Legislative shambles: Copyright Amendment Bill 2015

In relation to the compulsory licensing provisions, there does appear to be a worrying undertone. It seems that the government wants to provide educational material without having to negotiate with copyright owners in the normal course of business. While there is no doubt a case to be made for making educational material more accessible, it is hoped that the government is not seeking to undermine the principles of copyright law as a quick fix to its well-publicised failure to provide adequate schooling provisions. On the other hand, there appears to be no hesitation to waste money on the creation of institutions of questionable value, or size, such as the National Trust for Indigenous Knowledge, and the new Intellectual Property Tribunal envisaged under the Amendment Bill. No reason has been given for replacing the Copyright Tribunal – which is currently a single judge – with an Intellectual Property Tribunal consisting of at least 10 members! To date there has been no suggestion that the Copyright Tribunal is overworked. There appears to no lack of desire to create new statutory bodies, which will no doubt be staffed by suitably well-connected appointees. If cronyism and nepotism was not the order of the day, we would not be facing government failure on this scale.

Prof Sadulla Karjiker, Department of Mercantile Law, Faculty of Law, Stellenbosch University has some harsh criticism for the approach and drafting of some recent legislation. See Let’s pray for mediocrity: Another case of legislative diarrhoea for the full article first published on Polity yesterday.

Extracts

On 27 July 2015 the Department of Trade and Industry (“the DTI”) published the Copyright Amendment Bill 2015 (the “Amendment Bill”) in the Government Gazette, asking for public comment within 30 days from such date. Given the number of issues contained in the Amendment Bill that needs to be addressed, it will be almost impossible for one person to give comprehensive comments within the allotted time, unless that is their only task. It never ceases to amaze me how much time now has to be dedicated, by myself, and other academics and professionals, in trying to get legislation which is even vaguely coherent and workable. If that is not enough as a source of frustration, most of the comments which experts painstakingly submit are probably destined for the waste-paper basket, judging by past experience.

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Lest there be any misunderstanding, or doubts about my motives: I was raised on the Cape Flats, and received my schooling under the days of so-called gutter education during the turbulent 1980s. We should not have to endure gross government failure with good grace in a democratic society, which was achieved at great human cost. Government should fulfil its mandate. Those tasked to do something should do so competently. We do not require that those persons “#BeMoreMadiba” or some such popular refrain. Being mediocre would be enough for now.

1 Comment

GilesFiles on August 20, 2015 at 12:37 pm

Earlier today Webber Wentzel in alliance with Linklaters issued an E-alert concerning the Copyright Amendment Bill and some passages have been extracted for your information.

On 27 July 2015, the Department of Trade and Industry (DTI) published the Copyright Amendment Bill for public comment (Bill). The Bill proposes substantial changes to the Copyright Act of 1978 (Copyright Act), which in turn governs the protection, ownership and use of many categories of works, such as computer programs, broadcasts, art, music, films, books, documents and any other material reduced to digital or written form.

If the amendments proposed in the Bill are enacted, they will have significant consequences for both individuals and businesses alike, particularly those in the software, technology, education, advertising, music, film, media and publishing industries.

Although we appreciate the attempts by the DTI to modernise the Copyright Act, especially in the context of the digital environment, we have concerns about the drafting, formulation and presentation of this Bill – a view shared by prominent academic commentators. In any event, the primary purpose of this e-alert is to provide a high level summary of some key proposed amendments.
. . . . .
3. Copyright exceptions

The Bill introduces several new permissible uses of copyright that would not constitute copyright infringement, even where the copyright owner’s consent is not obtained. In this regard, the Bill also imports the United States (US) inspired concept of “fair use” (including the four factors used in the US).

One example is “non-commercial” translations of literary and musical works – for example, private, educational, ‘public information’ and research purposes or for use in judicial proceedings and professional advice. Other examples of fair use include: cartoons and parodies; ‘fair and reasonable’ quotations; making copies of purchased CDs and eBooks; use by publicly funded archives, libraries and museums; reproductions needed to enable use / access by persons with disabilities, and other non-commercial uses.

The Bill permits temporary copies that are “transient and incidental” and which enable network transmissions between third parties or lawful uses which have no independent economic significance. This temporary copying exception seeks to make lawful some everyday uses of copyrighted works that are technically unlawful under the Copyright Act.

There is also a surprising provision which effectively creates an exception such that trade mark or brand holders cannot bring copyright infringement proceedings for parallel imports of so-called ‘grey goods’.

4. Unenforceable contractual provisions

The Bill provides that contractual provisions that prevent / restrict any act that would otherwise be lawful under the Copyright Act will be unenforceable (eg by virtue of a copyright exception). For instance, this applies to restraints and non-compete clauses in contracts that seek to restrain parties from dealing with copyrighted works (such as software, art, music or information) in a manner that would not amount to copyright infringement. This could have serious consequences for commercial dealings.

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Legislative shambles: Copyright Amendment Bill 2015

Extracts

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