COPYRIGHT
AMENDMENT BILL (2015)
SUMMARY
AFAI Cultural Policy Reading Group (Aug 6th)
Prepared by Gino Engle
History and Structure
The original Copyrights Act 98 (1978) came into effect in
1979, and since then there have been nine Amendment
Acts, the last being the Copyright Amendment Act 9 (2002).
Structure of legislation document:
• Definitions (Section 1)
• Nature of copyright in various works, including royalties
(Sections 6-11)
• General exceptions (Sections 12-19)
• Ownership and licencing (Section 21-22)
• Infringements (Sections 23-28)
• Tribunal and procedures (Sections 29-39)
• Miscellaneous items (Sections 40-47)
Background Statement
‘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. The universal purpose
of copyright is to reward and incentivise creators of
knowledge and art. The purpose of the Bill is to increase
access to knowledge, access to education, learning
materials for nationals and persons with disabilities. The
creative industry particularly musicians, are vulnerable to
abuses by users of their Intellectual Property and the Bill
seeks to redress this matter. The closing date for
comments is 26 August 2015.’
-http://www.thedti.gov.za/
Official Motivations
To amend the Copyright Act 98 (hereafter CA 98 or principal Act) of
1978, so as:
• to amend certain definitions;
• to allow for the reproduction of copyright work;
• to provide for the protection of copyright in craft work;
• to provide for the accreditation and registration of Collecting
Societies*;
• to provide for the procedure for settlement of royalties disputes;
• to allow fair use of copyright work;
• to provide for access to copyright works for a person with disabilities;
• to provide for the protection of ownership of orphan works* by the
state;
• to provide for the establishment of Intellectual Property Tribunal*;
• to provide for the appointment of members of the Intellectual Property
Tribunal;
Official Motivations (continued)
• to provide for the powers and functions of the Intellectual Property
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Tribunal;
to provide for protection of performers’ moral and economic rights;
to provide for the protection of rights of producers of phonograms;
to provide for prohibited conducts in respect technological
protection measure;
to provide for prohibited conduct in respect of copyright
management information;
to provide for management of digital rights;
to provide for the promotion of broadcasting of local content;
to provide for certain new offences.
Preliminary Definitions
• Collecting Societies: ‘Collective Rights Management refers to the
management of copyright on a collective basis. Organisations, usually
known as collecting societies, are granted by rightsholders (whether
by way of agency mandate or assignment of rights) the right to
license the use of copyright-protected works on a collective basis (i.e.
the user has access to all the works controlled by the collecting
society by virtue of the one licence). The benefit of collective rights
management is that it significantly reduces the administrative burden
for both rightsholders and users that is associated with direct
licensing.’
(www.capasso.co.za/index.php/more-on-collective-rightsmanagement)
• Orphan works: means ‘works in which copyright still subsists but the
right holder, both the creator of the work or the successor in title
cannot be located;’ (definition in Amendment Bill).
• Intellectual Property Tribunal: New juridical body to substitute the
Copyright Tribunal (Amendment details below).
List of Key Amendments
a) Protection over digital content
b) Coverage of ‘artistic works’ and resale royalties
c) Coverage of ‘craft works’
d) Exception of disabled peoples and educational services
e) Exception of ‘fair use’ of copyrighted works - limits
Establishment of the Intellectual Property Tribunal
g) Collecting Societies
h) Broadcast – ‘local content’
i) Infringements – with respect to broadcast
j) Orphan Works - ownership
f)
Key Amendments
a) Protection over digital content
Amendment, throughout the Bill, of public communication
of “works” terminology. E.g. Section 9 (CA 98) from:
- “(e) communicating the sound recording to the public.” to
- “(e) communicating the sound recording to the public[.] of
their works, by wire or wireless means, including the
making available to the public of their works in such a way
that members of the public may access these works from
a place and at a time individually chosen by them.”.
Issue not over what work is protected but who owns the
rights to the work.
Key Amendments
b) Section 7; ‘artistic works’
Section 7 of the principal Act concerns ‘artistic works’ which
is defined in Section 1 as:
‘“artistic work” means, irrespective of the artistic quality
thereof—
(a) paintings, sculptures, drawings, engravings and
photographs;
(b) works of architecture, being either buildings or models
of buildings; or
(c) works of craftmanship not falling within either paragraph
(a) or (b)’
Which is distinct from copyright in ‘broadcast’ (Section 10),
‘cinematographic film’ (Section 8), and ‘sound recordings’
(Section 9).
Key Amendments
b) Section 7; ‘artistic works’
The Amendment Bill proposes to introduce ‘Resale royalty
rights’, which would cover secondary markets (e.g. auction
houses). Key amendments include the insertion of sections 7AD, e.g.:
• “7A Resale royalty right
(1) A creator of artistic work shall, with respect to original works
of art enjoy the inalienable resale royalty right on the commercial
resale of his or her created work of art subsequent to the first
transfer by the author or creator of such work of art.
(2) Resale royalty shall be payable at the rate of 5% of the
commercial resale price or as prescribed by the Minister.”
The conditions under which resale royalties might be ‘prescribed
by the Minister’ are unstipulated.
Key Amendments
c) Copyright in craft work
Insertion of specific subsection for craft work, as follows:
“11C Nature of copyright in craft work (1) Copyright in craft work vests the exclusive
right to do or to authorize the doing of any of the following acts in relation to the whole
craft work or a substantial part thereof:
(a) create the original craft work automatically protected by copyright from the time they
are created, as –
(i) work of the person who created the craft; or
(ii) work assigned to the creator by the manufacturer, publisher or
employer, which copyright work is owned by the creator and the persons who
assigned the work, respectively.
(b) design or draw a pattern for a craft item including, templates, drawings of shapes,
diagrams, paintings and sculptures for crafts work;
(c) reproduce the work; or
(d) make arrangement or other transformation of the work.”.
Where ‘craft work’ means works of pottery, glasswork, sewing, knitting, crochet, jewellery,
tapestry, woodwork, lace work, embroidery, paper tolling, folk art and hand-made toys.
Key Amendments
d) Disabled persons and education
services
19D General exceptions regarding protection of copyright work for a person with
disability
(1) It shall be permitted without the authorisation of the author or other owner of copyright to
make an accessible format of a work for the benefit of a person with a disability, to supply that
accessible format or copies of that accessible format to persons with a disability by any means
including, by non-commercial lending or by electronic communication by wire or wireless
means and undertake any intermediate steps to achieve these objectives, provided that the
following conditions are met:
(a) the person or organisation wishing to undertake any activity under this provision has lawful
access to that work or a copy of that work;
(b) the work is converted to an accessible format which may include, any means needed to
navigate information in the accessible format, but does not introduce changes other than those
needed to make the work accessible to a person with a disability; and
(c) the activity is undertaken on a non-profit basis.
Allows for the reproduction of a work for personal use by disabled persons and protects
organisations that offer services for disabled persons.
Similar amendments over educational and inter-libraries reproductions, which may require
further specification (i.e. private and/or public providers, at what level, in what capacity) (see
Section 12.15 and 13).
e) ‘Fair use’ exception of copyright works
“12A General exceptions from protection of copyright for fair use:
(2) Notwithstanding any provision of this Act, fair use of work for purposes
such as criticism, comment, news reporting, judicial proceedings,
professional advice, teaching which may include, making multiple copies
for classroom use, scholarship or research is not an infringement of
copyright.
...
(4) Fair use of copyright work shall allow for some limited and reasonable
use of copyrighted work for purposes of cartoon, parody or pastiche work
in songs, films, photographs, video clips, literature, electronic research
reports or visual art for non-commercial use, without having to request a
permission specified in the Schedule hereto. The use includes (a) quoting the works of the copyright owner in a manner that is reasonable
and fair;
(b) making copies of eBooks or compact discs purchased by the user; or
(c) transferring of purchased compact discs onto the user’s MP3 format
player.”
Issues around ambiguity of “limited and reasonable use” (NB: offensive
artistic depictions of Zuma).
f) Intellectual Property Tribunal
Establishment of an independent juristic body to replace the Copyright
Tribunal (Section 29) and to act as the key national “regulatory and
enforcement agency” under the Constitution and the law. Details include
the appointment procedures of the Ministerial Committee (29B-F).
The functions of this Tribunal are (29A):
(1) The Tribunal must carry out the functions and exercise the powers and
functions assigned to it in terms this Act or any legislation.
(2) The Tribunal may –
• (a) adjudicate any application or referral made to it in terms of this Act,
Companies Act, 2008 (Act 71 of 2008) or any legislation and make any
appropriate order in respect applications or referrals;
• (b) hear appeals or review any decision of the Commission or any
accredited dispute resolution institution;
• (c) adjudicate any application or referral made to it by any person,
institution or regulatory authority where the dispute which is the subject of
the application or referral relates to intellectual property rights;
• (d) settle disputes relating to payment of royalties or terms of agreements
entered into as required by this Act or agreement entered into to regulate
a relationship or matter in relation to intellectual property rights”.
Key Amendments
g) Collecting Societies
Background: The original Copyright Act 98 (CA 98) (1978) omits legalities surrounding the registration
and administration of Collecting Societies.
Case study which highlights the practice of Collecting Societies
“Copyright Tribunal Rules On Sound Recording Royalties” (http://www.mondaq.com; R. Sikwane,
6 Dec 2013):
This case, which was referred to the Copyright Tribunal, regarded a royalty dispute between the
rightsholders of sounds recordings and retailers who play those recordings in public.
This case pitted major retailers (incl. Foschini, Mr Price, Pick ‘n Pay, etc.) against a Collection Society
known as the South African Music Performance Rights Association (SAMPRA), the representative and
collector of royalties for ‘almost the entire recording industry’ (incl. Sony, EMI, Universal and Gallo).
SAMPRA had ‘unilaterally set a tariff... basically [adopting] a take-it-or-leave-it approach when
demanding payment’. Both sides were unable to reach an agreement through negotiations, hence the
referral.
Upon evidence from expert witnesses (incl. copyright lawyers, economists, and music therapists),
Judge Phatudi suggested that the Tribunal find a tariff that ‘optimises public welfare’, in the end ruling
that SAMPRA had been wrong to unilaterally impose a tariff. The judge’s referral to ‘licencing schemes’
(Chapter 3, Copyright Act 98) upheld the imposition of a new tariff by the Copyright Tribunal, against
the wishes of economist Prof Don Ross (UCT) whose evidence favoured free-market principles to
determine the level of tariff.
Key Amendments
g) Collecting Societies
Registration of Collecting Societies: (Sections 9B, 9C, 9D,
9E, and 9F), including:
• ‘9B. Registration: (1) There shall be one Collecting Society per
copyright and per set of rights with regard to all music rights such
as performance, needletime and mechanical, to be registered and
regulated by the Commission.
• 9C. Administration of rights by Collecting Society: (1) Subject
to such terms and conditions as may be prescribed - (a) a
Collecting Society may accept from an owner of rights exclusive
authorisation to administer any right in any work by issue of
licences or collection of licence fees or both; and (b) an owner of
rights shall have the right to withdraw such authorisation without
prejudice to the rights of the Collecting Society concerned.’
Key Amendments
g) Collecting Societies
Amendment regarding Collecting Societies in relation to royalty disputes (9A):
“The Tribunal must adjudicate such matter as soon as reasonably practicable and
where possible, before the performance which is the subject of such application,
make any order it deems fit including, but not limited to an order that (a) a provisional payment of royalty is made into a trust account of an attorney
nominated by the copyright owner or Collecting Society pending the finalization of
the terms and royalty payable: Provided that such amount shall be paid over to the
copyright owner or Collecting society as it represents the difference, if any, between
the amount determined as the appropriate royalty and the amount already paid and
any balance, if any, must be repaid.”.
“(b) The amount of any royalty contemplated in paragraph (a) shall be determined
by an agreement between the user of the sound recording, the performer and the
owner of the copyright, or between their representative Collecting Societies:
Provided that in the absence of such agreement, the amount of royalty shall be
determined by the Tribunal;”.
I.e. in the case of Retailers vs. SAMPRA, Tribunal determines tariff. Issue that there
are no stipulations over how the Tribunal is to determine the royalty.
Key Amendments
h) Broadcast
Key insertion in the beginning of Section 10 (‘broadcast’),
where ‘broadcast’ is defined as:
‘“broadcast”, when used as a noun, means a
telecommunication service of transmissions consisting of
sounds, images, signs or signals which—
(a) takes place by means of electromagnetic waves
of frequencies of lower than 3 000 GHz transmitted
in space without an artificial conductor; and
(b) is intended for reception by the public or
sections of the public, and includes the emitting of
programme-carrying signals to satellite, and, when
used as a verb, shall be construed accordingly’
Key Amendments
h) Broadcast
Insertion amendment in full:
“10A(1) The broadcasting industry is under obligation to develop the culture and support the growth of local content in
specified areas for the Republic, by amongst others (a) guiding the broadcast to develop and protect the national identity, culture, character and strengthen the social and
economic fabric of the country;
(b) promoting local broadcasting, local programming and production of local television content, as defined in the
Independent Broadcasting Authority Act, 1995 (Act 36 of 1995), as amended, by
(i) broadcasting 80% of local television content in public channels, consistently with applicable
local content quotas as may be developed by the broadcasting industry and relevant laws; and
(ii) broadcasting 60% of local television content in private channels, consistently with applicable
local content quotas as may be developed by the broadcasting industry and relevant laws;
(c) promoting local broadcasting, local programming and production in radio and ensure that maxim allowance of time is
given for broadcasting of recorded music (needle time) of local content, consistently with local content quotas as may
be developed by the broadcasting industry to increase the play of such music as follows:
(i) 80% of play of local music in public and community radio stations; and
(ii) 60% of play of local music in private radio stations;
(d) promoting compliance with subsections (1)(a), (b) and (c) above by –
(i) obliging the institution regulating the broadcasting industry to use measures to ensure compliance with
the obligation to promote local programming; and
(ii) monitor developments of copyright law and its implications in the broadcasting industry.
(2) Section 10A shall have a retrospective operation, as the date of publication and adoption of quotas for programming
of local content as may be developed for the broadcasting industry.”.
Key Amendments
h) Broadcast
Issues around ‘local content’: definitional
Independent Broadcasting Authority Act (1995) defines ‘local television
content’ as “a television programme (excluding broadcasts of sports
events and compilations of them, advertisements, teletext and continuity
announcements) that is produced by a South African broadcaster, or by
South African people”.
The definition of South African music meets two of the following criteria:
• The lyrics are written by a South African citizen
• The music is composed by a South African citizen
• The music and/or lyrics are performed principally by musicians who are
South African citizens
• The musical work is a live performance recorded wholly in South Africa,
or performed wholly in South Africa, and broadcast live in South Africa.
Key Amendments
h) Broadcast
Issues around ‘local content’: quotas
Setting of quota-level (according to three tiers of broadcasting; public,
community, and commercial); transparency; representation; and
enforceability:
“Due to a number of factors, including the absence of an effective
monitoring system, ICASA (Independent Communications Authority of
South Africa) has failed to monitor the SABC’s adherence to its license
conditions and to its local content regulations (quotas). This has led to a
situation where the SABC has been allowed to air endless repeats and
too great a proportion of international programming.” – Right2Know,
2011
“Calculating local content is a complex job, and there are concerns that it
is not being done correctly. All minutes of shows aired for the first time
count towards the quota, but a first rerun counts just 50% of time, while
subsequent flightings cannot be counted”– Marc Schwinges (of SA
Screen Federation), themediaonline.co.za, 2011
Key Amendments
h) Broadcast
Issues around ‘local content’: current (Jul-Aug 2015)
consultations with broadcasters (SABC, M-net, Vodacom, etc.)
and interested parties on local content regulations.
In collecting submissions, ICASA (2015) state:
“The Authority acknowledges that there is no universal definition
of social and cultural objectives such as cultural diversity,
national identity. However local content programmes should
recognize and reflect the diversity of all social and cultural
backgrounds in South African society.”
Questions to consider: what it means for obligations on ‘local
content’ to appear under the Copyrights Act?; meaning and
enforceability of ‘cultural objectives’?
Key Amendments
i) Infringements
The Amendment Bill inserts a list of potential offences (Section 23), including:
“(4) Any person who –
(a) tampers with information managing copyright, as contemplated in subsection 20A(16) of the
Act, shall be guilty of an offence;
(b) omits to pay the author or creator of the copyright work a royalty fee as and when the
copyright work is used as contemplated in subsection 9(4) of the Act, is guilty of an offence;
...
(j) contravenes the provisions relating to the royalty rights of the creator in the case of resale of
copyrighted work shall be guilty of an offence.
(5) A broadcasting institution that contravenes the principles of this Act, for failure to promote
local broadcasting and local programming in television and radio, shall be guilty of offence.”
The penalties of which is stated as:
“(6) Any person who is found guilty as contemplated in section 23(4) above, shall be liable on
conviction to imprisonment for a period not exceeding ten (10) years or to a fine not exceeding
fifty thousand (R50 000) or to both imprisonment and a fine. Deregistration of institutions found
guilty as contemplated in the provisions of this Act, shall be a measure of last resort.”.
Centres around implementation: suggests that legislation surrounding ‘local content’ is not
liable to offence, i.e. it is not ‘unlawful’ to miss quotas and therefore the legislation is not
binding, which is problematic.
Key Amendments
j) Orphan works
Orphan works refer to ‘works in which copyright still subsists but the
right holder, both the creator of the work or the successor in title cannot
be located’.
Applies to two amendments in the Bill (Sections 21 and 22). A key
amendment is proposed in Section 21 by the addition of
the following subsection to the already contentious clause that entitles
copyright ownership of works to “periodicals” (e.g. newspaper
proprietors) and commissioners, i.e. employers:
“(3) Ownership of any copyright whose owner cannot be located, is
unknown, or is deceased shall vest in the state: Provided that if the
owner of such copyright is located at anytime, ownership of such
copyright shall be conferred back to such owner.”
NB: no specific mention of ‘orphan works’ perhaps due to ‘deceased’
category, and the nature of this section which only affects digitally
reproducible works (e.g. not paintings or craft works).
Key Amendments
j) Orphan works
Then the Bill stipulates the procedure for using the orphaned work as follows:
“22A Assignment and licences in respect of orphan works
(1) A person who wishes to obtain a licence to do an act which is subject to copyright in respect
of orphan works, must make an application to the Commission.
(2) Before making an application in the prescribed manner, the applicant shall publish his or her
intention to make such application in the national gazette and two (2) daily newspapers having
national circulation within the Republic, in English and any other official language.
(3) Every such application shall be made in such form as may be prescribed and shall be
accompanied by copies of the published advertisement issued in terms of subsection (2) and
such fee as may be prescribed.
(4) Where an application is made to the Commission in terms of this section, the Commission
may, after holding any inquiry as may be prescribed, grant to the applicant a licence to do such
act which is subject to copyright, subject to the payment of a royalty and subject to such other
terms and conditions as the Commission may determine.
(5) The Commission, upon receipt of such application and having been satisfied that the
applicant has undertaken reasonable steps prescribed in this section may, issue a licence
subject to terms and conditions it may deem appropriate.
...
(13) Any person who can adduce evidence that he or she is the owner of orphan works, he or
she may have the copyrighted work returned to him or her with a claim in law to recover any
fees that accrued to the copyright work.”
Questions around de facto government ownership and implications (powers to “deem
appropriate conditions”, potential alternatives, incentive-structures to pursue potentially
orphaned works, and relation to education/inter-library exemptions (Section 19).
General thoughts for discussion
• The relevance of the Department of Trade and Industry
(DTI) administering this cultural policy – how much input
from creatives and the Department of Arts and Culture
(DAC)?
• ‘Fair use’ – limits of parody, cartoon, pastiche clauses,
even for non-commercial uses?
• ‘Local content’ – how valuable is this policy and what does
it mean in terms of intellectual property?
• Orphan works – how protective is the de facto ownership
of orphan works by the government, and why the neglect
of open source databases solutions?