South African Copyright Law In Peril – Another government department makes a hash of things

South African Copyright Law In Peril – Another government department makes a hash of things

 

There is no delicate way to present this article. South African copyright is in dire straits. In recent months, you might have noticed a series of reports of all manner of organisations pleading with Pres Ramaphosa to send back the controversial Copyright Amendment Bill (“CAB”) to Parliament for reconsideration. In simple terms: what, exactly, is this all about? And why are matters so serious?

 

In summary: the CAB was steamrollered through Parliament, the National Assembly and the National Assembly Of Provinces, all in record-time, under the stewardship of the Department Of Trade & Industry (“DTI”) – the same ministry responsible for the running of the Patent, Design and Trade Marks Offices. Public comment was invited (in very much the same way that Stalin & Chairman Mao invited “constructive criticism” on their running of affairs).  The response was farcical and shambolic (in the proper sense of the word): countless expert IP practitioners, and other skilled practitioners, produced volumes of commentary that dwarfed the size of the Bill itself, more than one-hundred-times-over! And yet, the DTI refused to embrace the advice of the experts. In the deluge of response, not a single recommendation was accepted.

 

There are too many flaws in the CAB to mention here. For present purposes, it is enough to point out that it does not pass constitutional muster, it places South Africa in contravention of its obligations under several international treaties. The document has been drafted by authors who, almost certainly, have no experience at all in copyright law or legislative interpretation. Perhaps the largest single problem with the CAB is the proposed imposition of a “fair use” exclusion: a vague, desperately broad & poorly crafted attempt to permit unrestrained exploitation of copyright–protected works. Regrettably, off-the-cuff comments by a number of politicians (notably: former Minister Derek Hanekom) in support of this exclusion has only served to exacerbate matters.

 

The position is redolent of the misadventures of another Ministry, that of Science & Technology (“DST”) which, in 2014, established an “Expert Panel”, tasked with the preparation of a policy document on the R&D tax incentive. The DST was insistent that no intellectual property experts would be permitted to participate on or make recommendations to the Panel. The inevitable result was the precipitated demise of the entire incentive, rudderless in the vacuum of experts.

 

In the latest salvo to be fired against the CAB, just last week, the US government has threatened to withdraw South Africa’s preferential trade status, should the Bill be adopted in its present form. If that were to occur, it is expected that South Africa could lose up to R12b in exports.

 

In both instances, the message is the same: not heading the advice of specialist IP practitioners in matters steeped in IP is a recipe for unmitigated catastrophe. We will certainly report updates, as they arise.

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