So called “state capture” is a concept which currently dominates current public discourse. It represents the usurpation and domination of the powers of the state by the Zuma/Gupta alliance. State capture, albeit in a different form, has occurred in the Department of Trade and Industry (DTI) in regard to its custodianship of intellectual property.
Beginning in the late nineteen nineties, with the advent to power in Trade and Industry of Minster Alex Erwin, a “third force” has assumed control of this important area of the law with untoward consequences to its well-being. The third force has sought to undermine and emasculate the well-established functional legal regime, particularly with respect to the law of copyright, which had hitherto operated.
Intellectual property law seeks to provide an incentive to creative persons to use their talents to create new works, inventions and the like by granting the exclusive right, for a limited period, to use their outputs by commercialising them to obtain due remuneration for their creative efforts; this exclusive right is granted on condition that, after the elapse of a specific period, the output will fall into the public domain and be free for use by all. In this way the creative efforts of the individual are harnessed to the public benefit. It is this fundamental principle that has come under attack by the DTI, the government agency which ought to be nurturing it.
The intellectual property right in respected throughout the world. It is specifically enshrined in the Universal Declaration of Human Rights and in various international treaties of which South Africa is a member. The Constitutional Court has recognised that it is protected under Section 25 of the Constitution, the so-called “Property Clause”, which is currently also the subject of considerable controversy.
Internationally there are those who are vehemently opposed to the basic precept of intellectual property and seek to destroy it. They elect not to challenge intellectual property head on, but rather to undermine it from within and effectively bring about its demise in this manner. In broad terms they can be referred to as the “Copyleft” school or conspiracy. The Copyleftists go about their business in various manners but the common theme or approach is to water down or neutralise the signature exclusive rights to such an extent that they become worthless and for all practical purposes cease to exist, thus rendering them nugatory.
The government is currently bulldozing an amendment to the Copyright Act, 1978, through Parliament. It can in all fairness be described as a Copyleft amendment. While purporting to grant various new rights to copyright owners, which on the surface may appear to be beneficial, it introduces such extremely wide-ranging exceptions to the exclusive rights of the copyright owner that those rights are seriously undermined in the classic Copyleft manner. It is a case of “The Lord giveth and The Lord taketh away” (Old Testament, Job I:21).
This amendment has been around three years in the making. It was originally drafted by the third force within the DTI. It was drafted and published without any reference to the Minister’s mandatory statutory Advisory Committee, which is treated as being decorative. The public was given an inordinately short period to comment on it. The draftsmanship and the muddled thinking were so appalling that the draft Bill was barely comprehensible.
It must be said that an eminent judge of the Supreme Court once described copyright as a technical subject, which it most certainly is, to such an extent that it is properly understood by only a relatively small number of jurists. The draftsman of the Bill by no means fell into that group.
In written comments submitted to the DTI and at a public workshop the draft Bill was so severely castigated that it was referred to an “expert committee” to be overhauled. The sentiment expressed by the plethora of critics was that it was so fundamentally flawed that it was incapable of being repaired and should be re-drafted from scratch. It was placed before the statutory Advisory Committee. It is not known what recommendations, if any, the Advisory Committee made, but the Bill reappeared substantially unchanged. This precedent of disregarding comments was to be perpetuated in the future. The Bill was submitted to the Trade and Industry’s Portfolio Committee of Parliament in this woeful form.
To its credit, the Portfolio Committee recognised its abysmal quality, and after expressing its disdain, itself set about patching up the Bill. With all due respect to the members of the Portfolio Committee, few, if any, of whom have any legal knowledge, let alone any expert knowledge of copyright, they were ill-equipped for the task (as were Parliament’s legal advisers whose assistance was enlisted). Their product, although marginally better than the DTI’s attempt, simply did not pass muster.
As mentioned, copyright is a technical area of the law. The sensible way of going about amending the Copyright Act would be for the DTI to develop a clear description of exactly what balanced changes it wishes to make to the Copyright Act and then to appoint and mandate a truly expert committee to draft the amendment. Realistically this committee should be composed of specialist copyright legal practitioners and specialist academics well versed in the practical implementation of the law (not mere ivory tower theorists). Such people are available and willing to accomplish the task.
After the Portfolio Committee’s version was published for public notice and received widespread scathingly critical comment, it too was referred to a “panel of experts.” The prime mover within the panel is a celebrated Copyleftist. The report submitted to the Portfolio Committee (which was astonishingly kept under wraps) doubtless told the Committee largely what it wanted to hear. Yet another version of the Bill saw the light of day. The public was given hopelessly inadequate time to comment on it. The Bill is now on its way through Parliament for adoption.
The Bill before Parliament is an abomination. It is ideologically skewed and fundamentally flawed in technical and other respects. Its adoption into law will do untold damage to our law of copyright. It has been correctly described by an eminent commentator as befitting a banana republic. It is a travesty that such a defective Bill, with mere lip service having been paid to proper consultation, should be placed on the statute book.
The supreme irony is that both the Minister and the Chairperson of the Portfolio Committee hypocritcally publicly avow that they are ardent champions of intellectual property and extol its virtues. Words come easily. On the evidence they flatter to deceive.
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