Copyright warning for South Africa

Academics warned that South Africa’s Copyright Amendment Bill (CAB) and Performers Protection Amendment (PPA) Bill could irreversibly damage the creative industry and the livelihoods of authors, artists, and filmmakers.

Parliament adopted these two pieces of legislation towards the end of February 2024. They are now awaiting President Cyril Ramaphosa’s signature to become law.

There has been significant resistance against the CAB, including rejection from MPs in the DA, EFF, FF+, and ACDP. Even ANC General Secretary Fikile Mbalula has said he would encourage President Ramaphosa not to sign either bill.

The Department of Trade, Industry, and Competition introduced the legislation in 2017 to modernise the Copyright Act 98 of 1978.

In July 2020, previous versions of the bills approved by Parliament were referred back to lawmakers from the president’s office for reconsideration.

Ramaphosa expressed concern that the provisions would entitle copyright owners to a lesser share of the fruits of their property and raised issues with technical shortcomings.

Among the CAB’s many industry critics are eMedia, MultiChoice, and Netflix.

In a statement shared with MyBroadband, MultiChoice said the bill would not advance the creative industry and would undermine investment in film and TV.

“Additionally, we believe that the bill does not comply with international instruments and may prejudice the interests of both creators and the rights holders who purchase their works,” MultiChoice said.

The International Publishers Association, the International Association of Scientific, Technical, and Medical Publishers, the International Authors Forum, and the International Federation of Reproduction Rights Organisation previously also called on lawmakers to reject the bill.

Those in support of the fair use concept include the likes of Google as it gives them free access to content that can be monetised.

The South African Democratic Teachers’ Union and the Library and Information Association of SA are also in support due to the benefit to educators.

Academic perspective

UJ humanities professor Keyan G Tomaselli and Unisa commissioning manager Hetta Pieterse have gone as far as to say the CAB would legalise the theft of original South African work by international parties.

They pointed out that the major issue with the CAB is its introduction of the “fair use” concept applied in US copyright law.

Under the existing South African Copyright Act, licenced material can be reproduced affordably for education in course packs in “fair dealing”, in alignment with international treaties.

“It does so by exempting the use of copyright works for certain statutorily defined purposes relating to particular types of works. This provides clarity to all concerned,” the duo explained.

“Fair use” allows the reproduction or use of copyright-protected material without the author’s or publisher’s prior consent or permission. “Crucially, it does not restrict its application to clauses of permitted purposes of use,” the academics warned.

In the CAB’s interpretation of fair use, the door is opened to unlimited use by the inclusion of a “such as” phrase.

“This reconstitutes a list of previously specific uses into mere examples of diffuse uses that might qualify in legal terms, thereby robbing authors of the right to thwart unauthorised use of their intellectual property,” Tomaselli and Pieterse said.

Legal problems

Law firms have also rung the alarm bells.

Webber Wentzel’s Joshua Leroni and Carla Dennehy said the bills would cause a copyright “calamity” in South Africa.

While the PPA would grant actors and musicians royalty payments for when their works are broadcasted or streamed, it restricts them from freely contracting with businesses on commercially favourable terms aligned with international norms.

“The legal risk of working with South African creators will increase,” Leroni and Dennehy said.

The firm warned that companies would move their business and investment to countries that provided the best competitive advantage for copyright protection.

They argued this would either leave creators without a source of income or would leave South Africa without creators.

Webber Wentzel expects a significant legal fight if Ramaphosa assents to the bills.

Cliffe Dekker Hofmeyr said that much of the detail in both bills — including royalty percentages, time frames, and offices of authority — must still be published in regulations.

However, corporate and commercial law consultant Emma Kingdon said the interpretation of the new provisions would present many challenges.

“We will have to deal with anachronisms like the requirement that where an author is unknown, one has to the apply to the Commission of Companies and Intellectual Property as well as publish an advertisement in the Government Gazette and two daily newspapers.”

Kingdon also said the requirement that contracts renounce a right or protection afforded by the Copyright Act unless the work was made subject to an open licence or dedicated to the public domain was not enforceable.

“This prevents parties from contracting out of the provisions of the Act, which seems an unfair restriction of one’s right to contract freely,” Kingdon said.

“This has the potential to create a number of obstacles to the effective commercial exploitation of intellectual property, which have to date been successfully managed in accordance with international practice.”