The constant criticism of the Copyright Amendment Bill is against the interests of authors and other creators. What critics fail to note is that the bill includes some of the most progressive and aggressive provisions of any copyright law in the world; it increases the rights of authors and others to create, own their work and be remunerated fairly.
The main lobbyists against the bill, supported by global monopoly publishers and music labels, point to its expanded limitations and exceptions to copyright for education, research and other public interests. They are encouraging authors and creators to sign a petition to stop the bill. But many of those who signed the petition either did not read the bill or, if they did, do not understand it.
The bill has a number of benefits for all authors and creators.
The right to create
The limitations and exceptions to copyright protection do not only serve public interest organisations, they also serve authors and creators themselves.
Fair Use: Section 12A permits the transformative use of artists and creators, especially when licensing from international content monopolies is impossible or prohibitive. Countries that have fair use can use South African works by applying the 4-factors. But South Africans cannot enjoy reciprocal use of their works, because fair dealing is too restrictive. Fair use is flexible and will remedy this situation, by widening access to other copyright works. There is no evidence that fair use has damaged creative industries or caused unemployment for creatives in the dozen countries that have it in their copyright law. (See: Unpacking the positive sides of fair use for society and creatives at large)
Commissioned works: Section 21 of the bill removes statutory presumption of complete ownership of commissioned works by the paying party. The bill enables creators, for example, photographers, to negotiate a contract with regard to copyright ownership, rather than the paying party automatically becoming the sole copyright owner for the full copyright term.
Orphan works: Section 22A provides the mechanism for licensing orphan works — works where the rights holders are untraceable, defunct or appear to have abandoned their rights in the works. Materials that have not been accessible in the past will be made accessible and usable by authors, creators, researchers and others.
Persons with Disabilities: The bill offers key solutions for people with various disabilities, including authors, creators and publishers via accessible formats (section 19D) and “fair use” (section 12A), as well as exceptions for education and related purposes (section 12B to D).
Libraries, archives, museums and galleries: Sections 12 and 19C will enable authors, creators and other users of information to access vast resources and special collections, including our cultural heritage for various purposes, including innovation, research and the creation of new works. Libraries and other information services will be able to digitise, share, replace or preserve works, format-shift and convert old material into new formats to ensure accessibility (in alternative formats, too) for the benefit of all users of their resources.
The right to own
The Bill will expand the ability of authors and creators to own the copyright in the works they write or create.
Copyright Reversion: One of the biggest problems for authors and creators is that they sign away their rights for the entire copyright term — for the same rate they negotiated at the start of the contract. But often the work becomes more valuable as their reputations grow. The bill, in section 22(b)(3), makes perpetual licences illegal. It requires the licensor to reassign or re-license the work after 25 years for literary and musical works, ensuring that creators can profit from their career growth. They can either renegotiate with rights holders or exploit their works through other channels. Similar contract reversion rights exist in the United Kingdom, European Union, Singapore and the United States. But South Africa’s would be the most pro-author or pro-creator of them all.
Contract override: Sections 12D(7)(e), 22D and 39B prevent contractual override of lawful exceptions. This will stop third parties locking creators into unfair contracts.
Secondary Publication Rights: Publishing contracts can prevent authors from sharing their work in open publications or open archives that help them gain readership, more citations and advance academic careers. The bill addresses this problem in section 12D(7)(a) by providing that authors retain the rights to publish scientific or other works for open access purposes, where the works are the result of government funding, regardless of any publication contract.
Acknowledgement: Section 12B(1)(a) requires acknowledgment when the source and author’s name(s) are on or in the work. (See: “Does the South African Copyright Bill promote Plagiarism?’)’
Moral rights: The Bill expands moral rights to include all works, including films and photographs in section 20(1-2). Moral rights may be waived, but never transferred to third parties.
The right to earn
Fair remuneration. The current law does not adequately protect authors and creators against unfair publishers’ contracts, or abusive or exploitative practices of unregulated collecting societies. This has resulted in authors and creators receiving little or nothing at all for their work, or the use of their works. The Bill provides that authors and creators should be paid fair royalties or equitable remuneration as fair recognition for their work.
Resale rights for visual artistic works: Section 7 enables visual artists to be paid royalties on the commercial resale within the art market of that work.
Regulation of collecting societies: Currently collecting societies are not formally regulated, which has led to authors and creators not receiving their fair share of royalties, and members’ monies being diverted to unrelated projects. The bill, through section 22B to F, will help authors and creators receive fairer royalties by regulating collecting societies to ensure they are more transparent and accountable. The Performers’ Protection Bill, linked to the Copyright Amendment Bill, will enable performers to earn royalties or equitable remuneration for the first time ever. (See: ANC arrest of much-needed legislative protection for performers erodes Parliament authority)
Copyright Tribunal: Section 29A provides for any party to submit claims of alleged infringement to the Copyright Tribunal for resolution. This will level the playing fields for those who cannot afford costly litigation through the courts. There are many useful online legal resources available to South African courts while they develop their own jurisprudence to guide stakeholders how to interpret and apply fair use.
World Book and Copyright Day was celebrated on 23 April, World Intellectual Property Day on 26 April, and Freedom Day on 27 April. The importance of access to knowledge, literacy, education and social upliftment was stressed in the many events that were held to celebrate these important days.
President Cyril Ramaposa must act in terms of section 79(4) of the Constitution. It is time that he signed the Copyright Amendment Bill and the Performers’ Protection Bill so that their progressive provisions can not only benefit individuals, groups or organisations but also enhance education, research, innovation and creativity, as well as advance social-economic development in our country.
Denise Nicholson is a copyright consultant.
The Copyright Amendment Bill, which is on President Cyril Ramaphosa’s desk waiting to be signed, has been unfairly and incorrectly criticised
