The Department of Trade and Industry (DTI) published the Copyright Amendment Bill, 2015 (2015 Bill) for initial comment in 2015. While there is considerable value in principle to the 2015 Bill, the 2015 Bill was met with widespread industry criticism for failing to take into account the basic tenets of copyright law. Following a review of the public comments, a revised Copyright Amendment Bill (Bill) was introduced in the National Assembly during May 2017.
A major theme of the Bill is the updating of copyright legislation in line with the everevolving dictates of a digital world. The Bill also seeks to develop a copyright and related rights framework that will protect the rights of artists, producers and authors of works through the increased regulation of royalty payments and the promotion of greater access to information, research and resources for educational purposes and by persons with disabilities.
While a number of concerns have been addressed in the Bill, there are some areas which remain largely untouched. Section 22 which deals with the assignment of copyright and the granting of licences in respect of copyright, is a case in point.
Under the Copyright Act, copyright is transmissible as movable property by assignment, testamentary disposition or operation of law. There are currently no limits on the duration of an assignment of copyright but this is set to change as s22(3) of the Bill proposes to limit assignments of copyright to a period of 25 years commencing from the date of the assignment. Of further concern is that on a strict interpretation of the section, it appears that an assignment of copyright can only be for a period of 25 years and not for a longer or shorter period.
Copyright ownership brings several benefits including unrestricted freedom of use and an ability to control third party exploitation and revenue generation opportunities. The amended s22(3) will affect the ability of the owners of copyrighted works to freely commercialise their works. Of particular concern is that the provision will impact negatively on a nascent but flourishing local production industry. Ongoing investment in the film and television industry is vital to the continued growth of this industry. This is likely to be lost if content producers are only able to acquire the copyright in productions which they have specifically commissioned for a limited assignment period.
The section also fails to differentiate between existing and future assignments of copyright. If the amendment is to apply with retrospective effect then this could amount to an unconstitutional deprivation of property rights. Section 25(1) of the Constitution provides that no person may be deprived of property except in terms of a law of general application and no law may permit arbitrary deprivation of property. This is interpreted to place both a procedural and substantive requirement of rationality on all lawful deprivations of property. This means that substantively there should be a link between the end sought to be achieved by the law and the means employed for that purpose. It is not clear what purpose is to be achieved by restricting assignments of copyright to a period of 25 years.
The owners of copyright should have the flexibility to decide on the commercial arrangements that suit them best. The proposed amendments essentially undermine the flexibility afforded in copyright ownership and use. If future assignments of copyright are to be limited to a period of 25 years then the Bill should be amended to make it clear that the period of 25 years will only be of application to assignments entered into after the Bill’s promulgation.
The Portfolio Committee on Trade and Industry has invited interested parties to submit written comments on the Bill. Public hearings will be held on 27, 28 and 29 June.