Introduction

The Copyright Amendment Bill was first published for public comment in 2015 and was predominantly met with a large amount of criticism. The bill's overall intention was commendable and, in theory, it seemed promising. However, it was clear that the bill would not work in practice and was difficult to unpack and understand when considered in further detail. Two years later, a revised bill has been tabled in Parliament. While a number of previous issues have been addressed, the bill's drafters have retained and even created a number of new problems.

What's right?

The new bill is easier to read. Although it still contains sections that are convoluted, poorly worded and in need of refinement, overall, its structure makes more sense.

In addition, the bill contains new provisions specifically relating to the general exceptions regarding copyright protection of computer programs, which – on the face of it – are to be welcomed.

Initially, a large portion of the bill contained provisions concerning a new type of work – namely, craft works (which were already covered by the definition of a 'work of craftsmanship') – and provisions relating to performers' rights which should have or had already been addressed in the Performers' Protection Act and the Performers' Protection Amendment Bill (which has been published for public comment). The bill also contained provisions specifically concerning certain obligations imposed on the broadcasting industry, which were inappropriate for the Copyright Act. These have been removed.

Further, the initial bill proposed that copyright in an orphan work would vest in the state perpetually. Thankfully, this provision has also been removed.

What's still wrong?

The drafters refer to 'users' throughout the bill, as though such users are rights holders. The term is often used interchangeably with other terms, such as 'author' or 'rights holder', and it appears that users (who have not been defined) can now claim a royalty despite the assignment of copyright. This is confusing and the term could have disastrous consequences if it remains in the bill.

Although the resale of royalty rights is now limited to artistic works, the definition of 'artistic works' is so broad that the right would even apply where the copyright in logos created by graphic designers are used as trademarks which subsequently obtain a substantial amount of goodwill. Arguably, graphic designers would enjoy an inalienable right to receive royalties under this provision.

In addition, portions of the bill appear to ignore the principle of national treatment. This principle is one of the cornerstones of copyright law and therefore cannot be overlooked.

Further, the bill now refers to 'fair dealing' and 'fair use' almost interchangeably, despite the fact that they are two different legal concepts.

Textbooks which "cannot be obtained at a price reasonably related to that normally charged in the country for comparable works" can now be wholly reproduced without permission. However, what constitutes a reasonable price is unknown.

Finally, a number of provisions seek to restrict commercial contracts unduly. The assignment of copyright remains limited at 25 years, after which it appears that the copyright will vest in the last assignor. If the drafters intended that the copyright would be returned to the author after 25 years, this would not be the case if more than one assignment had taken place. Thus, if the catastrophic effect of replacing a copyright owner's ability to assign a work with a 25-year exclusive licence is ignored (which is effectively what the drafters have done), there is little point of an exclusive licence if it may not even benefit the author.

This list goes on and although some headway has been made, a lot of issues still must be addressed before the bill is suitable for adoption.

Comment

Members of the public and stakeholders were able to submit their comments and written submissions on the bill to the Portfolio Committee on Trade and Industry by June 30 2017.

For further information please contact Tammi Pretorius at KISCH IP by telephone (+27 11 324 3000) or email (tammip@kisch-ip.com). The KISCH IP website can be accessed at www.kisch-ip.com.

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