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.
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.