Copyright bill redraft: chance to align to global standards

The redrafting of SA’s Copyright Amendment Bill, which is currently being considered by the National Assembly, is an opportunity to bring the legislation in line with global copyright standards and to consult with creative industry experts, says Janet MacKenzie, partner and head of the Technology, Media and Telecommunications Practice at Baker McKenzie Johannesburg.

Some of the issues with the earlier bill, she explains, include that it should have been focused on dealing with copyright and industry practices and reflected foreign legal constructs such as “fair use” and “user rights”, both of which were indicative of the various agendas that have crept into the legislative process.

“The introduction of fair use provisions in the bill, which allows for the reproduction of a copyright protected work under certain circumstances, was contentious,” says MacKenzie.

“Across the world, various countries allow for certain exceptions and limitations to copyright use, subject to compliance with international treaties. In SA, the addition of a fair use provision was seen as an opportunity to build in more exceptions, which could assist

the government with access to information and education.”

The bill therefore became a political playfield for lobby groups advocating for more liberal and developmental copyright principles, she adds.

“In the process, there was a missed opportunity to align SA’s copyright regime with international best practices and give effect to commercial and industry concerns.”

Among President Cyril Ramaphosa’s concerns around the bill were that substantial amendments were not subjected to public comment before the final version was published and that copyright exceptions could constitute arbitrary deprivation of property, violate the right to freedom of trade, occupation and profession, and may be in conflict with the WIPO Internet Treaties to which SA subscribes.

In the months preceding President Ramaphosa’s decision to send the bill back to the National Assembly, both the US and the EU, under pressure from the cultural industry in their jurisdictions, threatened to impose tariffs and withdraw foreign investment if the South African legislation was not postponed and reassessed. Their arguments were that the bill’s broad exceptions to fair use were not in compliance with international treaties and that a more balanced and certain approach was needed. In addition, general concerns were expressed regarding the enforcement of copyright and whether enough was being done to prevent counterfeit works and piracy in SA.

OPPORTUNITY

“Now that the law is being reassessed, there is an opportunity to align the bill with the WIPO Internet Treaties and focus on fundamental copyright principles,” explains MacKenzie.

“The second round of the legislative process provides an opportunity for the technical expertise of the technology, music, publishing and film and television production industries to be drawn upon so more balanced legislation can be prepared.”

This process should include conducting a broad economic impact assessment on how these provisions will impact the industry.

“As SA begins its post pandemic recovery, these measures will help ensure the new bill is able to stimulate economic growth and not inhibit investment in the country,” she says.

AS SA BEGINS ITS POST PANDEMIC RECOVERY, THESE MEASURES WILL HELP ENSURE THE NEW BILL IS ABLE TO STIMULATE ECONOMIC GROWTH AND NOT INHIBIT INVESTMENT