".

Dean is against the fact that the tribunal will be mainly staffed by non-lawyers and plans to regulate the local content of broadcasts, "which has nothing to do with copyright law and is something which should be catered for in legislation which regulates the broadcasting industry".

One step forward, two steps back

Critics do admit the current Copyright Act is long overdue for a revamp but are still not happy about the state of the current amendments.

"Our law needs to be overhauled and updated. To this extent, the DTI is on the right track. However, the current draft Bill is hopelessly inadequate and unsuitable for this purpose.

"An expert drafting committee must be appointed with the mandate to formulate amendments to the Act, in consultation with the DTI. The current Bill should be withdrawn and consigned to the refuse bin," says Dean.

Hollis explains that copyright is a multi-layered and multi-faceted right, and believes the current draft Amendment Bill requires a lot of work in order to achieve clarity and "comprehensively and effectively improve and develop our law by building on and expanding on what is already part of our law".

He says because copyright legislation affects so many creatively vibrant and diverse industries, "guidance from copyright and industry experts would prove invaluable to the DTI's effort".

Playing catch-up

South Africa is still lagging behind its global peers when it comes to copyright law, especially as technology advances.

"Taking the mid-1990s as a benchmark, our copyright law compared very favourably with equivalent laws anywhere else in the world. However, while the rest of the developed world has moved on and updated their laws so as to keep pace with modern technological developments, and in particular the Internet and the challenges posed by it to copyright owners and users, we have remained static and our law has become badly outdated in many respects," says Dean.

"Lawmakers the world over have been struggling to keep up with the speed at which our world was transformed - especially from a technological perspective. Along with the Internet, global connectivity, the digital revolution, etc, came real challenges as to how to deal with the newly available ways of creating and reproducing copyright-protected works," according to Hollis.

They agree the DTI's move to update South Africa's law is a step forward, especially in terms of updating laws relating to technological protection measures and the safeguarding of copyright management information, digital rights management, and improved control and regulation of royalty collection societies, among others.

"The problem is that in the main, these issues have been addressed in the Bill in such an inept manner that any good that may in principle be done has been largely nullified," concludes Dean.

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