International concerns about copyright on the internet and in print publications can seem a little far off from our position here at the southern tip of the world.
Acronyms like TRIPS, PIPA and SOPA have Americans up in arms because of the heavy handed trade-offs between personal freedom and copyright protection contained therein, but here in South Africa such matters can seem a little academic.
This is before one considers that the biggest proposed revision to South African copyright law for decades has recently been drawn up by the Department of Trade and Industry (DTI), and its effects are potentially far reaching. It’s been both praised and criticised by activists at the Electronic Frontier Foundation, and the good news is that the deadline for commenting on the draft Copyright Amendment Bill has been extended until next week.
Originally, public comments on the Bill were scheduled to be closed on August 27th, but this has now been extended until September 16th.
We asked Dr Tobias Schonwetter, Director of University of Cape Town’s Intellectual Property Unit and Regional Coordinator (Africa) for Creative Commons, to outline a few of the 49 page Bill’s most pertinent points.
Many organisations have already submitted comment – much of it highly critical – and Schonwetter believes that the extension of the draft Bill is due to repeated requests for an extension from groups that have yet to submit their comments.
“This Bill tackles a number of highly complex issues that require consultation with those most affected by the changes – authors and users of creative materials alike,” says Schonwetter, “and a proper consultation process takes time. We have waited for many years for a revision of our outdated Copyright Act.”
Schonwetter is of the opinion that copyright law in South Africa is definitely in need of an overhaul, and it needs to be adjusted to fit into the digital age. So far, he says, The DTI has appeared receptive to criticism of the original Bill.
“I have thus far been impressed by the way the DTI has handled the consultation process. This whole process has been very open, respectful and transparent,” he says, “I particularly like the DTI’s approach to request model language from experts in the field to further improve the draft legislation.”
Perhaps the most controversial part of the Bill is around orphan works and the duration of copyright for creators. Under the proposals, copyright on original works can be claimed by a performer or artists for their entire life and, by their estate, for 50 years after their death.
This is relatively conservative by international standards, which have been pushing for a 70 year exclusivity period before the copyright on a dead author’s work lapses.
The controversial part, however, is that once copyright lapses or if the original creator of a work cannot be located (and it becomes an orphan work) under the terms of the draft Bill it won’t pass into the public domain. Instead, government will collect royalties due on it.
While that may sound like a great revenue stream, think about it this way: imagine if this law existed in the past and government would be able to charge schools for every performance of Shakespeare they put on. Or if Miriam Makebe had had to pay royalties to the estate of the original author of Qongqothwane?
Schonwetter suggest that instead of the rights falling to the State (or the State trying to figure out what to do with it), it should be entered into the domain of Fair Use.
“What is proposed doesn’t sound like a workable solution and I can see some troubling details here – such as the perpetuity of copyright protection for orphan works,” he says, “In longer discussions with colleagues we realised that based on the experiences in the US – and in light of the DTI’s plan to introduce a fair use provision into our copyright law – it may actually be best to simply rely on fair use in the context of orphan works instead of trying to come up with a orphan works-specific system.”
Schonwetter also argues that the provisions for fair use – the ability to quote an article or song without paying royalties on it – also need to be tightened and there are contradictions within this Bill and with existing legislation.
“The fair use provision, in its current form, is too complicated,” he says. “Moreover, the conflict between the Electronic Communications Act and the Copyright Act is not yet fully resolved. Another concern is that the current draft deals with issues that in my opinion should not be dealt with in our copyright law.”
“Quotas for local content is one such example, performers rights – for which we have the Performers Protection Act – is another. Lastly, the proposed criminal liability for many forms of copyright infringement appears too disproportionate.”
Schonwetter’s Intellectual Property Unit at UCT is planning to submit comment.
“Closer to the deadline we will submit our comments, together with model language. We will speak to most proposed provisions but in line with the work we do at the IP Unit, a key focus will be public interest considerations and adequate opportunities for access to knowledge.”[Image – CC by 2.0/Sam Teigen]