The Copyright Amendment Bill (2018): Submissions, reports, statements, articles and other documents from PASA and related organisations and individuals
The Copyright Amendment Bill (2018): Submissions, reports, statements, articles and other documents from PASA and related organisations and individuals
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. After further consultations, amendments and adoption by the Portfolio Committee for Trade and Industry, the Bill was passed by the National Assembly on 6 December 2018 and by the Select Committee on Trade and International Relations of the National Council of Provinces on 20 March 2019.
For a fuller history of the Bill, as well as a copy of the Bill, see the website of the Parliamentary Monitoring Group at https://pmg.org.za/bill/705/.
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, as well as other applicable reports, documents, articles and submissions.
* Copyright Review Commission (2011)
On 18 November 2010, the Minister of Trade and Industry, Dr Rob Davies, MP, established the Copyright Review Commission (CRC) to assess concerns and allegations about the collecting societies model that was in place for the distribution of royalties to musicians and composers of music – notably very little attention was given to literary creators (besides writers of lyrics), yet the CRC Report was a key foundation for sections in the Copyright Amendment Bill pertaining to literary authors and publishing.
Amongst other issues the Commission found:
“It is of the utmost importance that the Copyright Act and the Performers’ Protection Act be amended to govern effectively the digital exploitation of copyright works. The CRC believes that an overall impact study should be conducted and finalised to determine the appropriateness for the country to ratify and implement the World Intellectual Property Organisation (WIPO) Internet treaties…
“the dti is urged to draw up standard contracts between performers and record companies that are fair to both sides and that parties to such agreements are encouraged to use…
“The CRC believes that the Copyright Act must be amended to provide for the reversion of assigned rights to royalties 25 years after the assignment of such rights. Such an amendment will help relieve the plight of composers whose works still earn large sums of money, which are going to the assignees of the composers’ rights long after the assignees (or their predecessors) have recouped their initial investment and made substantial profits, in excess of those anticipated when the original assignment was taken.”
The report of the Copyright Review Commission is at:
* 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 (2017)
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 at:
Submissions – PASA
* 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 Draft Copyright Amendment Bill, 2015: Supplementary submissions
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’:
On library exceptions:
On a two phase process for the Bill, and support for exception for the visually disabled in line with the Marrakesh Treaty:
* Draft Copyright Amendment Bill and Performers’ Protection Amendment Bill Cirulated To NEDLAC, August 2016 – Contribution from the Publishing Industry for the BUSA Delegation in the dti-Nedlac Engagement – 15 September 2016
“All stakeholders agree that the Copyright Act needs to be updated as a matter of priority, if only to bring South Africa’s copyright law into the Internet Age.
“Drafts of a Copyright Amendment Bill and of a Performers Protection Amendment Bill were supplied by the dti and circulated to NEDLAC stakeholders, including BUSA, on 22 August 2016, in anticipation of a meeting between NEDLAC and the dti to discuss the Bills at a date to be determined in September.
“Although the Bills were approved in principle by Cabinet on 8 June 2016, neither has been introduced to Parliament or allocated bill numbers by Parliament. The dti has indicated that these documents are still subject to change. The status of the draft Bills under discussion is therefore unclear.
“These draft Bills are the first revision of a draft Copyright Amendment Bill that was published for public consultation during the period 27 July to 16 September 2015. Our information is that over 120 submissions were made in the course of the consultation period.
“Recommendation and Principal Observations
“It can only be recommended that these draft Bills are not ready to be introduced to Parliament and that the entire project should be reconsidered and the draft legislation re-written…”
* Comments on the draft Intellectual Property Consultative Framework by the Publishers Association of South Africa (PASA) and the Dramatic Artistic and Literary Rights Organisation (Pty) Ltd (DALRO) – 23 September 2016
“Both PASA and DALRO agree with the strategy proposed in para 2 of the draft Consultative Framework of breaking up the issues at hand between those that need immediate attention, those that must be looked at in the medium term and those that must be monitored and evaluated. In the consultation for the Copyright Amendment Bill, both PASA and DALRO proposed the same concept. They therefore wholeheartedly agree with the statement in para 2.vii that “Prioritising these issues affords an opportunity to establish public confidence in the process being undertaken by government.”
The “Intellectual Property Consultative Framework”, as approved by Cabinet on 6 July 2016, is at:
* 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:
* COPYRIGHT AMENDMENT BILL, NO 13 OF 2017: Proposals for text by the Publishers Association of South Africa, PASA, supported by the Dramatic Artistic and Literary Rights Organisation (Pty) Ltd, DALRO – Replacement text, 21 August 2017
“… the proposals for text, which are largely based on similar proposals made by PASA and DALRO in response to the 2015 draft which preceded the Bill.”
* 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.
* Copyright Amendment Bill, February 2019
In February 2019, the National Council of Provinces’ Select Committee on Trade and International Relations invited submissions from stakeholders to make written submissions in respect of the Copyright Amendment Bill, No B13 of 2017, which was deliberated in conjunction with the Performers’ Protection Amendment Bill, No B24 of 2016.
PASA’s submission is available below.
Submissions – Panel of experts
A panel of experts – experienced copyright practitioners selected by the Portfolio Committee – was asked in September 2018 to advise the Portfolio Committee “on any technical or drafting issues pertaining to the Committee’s amendments to the Copyright Amendment Bill”, to focus on amongst others “the appropriateness of the terminology used in the Bill, when considering the Copyright law terminology currently used in South Africa”, “whether the wording of the Bill reflects the policy objectives as agreed to by the Committee” and “whether the clauses that address international treaties, correctly reflect the content of those treaties…”. Their inputs were required by way of track changes to a Microsoft Word document containing the
The following responses were received:
• Ms Michelle Woods of WIPO, Geneva, Switzerland
“While I have tried to cover as many points related to the multilateral copyright treaties as possible in the time available for this review, there are likely additional points within this category that could be addressed…Given the instructions and the relatively limited time period for undertaking the requested review, I have not commented on a number of areas…However on the subject of collective management and several others identified in the comments, including the incorporation of the provisions of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired and Otherwise Print Disabled and the Appendix to the Berne Convention (Paris Act 197l), the International Bureau of WIPO would be available to provide further advice and assistance if requested to do so.”
• Mr Joel Baloyi of UNISA, Pretoria:
“…I was asked to focus on issues relating to the music and film industries…The most pertinent question to ask here is whether the proposed limitations and exceptions under these clauses were subjected to a three-step test, as required under the Berne Convention, the TRIPs Agreement and other international treaties...In this regard it needs to be reiterated that where the minimum rights guaranteed under international treaties are eroded by national law, such erosion shall only affect the rights of the nationals of the country concerned, and not those of other countries who are members of the same treaty. In this regard the question to ask is why the Legislature would be hellbent on clipping the wings of South African rights-holders, while foreign rights-holders can fly like eagles.”
• Mr Wiseman Ngubo of CAPASSO, Johannesburg:
“…some clauses within the Bill have no policy informing them nor have they been debated in parliament, thus the review was without much needed context…The introduction of general exceptions within the Bill requires a more extensive impact assessment. The SEIAS report does not cover any objections raised by the stakeholders, in fact it states that the stakeholders had accepted the policy issues despite how contentious these provisions proved to be. This showcases a fatal flaw in the report…the introduction of the general exceptions as currently articulated seems contrary to the policy objective which is to ensure the protection of authors and copyright owners in the digital environment…Further, the Berne Convention (to which South Africa is a signatory) established the 3 step test in relation to the implementation of exceptions and limitation of copyright. This test is also articulated in the TRIPS Agreement (to which South Africa is a signatory) as well as the WIPO Internet Treaties which South Africa intends to ratify…”
• Mr André Myburgh, of Lenz Caemmerer, Basel, Switzerland:
“The legal issues raised by the Bill and by the process it took to get to this point, are substantial and material, whether from the perspective of compliance with the Constitution, South Africa’s meeting of its obligations under the international treaties to which it is a party, and the conceptualisation of its provisions arising from the policy considerations that underly it. This advice shows that the Bill has material flaws in all these respects, very few of which can be corrected by mere changes in the wording of the clauses of the Bill… [T]he entire framework of copyright exceptions introduced in the Bill, especially what has been described as the ‘hybrid model grounded in fair use’ comprising Sections 12A, 12B, 12C(1)(b), 12D, 19B and 19C introduced by Clauses 13, 19 and 20, has not been measured against the Three-Step Test, thereby resulting in a material risk of South Africa coming into conflict with its obligations under Berne and TRIPs.”
Versions of the Copyright Amendment Bill
* Copyright Amendment Bill 2015
Copyright Amendment Bill 2017
* Copyright Amendment Bill 2018
The Bill as adopted by the National Assembly on 5 December 2018 is at
Press releases & media statements
* International Federation of Reproduction Rights Organisations (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.”
* 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.
South Africa must not squander once generation chance update online music laws
* International Authors’ Federation (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.
* International Publishers Association (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.”
* PASA Media Statement: Rushing the Copyright Amendment Bill through Parliament will compromise SAs literary and publishing industry – 14 November 2018
As a controversial Copyright Amendment Bill was on the verge of being introduced to the South African National Assembly for its Second Reading the Publishers’ Association of South Africa (PASA) questioned whether the Bill would benefit those that rely on copyright in creative works.
* “ANFASA responds to the SANEF celebratory post” – 20 November
“We represent authors, many of whom write the books and articles that will be legally free to copy when the amendments to the Copyright Act come into effect.
“Unfortunately, there is a fundamental misunderstanding in your post. ‘Fair use’ does not mean ‘use that is fair’. Fair use is a doctrine emanating from US law according to which a written work may be copied (digitally or in print) and altered in a number of ways by a user – all without the author’s permission. If the extent of this use – for instance by a university, a large organisation , or even a multinational tech company – goes too far, it can only be judged fair or unfair by a court of law. But which author can afford to take Google to court?
“Like SANEF, ANFASA supports media freedom, freedom of expression and creativity. The provisions of the Copyright Amendment Bill don’t add to freedom or creativity. They deny authors the freedom to make a living from their work, and they stunt creativity when authors can no longer afford to write for a living and turn to something else.”
The SANEF comment is at:
* ANFASA Press Release: “Authors unite against Copyright Amendment Bill” – 4 December 2018
“Authors have united in their call upon the South African legislature to refrain from adopting the Copyright Amendment Bill to be debated in the National Assembly this week.
“A petition against the adoption of the Bill, which could have devastating consequences for authors and intellectual, artistic and educational production in South Africa, is being presented to the Minister of Trade and Industry today.
“In addition to authors, the petition has been signed by other role players in the book industry and interested parties: booksellers, publishers, freelance workers, readers, literacy organisations, literary agents, academics, copyright scholars and practitioners.
“It has received astounding support. In only one week, more than 3 000 individuals, many of them prominent and influential internationally or locally, and 125 organisations, foundations and businesses signed the petition.”
* “Copyright Amendment Bill: Uncertain future for mission-led publishers at university presses and institutes” – Jeremy Wightman, Publishing Director HSRC Press and chair of PASA Scholarly Publishing Sector Committee & Andrew Joseph, Digital Publisher Wits University Press and member of PASA Legal Affairs Committee
* “OP-ED: Copyright reform: Carrying Fire and Water in the same mouth” – Brian Wafawarowa, Daily Maverick, 27 November 2018
* “Law changes will make writers poorer” – Monica Seeber, 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.”
* “OP-ED: Copyright Amendment Bill will undermine the President’s SONA promises” – Mpuka Radinku, Daily Maverick, 25 February 2019
“…how the Copyright Amendment Bill will undermine President Ramaphosa’s objective of attracting foreign investment.”
* “Copyright Amendment Bill puts the publishing sector, and jobs, at risk.” – Mpuka Radinku, BusinessDay, 7 March 2019
“Besides the potentially devastating impact on the publishing sector, a lack of sufficient copyright protection should alarm everyone.”
* “Copyright Amendment Bill is vital for SA to be part of 21st century” – Carlo Scollo Lavizzari, BusinessDay, 13 March 2019
“Copyright is a form of intellectual property that protects expressions of ideas and benefits those who provide a diversity of cultural resources that are valuable in society.”
* “Free to reproduce, free to exploit: South Africa’s Copyright Amendment Bill” – Keyan G. Tomaselli, The Conversation, 14 March 2019
“The general consensus of the ANFASA symposium is that the proposed bill will hammer one more nail into the coffin of South Africa’s ailing university system.”
* “Fatally flawed copyright bill will favour internet giants” – Sihawukele Ngubane, BusinessDay, 14 March 2019
“Concerns of authors have been ignored in the bid to expand so-called ‘education exceptions’.”
* “An open letter to the Minister of Trade & Industry” – Sunday Times, 17 March 2019
* “Copyright bill will breach global standards and sell creative sector down the river” – Carlo Scollo Lavizzari, Sunday Times, 17 March 2019
* Infographic: “The Copyright Amendment Bill – How the knowledge sector will suffer” – Sunday Times, 17 March 2019
* “Copyright Amendment Bill too broad, says Pasa” – Francesca Villette, Cape Times,
19 March 2019
* “Creatives coalition appeals to DTI to reconsider Copyright Amendment Bill” – Sashnee Moodley, Polity, 20 March 2019
* ANFASA Symposium Report, 19 February 2019
“During the time that the Copyright Amendment Bill was in development, ANFASA fought hard in respect of authors’ rights which were being eroded by provisions in the Bill. That is our job, the promotion and protection of the rights of our constituency: authors. It is also our job to inform our constituency how they will be affected – because there is a great deal of uncertainty about that.
“That is why ANFASA has organised this symposium. The purpose is not to keep fighting against the Bill, although we remain fundamentally opposed to elements of the new copyright regime which, in our view, will cause damage to writing and publishing in South Africa. The purpose of this seminar is to debate and to contribute to an understanding of what will happen next. We have invited as panellists some who share our view and some who don’t. It has never been ANFASA’s way to suppress dissent.”
The report was compiled and summarised from a recording of the event:
* PASA: “Copyright Amendment Bill: Talking Points for Publishers and Authors”, March 2019
“It is imperative that publishers and authors continue to support efforts to call for the Bill to be scrapped and redrafted.
“PASA also calls for authors and publishers to continue discussing with the public key aspects of the Bill that will have a number of detrimental outcomes for them. The attached six ‘talking points’ could help to clarify these issues, noting that these are not the only issues in the Bill that will be problematic for them…
“The Copyright Amendment Bill is detrimental to publishing and authorship in South Africa, and should be rejected. The few benefits introduced by the Bill are outweighed and undermined by its provisions that place constraints on authors and publishers, that allow far more free uses of their works by others, and that fail to support enforcement of their rights.”
The main issues that the literary and publishing sectors have with the Bill can be categorised into six points:
* “Request to deal with incorrect statements made in the dti presentation on 6 March 2019 regarding provisions of the Bill having been ‘cleared’ or ‘verified’ by the Panel of Experts – A letter to Trade and Industry Minister Rob Davies and NCOP committee chair Eddie Makue from Expert Panel member André Myburgh, 14 March 2019
“On 6 March…the dti presented its responses to the public comments that arose from the Select Committee’s call for comments on the Copyright Amendment Bill. As a member of the Panel of Experts appointed by the Portfolio Committee that had submitted a written advice on the Bill in October 2018, I was profoundly disturbed and disappointed by statements made in the dti presentation that the Panel had ‘cleared’ the Bill or certain provisions of it, confirmed by the PowerPoint presentation (slide 24) that the Panel had ‘verified’ certain sections of the Bill in respect of which there had been demands for their withdrawal.
“The purpose of this letter is to respectfully ask the Minister to ensure that these misstatements made on behalf of the dti are corrected on public record at the next meeting of the Select Committee on the Bill, currently scheduled for 20 March 2019, and to respectfully ask the Select Committee to consider the actual responses of the Panel members in its deliberation of the Bill.”
The Performers’ Protection Amendment Bill, 2017
* 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: