The Copyright Amendment Bill
Presentation at the Internet Rights, Cultural
Development and Balancing Features in SA Copyright
Reform
The HUB, PRETORIA
11 August 2015
Presenter
• Mr MacDonald Netshitenzhe: Chief Director, Consumer and
Corporate Regulation Division
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Purpose
The purpose of this presentation is to consult with Copyright
Stakeholders on the Copyright Amendment Bill, 2015.
Goal: To get comments and inputs on the Copyright Amendment Bill
in view of the digital era and multilateral agreements and to ensure
consistency and coherence in aligning the approach of various
Stakeholders and Government Departments to Intellectual Property
(IP) matters.
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Problem Statement
•
the dti as a custodian of Intellectual Property (IP) has the identified that IP
Legislation are not updated to be in line with flexibilities found in multilateral
arrangements, in the area of copyright the Act limits the access to education,
access to knowledge, learning materials for the nationals and people with
disabilities. The creative industry in particular musicians, are vulnerable to
abuses by users of their IP.
•
Local artists, performers, composers and other authors of copyright works are
dying as paupers because royalties of their works are not paid.
•
The universal purpose of Copyright is to reward and incentivise creators of
knowledge and art. Various sectors within the South African Copyright regime
are dissatisfied. Ranking highest are the local performers and composers, who
have not benefitted due to the lack of access to the Copyright system.
(Copyright Review Commission (CRC) report 2011).
•
The digital environment is not catered for in the Act.
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Problem Statement
• Dispute resolution processes are not speedily as courts are over
loaded with work. The Copyright Tribunal is presided over by
Judges of the High Court and disputes are not resolved speedily.
• There is no obligation on the side of Government to impart
knowledge on the public on Copyright issues. Education and
awareness for stakeholders is not taking place effectively.
Education and awareness programs are to be addressed in order
to develop and support the growth of the creative industry and to
encourage South Africans to be creators of Intellectual Property.
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Objectives of the Bill
• To develop a legal framework on Copyright that will promote
accessibility to producers, users and consumers in a balanced
manner; this includes flexibilities and advancements in the digital
space that should empower all strata of the citizens of South
Africa.
• To address the licensing of Copyright works/material in relation to
commissioned work to facilitate commercial exploitation by any
person so licensed.
• To ensure that IP legislation remains updated in view of the ever
evolving digital space; that current legislation does not limit access
to education; that access to information and resources are
available for persons with disabilities and that artists and authors
of works do not die as paupers due to ineffective protection.
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Objectives of the Bill
• To provide exceptions and limitations in order for South Africa to
address national needs, to encourage international organisations
to take into consideration “new emerging issues” in the area of
Copyright which enhances access to and use of copyright works.
• To enhance access to information for the enhancement of
education and research and payment of royalties to alleviate the
plight of the creative industry.
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Proposed Amendments Copyright and
Performers Rights
Issues to be introduced
What the Bill provides
Crafts Works
The Bill introduces and defines Crafts Work as
works of pottery, glasswork, sewing, knitting,
crochet, jewellery, tapestry, woodwork, lace
work, embroidery, paper tolling, folk art and
hand-made toys.
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Proposed Amendments Copyright and
Performers Rights
Issues to be introduced
What the Bill provides
Collection of Royalties/ Royalty Management
Section 10 of the Bill which provides for the
insertion of section 9B – 9F after section 9A into
the principal Act provides in section 9B(1) and
(2), inter alia, that:
“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...”
“In cases where there is no Collecting Society,
contractual arrangements between copyright
owners and creator shall be prescribed by the
Minister.”
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Proposed Amendments Copyright and
Performers Rights
Issues to be introduced
What the Bill provides
Minimum Contractual terms
This is so as to safeguard the rights of
contracting parties. the dti must develop a
standardised template of terms and conditions
for contracts for the creative industry, for
example between performers and recording
companies.
All collecting societies must be regulated by the
Companies and Intellectual Property
Commission (CIPC)
Section 10 of the Bill which provides for the
insertion of section 9B stipulates, in section
9B(1), that:
9B – “There shall be one Collecting Society....to
be registered and regulated by the Commission
(CIPC).”
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Proposed Amendments Copyright and
Performers Rights
Issues to be introduced
What the Bill provides
Reciprocity on Needle Time
Section 10 of the Bill which provides for the
insertion of section 9C stipulates, in section
9C(2)(a), that:
A Collecting Society may enter into an
agreement with any foreign society or
organisation administering rights corresponding
to rights under this Act, to entrust to such foreign
society or organisation the administration in any
foreign country of rights administered by the
said Collecting Society in the Republic: Provided
that no such Collecting Society or organisation
shall permit any discrimination in regard to the
terms of licence or the distribution of royalties
collected.
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Proposed Amendments Copyright and
Performers Rights
Issues to be introduced
What the Bill provides
Collecting Societies to collect only for their
registered members
Collecting societies practice of distributing
unallocated revenues is unacceptable
Exceptions and Limitations
Section 22 of the Bill which provides for the
insertion of section 19C – 19E after section 19B
of the principal Act makes provision for
exceptions and limitations for libraries,
museums, galleries and people with
disabilities.
Beijing Treaty
Section 24 of the Bill which provides for the
insertion of section 20A(4) grants performers
four kinds of economic rights for their
performances fixed in audio visual fixations,
namely: (c) reproduction; (d) distribution; (e)
rental; and (f) making available
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Proposed
Amendments
Issues to be introduced
What the Bill provides
Marrakesh Treaty
Section 22 of the Bill which provides for the
insertion of section 19C into the principal Act
makes provision for making accessible formats
of a work to accommodate persons with
disability.
WIPO Performances and Phonograms
Treaty(WPPT)
Section 24 of the Bill which provides for the
insertion of section 20C into the principal Act
makes provision for the producers of
phonograms to enjoy an exclusive right of
authorising the provisions in section 20C(2)(a-d)
of the Bill. Both the performer and producer of a
phonogram shall enjoy the right to a single
equitable remuneration in terms of section
20C(3) of the Bill.
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Proposed
Amendments
Issues to be introduced
What the Bill provides
WIPO Copyright treaty (WCT)
Section 24 of the Bill which provides for the
insertion of section 20F into the principal Act
makes provision for the protection of the rights
of their authors in the digital sphere is an
authenticated user with a legitimate right to use
the material.
Films, TV and Radio Shows, Photographs
The commercial re-use of works such as the
rebroadcasting of films in the area of copyright
without any compensation to the author is
unfair.
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Proposed
Amendments
Issues to be introduced
What the Bill provides
Resale of Original Work of Art
Section 6 of the Bill which makes provision for
the insertion of section 7A into the principal Act
stipulates in section 7A(1) that 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.
Local Content
Section 11 of the Bill which provides for the
insertion of section 10A stipulates that the
broadcasting industry is under obligation to
develop the culture and support the growth of
local content in specified areas of the Republic.
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Proposed
Amendments
Issues to be introduced
What the Bill provides
Orphan Works and Exceptions and Limitations
Section 25 of the Bill which provides for the
insertion of section 21(3) into the principal Act
stipulates that:
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.
Furthermore, section 27 of the Bill which
provides for the insertion of section 22A into the
principal Act makes provision for a person who
wishes to obtain a licence to do an act which is
subject to copyright in respect of orphan works.
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Proposed
Amendments
Issues to be introduced
What the Bill provides
Fair Use of Copyright Work
Section 14 of the Bill which provides for the
insertion of section 12A which deals with the
exception of fair use stipulates, inter alia, that:
“Notwithstanding any provision of this Act, fair
use of work eligible for copyright includes the
use by reproduction in copies, translation or by
any other means which does not require the
granting of licence as specified in the Schedule
hereto.....”
Furthermore, this section stipulates the factors
that need to be considered in determining
whether the use of a copyright amounts to fair
use.
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Key Issues
Key Issues:
1. FLEXIBILITIES
1.1 Access to Education
1.2 Access to Knowledge
1.3 Access to learning Materials
1.4 People with Disabilities
1.5 Access : Libraries and Orphan Works
2. ARTISTS
2.1 Performers
2.2 Accrual of Royalties
2.3 Joint Owner of Copyright
2.4 Rights to be managed
2.5 Resale
2.6 Percentages of Royalties
2.7 Separate Collecting Societies
2.8 Composers/ Authors/ Fixation
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Key Issues
Key Issues:
3. PHONOGRAMS/ PERFORMERS RIGHTS
3.1 Copyright Owner (Joint Ownership?)
3.2 Royalty Accrual to parties
4. COLLECTIVE MANAGEMENT
4.1 One Collecting Society per right
4.2 Right of Resale: Separate Collecting
Society?
5. COLLECTING SOCIETIES
5.1 Collective Management in the Digital
Environment
5.2 Treaty Language (WPPT + WCT)
5.3 Reciprocity in terms of the Rome
Convention (ILO)
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Key Issues
Key Issues:
6. TRIBUNAL COLLECTIVE
6.1 Parties to determine rates
6.2 Moral and Economic Rights separated
6.3 Tribunal to be informed by economics in
determining rates
7. TREATIES INVOLVED
7.1 WPPT
7.2 WCT
7.3 ILO CONVENTION
ETC…….
8.
MEMBERS OF THE IP TRIBUNAL
Requirements?
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Thank You
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