PASA and the Copyright Amendment Bill
Pursuing the recommendations of the Copyright Review Commission (2011), the South African Department of Trade and Industry released the first version of the Copyright Amendment Bill in 2015. PASA supported the need expressed by numerous copyright stakeholders for a review of the 1978 Copyright Act and its regulations. After comprehensive feedback from stakeholders – in which many raised severe concerns about the direction the Bill was taking and the drafting errors it contained – the revised Copyright Amendment Bill was published in 2017.
PASA has participated in the consultation process throughout, presenting in parliament during public hearings and submitting written comments on the Bill on behalf of its members.
The documents submitted are available below.
The report of the Copyright Review Commission, mentioned above, is available here for background reading:
The Draft Copyright Amendment Bill, 2015
“In summary, PASA’s view is that modernisation of copyright is desirable, but should not be rushed. The current draft Bill is ample demonstration that rushing the drafting of legislation not only leads to clerical errors, but errors in design and concept, which can only lead to faulty implementation.”
Download the full submission here:
The Performers’ Protection Amendment Bill, 2017
The Draft Copyright Amendment Bill of 2015 aimed to revise both the Copyright Act and the Performers’ Protection Act to protect performers’ rights.
In 2017, two separate bills were published for commentary: The Performers’ Protection Amendment Bill and the revised Copyright Amendment Bill.
PASA submitted commentary on the Performers’ Protection Amendment Bill, stating that its interest in the Bill is largely limited to items which it expects will have equivalents in the Copyright Amendment Bill, once it is introduced. The submission therefore focuses on three topics:
- The need for South Africa to become a party to international treaties on copyright and, by extension, performers’ rights
- Strengthening the rights of authors and publishers and, by extension, performers, in accordance with international norms
- Miscellaneous points on the conceptualisation and drafting of the Bill.
Download the full submission here:
The Copyright Amendment Bill, 2017
The point of departure in PASA’s submission on the 2017 Copyright Amendment Bill is that the legislator has the opportunity to create effective and meaningful legislation that will advance the interests of authors, artists and composers and the creative industries as a whole by protecting their interests, whilst creating a sustainable equilibrium between incentivising local creators, and the needs of consumers of content. This approach will support copyright’s founding social purpose of encouraging learning.
PASA proceeds to submit that:
“The Bill in the form as introduced to Parliament, due to the many faults in its preparation and drafting [...] is not a starting point to develop effective legislation.”
In its submission on the 2017 Bill, PASA recommends fast-tracking some proposed amendments, subjecting other provisions to proper consultation and assessment, while excluding certain proposed amendments entirely.
In two annexures to the submission, PASA expounds the role and function of book publishers, as well as PASA’s position on copyright and the public interest.
Download the full submission here, as well as the two annexures:
- Download: PASA_Submission_Copyright_Amendment_Bill 7Jul2017
Download: Annexure 1 - What Publishers Do
Download: Annexure 2 - Copyright and the Public Interest
PwC Report: The expected impact of the ‘fair use’ provisions and exceptions for education in the Copyright Amendment Bill on the South African publishing industry
In the absence of any independent socio-economic impact and regulatory assessment by the legislator, PASA commissioned PriceWaterhouseCooper (PwC) to assess the anticipated impact of the Bill’s ‘fair use’ provisions and the copyright exceptions for education and other institutions on the South African book publishing industry.
Amongst other things, the report states:
“[A] weighted 33% decrease in sales [is] expected. In many cases the response to these negative impacts would be significant restructuring, retrenchments and – in some cases – business closure. On a weighted basis, a 30% decline in employment is expected in the event that the Bill is promulgated. It is also likely that the volume of imported publications will increase and exports will decrease. South Africa would become more dependent on imported knowledge production.”
The full report is available here:
In addition, PASA, in conjunction with DALRO, the Dramatic Arts and Literary Rights Organisation, sent the following supplementary submissions to elucidate existing positions and provide new information.
- On ‘fair use’: Download: Supplementary Submission On ‘fair use’
- On library exceptions: Download: Supplementary Submission Library Exceptions
- On a two phase process for the Bill, and support for exception for the visually disabled in line with the Marrakesh Treaty: Download: Supplementary Submission Process Marrakesh Exception
Copyright Amendment Bill, June 2018
On 19 June, the Portfolio Committee on Trade and Industry invited submissions from stakeholders on a closed list of 21 provisions included in the revised Copyright Amendment Bill, 2018. PASA’s submission in response to this invitation is available below.
Copyright Amendment Bill, October 2018
In October 2018, the Portfolio Committee on Trade and Industry invited submissions from stakeholders on a closed list of new provisions, mainly concerning collective licensing and parallel importation, in the revised Copyright Amendment Bill. PASA and DALRO's joint submission in response to this invitation is available below.
IPA statement, 13 November 2018
"When South Africa announced its intention to review and modernize its copyright law, the original purpose was to benefit South African performers and authors who were not receiving fair remuneration for their own intellectual property creations. Unfortunately, the Copyright Amendment Bill strays far afield from this intended purpose. The Bill introduces a broad fair use clause, alongside extended general exceptions and new exceptions for educational institutions, libraries, archives, museums and galleries, thereby weakening the position of South African authors and publishers. It also contains other features not meeting international best practice.
IFRRO statement, 24 October 2018
"The International Federation of Reproduction Rights Organisations (IFRRO), at its Annual General Meeting in Athens, strongly urges the South African Parliament to protect authors’ rights, support creativity, and to reject proposals that would weaken copyright protection.
"In South Africa, appropriate and effective legal measures are already in place to ensure access to published works by educational institutions, including collective licensing by DALRO, the local copyright management organisation and member of IFRRO."
IAF statement, 9 November 2018
"IAF is concerned that, as it stands, the proposed reforms to the Copyright Amendment Bill would have the unintended consequences of harming the livelihoods of creators and undermining the creative industries of South Africa. These reforms would harm authors’ earnings, particularly for those who write works for education."
Monica Seeber’s article in City Press, 11 November 2018
"The idea was to improve the law for creators – specifically for musicians, but also for authors of written works and for visual artists. But this ran into strong opposition from those who wished to disseminate books and journal articles freely to pupils and students under the principle of 'access'.
"The Copyright Amendment Bill allows works intended 'for education' to be copied without permission or payment. There are conditions attached – it is not quite so simple – but the bottom line is that authors of books written for schools and universities will suffer a loss of royalties because their books will be bought in much smaller numbers. Hardest hit will be authors writing in indigenous languages as their readership among the general public is small, and their books are only bought in large numbers when prescribed for schools and universities.
"Some claim that the overriding importance is 'access' and that copyright law 'locks away' information. Some even claim that copyright prevents people from creating! Although copyright is a subject that easily inflames emotions, it is often poorly understood.
"Anfasa supports access. We do not write to lock our work away and hide it from readers – we understand that knowledge requires accessible information."
ICMP statement (the world trade association representing the interests of the music publishing community internationally), 26 October 2018
“South Africa has the potential to be one of the world’s next big music markets but several aspects of this Bill put investment and creative talent at risk. We will work to invest in a country with a clear and modern legal framework that doesn’t erode copyright, which is essential to creators,” said ICMP Chair Chris Butler...
“Such major reform is infrequent, making it all the more vital. We urge the government to closely heed the detailed submissions made by South African music publishers. A US-style fair use exception or limiting copyright assignment would be regressive for South African music. A successful outcome which boosts copyright will enhance South Africa’s outstanding musical talent at home, and abroad,” added ICMP Director General John Phelan.