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Since its introduction to the National Assembly on 12 May 2017, the Copyright Amendment Bill, 2017 has ignited extensive discussions across South Africa (SA), impacting the essence of copyright law, creators’ rights, and the foundation of the creative industry. The legislation has faced opposition from stakeholders in the music, book publishing, film, and television industries due to its wide-ranging copyright exceptions and limitations, which could potentially weaken the position of rights holders in South Africa to an unprecedented extent.
As the Bill underwent various stages of development, including multiple versions and technical amendments, it awaited approval from the President’s Office. This process brought to light concerns about its compatibility with South Africa’s Bill of Rights, Constitution, and international treaties. The article aims to dissect the implications of the Copyright Amendment Bill for SA’s legislation, its impact on ‘fair use’, and the collective response from the public, corporate entities, and the creative sector. This analysis underpins a discourse on the future of creative livelihoods and copyright enforcement within the realms of SA’s National Assembly, the Department of Arts and Culture, and the National Council of Provinces.
The introduction of the Copyright Amendment Bill in SA has ignited a substantial debate due to its multifaceted legal and economic consequences.
On the legal front, the Bill’s inception has led to a split in opinion, especially regarding its compliance with international treaties. Critics suggest that it could potentially put SA in breach of agreements such as the World Intellectual Property Organisation (WIPO) Copyright Treaty and the Marrakesh Treaty, casting doubts on the nation’s adherence to global norms. The President’s reservations underscore issues related to –
These points indicate a complex legal landscape that may emerge from the Bill’s implementation.
On the economic side, the administrative burden associated with recording and reporting under the Bill is expected to incur billions of Rand (Parliamentary Monitoring Group (PMG) ‘Copyright Amendment Bill & Performers Protection Amendment Bill: public hearings’ (https://pmg.org.za, accessed 7-3-2024)). This presents a significant economic challenge, especially in the absence of a conducted economic impact assessment study to fully understand its implications. The Bill harbours a one-size-fits-all approach and a 25-year reversion requirement, both of which have been criticised for being unworkable and detrimental to performers, producers, and the broader creative industry. This could potentially lead to an erosion of South Africa’s creative sector and discourage both foreign and domestic investment.
These points highlight the intricate interplay between legal frameworks, economic considerations, and the sustainability of the creative industry, necessitating a balanced approach to copyright legislation in South Africa.
The inclusion of the ‘fair use’ clause in the Copyright Amendment Bill has been a point of contention. This clause aims to expand the limitations and exceptions on the reproduction of copyrighted works, with an emphasis on preserving information. It is designed to facilitate increased access to knowledge and foster creativity, innovation, and invention. However, the open-ended list of exceptions raises significant concerns about its application and the determination of what constitutes fair use.
Critics argue that the ‘fair use’ principle, despite its apparent benefits, could potentially harm South Africa’s creative community. It is seen as being out of step with international best practices and could negatively impact copyright owners and creators. The ambiguity of the principle may leave creators with no choice but to engage in costly litigation to receive compensation for the use of their copyright. Furthermore, the term ‘fair use’ has been criticised as a colonialist phrase, suggesting a continuation of the West’s erosion of South African cultural and intellectual property (United Democratic Movement (UDM) ‘Response To The Copyright Amendment Bill And Performers Rights Amendment Bill’ (https://udm.org.za, 9-3-2024)).
Despite these concerns, international research suggests a positive correlation between the adoption of ‘fair use’ and innovation and investment in creative and technology industries. Over ten countries have incorporated fair use into their copyright laws without evidence of significant damage to the creative industries, job losses, or withdrawal of investments (Denise Nicholson ‘Unpacking the positive sides of fair use for society and creatives at large’ (www.dailymaverick.co.za, accessed 4-6-2024)). This global perspective underscores the potential for ‘fair use’ to serve as a balancing tool between the interests of creators and the public. Entities like the South African National Editors’ Forum (SANEF) support ‘fair use’ as an enabler in this balance (SANEF ‘SANEF celebrates the inclusion of the “fair use” principle in the Copyright Amendment Bill’ (https://sanef.org.za, accessed 4-6-2024)).
The response to South Africa’s Copyright Amendment Bill and Performers Protection Amendment Bill, 2016 has been diverse and significant, reflecting the varied interests and concerns across the country’s creative and commercial sectors. Entities such as eMedia, BlindSA, South African Institute of Intellectual Property Law (SAIIPL), Independent Black Filmmakers Collective, and Animation SA have voiced their positions during public hearings conducted by the National Council of Provinces (NCOP) (PMG ‘Copyright Amendment Bill & Performers Protection Amendment Bill: public hearings’ (https://pmg.org.za, accessed 13-3-2024)). Legal and financial apprehensions were notably highlighted, with particular emphasis on the Minister’s authority over royalties and constraints on contractual freedom. BlindSA underscored the amendments’ partial non-compliance with the Constitutional Court’s judgment (Blind SA v Minister of Trade, Industry and Competition and Others (Owen Dean and Others as Amici Curiae) 2023 (2) BCLR 117 (CC)) and the Marrakesh Treaty, while advertising executives and eMedia expressed sector-specific concerns, including the homogenisation of advertising and ephemeral rights.
A significant portion of the creative community, including Artists Unite and the South African Democratic Teachers Union, championed the Bills, viewing them as crucial for eradicating outdated apartheid legislation and fostering a fairer copyright regime. Conversely, concerns were raised about the potential negative impacts on the industry, with warnings about reduced earnings for actors and the need for a more nuanced approach to fair use and royalties.
The delay in the Bills’ passage, attributed to pressure from international entities like the European Union and the United States, underscores the tension between global standards and local needs for copyright protection (UDM (op cit)). The discourse around protecting the creative and cultural industries of developing countries, alongside considerations for licensing agreements and copyright protection durations, reflects a broader debate on balancing international influence with domestic priorities.
The Copyright Amendment Bill in SA introduces substantial changes aimed at striking a balance between copyright enforcement and freedom of access. This is particularly relevant for individuals with disabilities and the regulation of collecting societies and copyright management.
Under the accessibility provisions, the Bill allows certain individuals to create accessible format copies for people with disabilities under specific conditions. It defines ‘accessible format copies’ as alternative versions of a work that provide access to individuals with disabilities, promoting inclusivity in accessing copyrighted materials. In terms of collecting societies and copyright management, the amendments provide clarity on the definition and structure of ‘collecting societies’, ensuring their operations are transparent and effective. The Bill introduces ‘copyright management information’ to identify works and their usage terms, simplifying copyright enforcement and compliance.
The Bill also expands copyright protection and rights. New sections (s 7B to 7F) incorporate provisions for resale royalty rights, accreditation of collecting societies, dispute resolution mechanisms, and improved access for disabled individuals. The Bill enhances copyright protection through new exclusive rights, including public communication and distribution of works. It also addresses the use of orphan works and digital rights protection.
These amendments aim to update SA’s copyright law, ensuring it supports creators while accommodating public and individual needs.
A comparative analysis between South Africa’s proposed Copyright Amendment Bill and international standards provides significant insights into the global landscape of copyright laws. India’s approach, which includes a provision for statutory licences for cover versions, like the United States fair use doctrine, highlights a trend towards flexibility in copyright usage (Klaus D Beiter; Sean Flynn; Malebakeng Forere; Jonathan Klaaren; Caroline B Ncube; Enyinna S Nwauche; Andrew Rens; Sanya Samtani; Tobias Schonwetter ‘Copyright Reform in South Africa: Two Joint Academic Opinions on the Copyright Amendment Bill [B13B-2017]’ (2022) 25 PER). This has sparked a global conversation on balancing creators’ rights with public access, a debate that SA is also part of. The extension of copyright terms in India from 60 to 70 years aligns with international norms, underlining the importance of protecting authors’ rights for an extended period. This stands in contrast to South Africa’s current protection of 50 years after the owner’s death, suggesting a need for South Africa to align with international practices to safeguard creators’ incomes and dignity.
Both the Indian Bill and South Africa’s proposed amendments include provisions for Technological Protection Measures, Rights Management Information, and exceptions benefiting libraries, archives, and persons with disabilities. This demonstrates a move towards modernising copyright laws in line with the Marrakesh Treaty and digital advancements. This comparison highlights the dynamic nature of copyright legislation globally. It underscores the need for South Africa to consider international best practices and agreements such as the African Union Agenda 2063, the African Continental Free Trade Area, and BRICS+ in its legislative reforms to protect artists’ incomes and uphold their dignity.
The responses from various stakeholders stress the need for a balanced approach that respects international treaties while fostering an environment for creation and innovation if South Africa is to have an inclusive and prosperous creative economy.
Thaba Ncapancapa is an LLB student at Unisa in Cape Town.
This article was first published in De Rebus in 2024 (July) DR 24.
