Every golfer has had the experience of duffing a shot – driving the ball straight into a water hazard – and, having incurred a penalty stroke, hitting a perfect drive straight down the middle of the fairway at the second attempt. This has given rise to the golfing adage: Confucius say hit second shot first! In similar vein, Parliament has produced a horrendous piece of copyright legislation, but has now been given a second chance to get it right, without incurring any penalty. Will it take up and optimize this break, that is the question? Time will tell.
THE ESSENCE OF COPYRIGHT
Copyright is a statute-based body of law, which provides creators of written and other works with the power to exercise control over the commercial exploitation of their works. The rationale is to place authors in a position to derive material benefits from the fruits of their labours in creating original works, thus providing them with a means for deriving income and incentivizing them to create more and better works for the benefit of all. In practice this is commonly achieved by enabling authors to charge royalties for the commercial exploitation of their works.
However, this power of authors has the potential to inhibit the general availability of works, which can be contrary to the public good in some circumstances. It is thus necessary to weigh up the private rights of authors (bearing in mind the purpose of copyright) against the public interest. The outcome is that copyright legislation places limitations on the exclusive right of authors in certain defined circumstances in which it is deemed that the public interest outweighs the merits of the right of authors.
This copyright regime is recognized, approved world-wide, and regulated in various international treaties, the most important of which are the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention), a World Intellectual Property Organization (WIPO – an agency of the United Nations) instrument, and the Agreement on Trade-Related Aspects of Intellectual Property Right (TRIPS), an instrument of the World Trade Organization (WTO). South Africa is a party to both these international treaties and is bound by them.
THE COPYRIGHT ACT
The law of copyright in South Africa is regulated by the Copyright Act, 1978. It has been amended substantively nine times since 1978, with the most recent amendment being that of 2002. The Act, which was strongly based on the British Copyright Act of 1956, is in conformity with the Berne Convention (often repeating the Convention’s exact wording) andTRIPS.
The Act was good, sound copyright law at the time, and for several decades thereafter. However, it has now become outdated, particularly in its ability to deal properly with electronic works and digital communications. It has fallen way behind the laws of peer countries like Australia and Canada. It requires substantial judicious amendment, or perhaps even to be replaced in its entirety by a new state of the art Act.
THE COPYRIGHT AMENDMENT
The Department of Trade and Industry (DTI), which administers the law of copyright, perceived the necessity of updating the Copyright Act. A few years ago it produced a draft amending Bill. By virtue of the strong (justified) criticisms it elicited, it was redrafted several times. The impression is gained that the drafting was undertaken by civil servants and/or ivory tower academics who have little conception of applying copyright law in practice or conducting litigation to enforce copyright owners’ rights. They simply have not done time in the copyright trenches!
Despite the DTI’s best efforts the draft Bill remained an abomination. It was poorly drafted, lacked balance, and exhibited a lamentable lack of appreciation of the principles of copyright law and of the basic tenets of legal draftsmanship. When the Bill came before the Parliamentary Portfolio Committee on Trade and Industry for consideration, the committee rightly recognized its poor quality and it decided to redraft the Bill itself. It was a daunting task because something that is fundamentally flawed does not really bear being patched up and repaired.
It is said that a camel is a horse designed by a committee. Alas, the Parliamentary Committee, aiming at a horse, designed a five-legged, clumsy camel, unfit for purpose. While it was an improvement on the abominable beast designed by the DTI, it was far from being an acceptable piece of legislation.
Nonetheless, the draft Bill was passed by Parliament and was submitted to President Ramaphosa for signature in March 2019, whereupon it would become law. Fortunately, President Ramaphosa was alerted to the shortcoming of the Bill, in particular that several of its provisions are contrary to the Constitution, and declined to sign it. In June 2020 he sent the Bill back to Parliament for reconsideration and compliance with the Constitution. The House of Assembly rescinded the Bill on 1 June 2021. The drafting process ought to start afresh and be undertaken by a small working group of true copyright experts, with practical experience, adopting a balanced judicial approach. Care should be taken that the Bill can pass constitutional muster.
EXCEPTIONS TO COPYRIGHT
Both the Berne Convention and TRIPS provide for legitimate exceptions to be made to authors’ exclusive rights. The object of the exercise is to achieve a balance between those rights and with the public interest, which may require ready access to information and knowledge materials. In order to achieve this, the exceptions that they countenance must be subject to the treaties’ so-called “three-step test”, namely, (1) they must cover only certain special cases, (2) they must not conflict with the normal exploitation of the work, and (3) they must not unreasonably prejudice the legitimate interests of the rightsholder. Care must be taken when granting exceptions to the authors’ rights that they are not excessively eroded otherwise there is the risk of killing the goose that lays the golden egg.
The Copyright Act provides for certain exceptions in conformity with the treaties. The ambit of these exceptions in the Act is, however, outdated and no longer keep abreast with modern requirements. There is a need for the range of extensions to be expanded. The Bill seeks to provide for this need. It has, however, exceeded the bounds of reasonableness in doing so. It errs badly in this respect.
Amongst the Bill’s chief shortcomings is the introduction (at the instigation of global American business interests) of its own adaptation of the American principle of “fair use” to the issue of exceptions to the authors’ exclusive rights. This doctrine may be consonant with legal measures and procedures peculiar to American copyright law and practice, but these mores do not find expression in South African copyright law and practice. It is thus not adapted for incorporation into our law. It is an alien noxious weed. Indeed, even in America, serious reservations have been expressed about the desirability and utility of the doctrine.
“Fair use” entails the court being granted a very wide latitude, subject to certain criteria, to determine just about any form of use (or misuse) of a copyright work, on an ad hoc basis, as constituting a permissible and legitimate form of unauthorised use of that work. “Fair use” is virtually what any judge, in his or her wisdom and discretion, decides in a particular instance should not be the preserve of the copyright owner. It places copyright owners at the mercy and whim of individual judges who may, or may not, have any schooling in copyright. The doctrine has the capacity to undermine the very foundations of copyright by seriously watering down the exclusive rights of copyright owners and emasculating them. To make matters worse, a particular “infringement” can only achieve recognition as being “fair use” in a judgment handed down at the very end of a copyright infringement case. Nobody can know in advance whether the act in question will get awarded a free pass! There is no rule book that can be consulted. This is the epitome of uncertainty.
The “fair use” doctrine provides fertile ground for litigation in view of its vagueness and the uncertainty that it creates. This certainly does not serve the public interest in the big picture.
It is extremely doubtful whether the “fair use” doctrine complies with the three-step test and is therefore in compliance with members’ obligations under the Berne Convention and TRIPS. As an aside, there are also other provisions in the Bill that are at odds with the treaties (as pointed out by President Ramaphosa) and are thus beyond the pale.
By contrast with the alien doctrine of “fair use,” our Copyright Act deploys so- called “fair dealing” with a work in creating exceptions in certain carefully circumscribed and special cases set forth in detail in the legislation. These are cases where the legislature considered that works should be available for use outside the constraints of copyright restrictions in the public interest. These exceptions enjoy the considered approval of the lawmakers after canvassing public opinion. The “fair dealing” approach is inspired by the international three-step test and is followed by the vast majority of countries. It has the merit of relative legal certainty with its measures enjoying public scrutiny and approval, as opposed to the somewhat arbitrary judge-made ad hoc discretionary determinations which characterize the “fair use” doctrine.
Apart from the iniquities of the adoption of the generalized “fair use” doctrine, the Bill also goes much too far in granting a range of certain additional specific exceptions. The combination cooks the golden goose. The balance between the rights of authors/copyright owners, and the public interest, is tipped excessively against the former. The Bill can by no means qualify as being friendly to creatives, one of its proclaimed objectives. Using the stealth of the exclusions blade, it stabs them in the back. It is duplicitous.
ADDITIONAL FLAWS
Apart from the major flaw discussed above, there are numerous instances in the Bill of impracticalities (which simply will not, and cannot, work in practice), confused and wrong terminology (which will create uncertainty – a serious shortcoming in legislation), anomalies and anachronisms. It contains provisions that are at variance with the fundamental principles of copyright law. It evidences a lack of knowledge of our current law of copyright and proceeds on the basis of incorrect premises resulting in false conclusions. It is simply unacceptable as a piece of legislation and should not be perpetuated.
Space does not allow the exposition of a full catalogue of the Bill’s shortcomings. A few relatively easily-explainable examples will suffice for present purposes.
TRADITIONAL/INDIGENOUS KNOWLEDGE
After many years of intense debate and controversy, in 2013 Parliament passed an even worse piece of intellectual property legislation cooked up by the DTI, namely the Intellectual Property Laws Amendment Act (IPLAA). The main thrust of this Act was to introduce protection for so-called “traditional knowledge” or “indigenous knowledge” as a species of copyright work. This makes no sense and is completely unworkable. Moreover, it undermines longstanding principles of copyright law that operate throughout the world. As happened with the current Amendment Bill, the DTI and Parliament turned a deaf ear to informed opinion that was very critical. The alternative rational viewpoint was that “traditional knowledge” should be protected as a new sui generis form of intellectual property with legislation custom designed to bring this about.
Happily, although the Act completed the legislative process, it has never been brought into operation, notwithstanding the elapse of eight years.
In the meantime, the Department of Science and Technology produced its own Bill protecting “indigenous knowledge” encompassing sui generis protection for this species of work. This has been passed by Parliament as the Protection, Development and Management of Indigenous Knowledge Act, 2019. This Act covers the same ground as the DTI Act, but rather on a rational and more workable basis. The two different systems could lead to different persons being awarded the ownership of the same work! It defies logic and good practice that the two Acts can co-exist side by side. Common sense and sanity dictate that one of them must fall by the wayside and the indicators point squarely at the DTI Act. In other words it is, thankfully, very likely that the IPLAA will never be brought into operation and be placed on the statute book.
Against this background, the Copyright Amendment Bill presupposes the IPLAA is already in force. It refers to issues and institutions in the IPLAA which do not exist in our copyright law. It is even numbered to take account of non-existent sections which have never made it into the Copyright Act. This will leave huge unintelligible gaps in the amended Copyright Act’s numberings system. It goes without saying that changes cannot be made in the Copyright Act by an Act that has never been brought into operation. This will make a terrible mess of the Copyright Act if the Bill becomes law. The vagaries brought about in this manner cannot fail to cause uncertainty and confusion.
“AUDIO VISUAL WORKS”
One of the categories of works protected under the Copyright Act is “cinematograph film”. This category of work is basically defined to mean material comprising images that when used in connection with a device causes a moving picture to be seen; it includes the sounds associated with the images. This category of work is specified in the Berne Convention and has been part of our copyright law since 1916. The term has been interpreted in case law to cover video games and micro-chips carrying images. This is perfectly correct in view of the wide and flexible definition contained in the Act. The term has been part of our copyright law for more than a century and has a well established meaning, causing no difficulty. There is absolutely no reason to change it. If it is not broken don’t fix it!
While retaining this category of work in the Act, the Bill introduces a new concept, namely an “audio visual work”. It defines this term to mean essentially the same thing as a “cinematograph film”. It then goes on to sometimes leave the term “cinematograph film” intact in the Copyright Act, sometimes to replace it with the term “audio visual work”, and then to use the new term in the context of cinematograph film in the new sections which it seeks to insert in the Act. It even defines the term to include a “cinematograph film”.
Inevitably it will be questioned: when is material for producing moving pictures an “audio visual work” and when is it a “cinematograph film”? Both terms mean the same thing. But since the former, as the wider term, includes the latter, it seems that it must be contemplated that there are some works that fall within the former term, but not in the latter. When will what was formerly understood to be a “cinematograph film” (bearing in mind the term’s very wide meaning) now remain such, and when will it be an “audio visual work”? Why does it matter? This raises the pertinent question of why use two different terms to describe the same thing? The principles of the interpretation of statutes require different meanings to be ascribed to different words or terms. This cannot fail to cause confusion and uncertainty, and serves no useful purpose. It should be eradicated.
A possible clue to the answer to this question lies in the fact that “audio visual work” is the American version of what we know as a “cinematograph film.” This points once again to the unholy American business influence being brought to bear on our copyright law in the Bill.
“VISUAL ARTISTIC WORKS”
Similarly, “artistic work” is one of the foremost categories of work protected in the Act. This term has been used internationally in copyright law for the past century. The term is defined in the Act to denote essentially three sub-species of work, namely, paintings, drawings (including technical drawings and plans), sculptures and the like, and photographs; works of architecture (plans and buildings); and works of craftmanship (including items such as wood carvings, embroideries, tapestries, bead work, and even prototypes of industrial articles). All these types of work must exist in a material form to enjoy copyright.
The Bill seeks to introduce the concept of a “visual artistic work”. This suggests that there must also be some form of non-visual artistic work which exists in a material form. The concept of an invisible artistic work is a novel one, indeed! In an effort to dispel natural incredulity, the Bill defines the term to mean only those species of artistic work which fall into the first mentioned category of the definition, viz. drawings, paintings etc. Works of architecture and craftmanship are the mysterious invisible artistic works.
The Bill applies new provisions, dealing with a resale royalty in respect of the original or first embodiments of certain works, to “visual artistic works,” but not to artistic works in general. In fact, in so doing it confuses the copyright in these types of works with the physical embodiments of the subject matter of the copyright. That is by the by, but why these provisions should apply to paintings, drawings, and sculptures, but not to wood or ivory carvings, tapestries and embroideries, is not at all apparent. They would all seem to have an intrinsic market value (which is what the resale royalty is all about). On the other hand, it is difficult to see what intrinsic market value the sketch of a standard design of a motor car exhaust pipe, a species falling into the first category and thus constituting a “visual artistic work” by definition, can possibly have. Why such a drawing should be privileged over a beautiful ivory carving defies understanding. The fact of the matter is that this whole concept has not been properly thought through, taking the realities of the situation into consideration. It is an anachronism.
COPYRIGHT TRIBUNAL
The Bill establishes a Copyright Tribunal which fulfills a quasi-judicial function in respect of matters relating to copyright. This measure has a degree of merit as legal practitioners have long been campaigning for the establishment of a specialist intellectual property court in view of the complex and technical nature of disputes in this field. However the particular version of this institution dreamed up in the Bill leaves a lot to be desired. It is neither fish nor fowl. It is not a court as contemplated in the High Court legislation, nor is it a typical administrative tribunal.
The Tribunal’s powers and the relief that it can grant are set forth in the Bill. It is unclear whether it can adjudicate copyright infringement matters but it seems on balance that it has no such power. At least ninety percent of all copyright cases deal with infringements of copyright. This is where a specialist court is most needed.
In terms of sections 23 and 24 of the Copyright Act it is clear that the court (in practice the High Court) has exclusive jurisdiction to determine copyright infringement matters. In particular, only the court can determine and award damages. Section 29H to be inserted in the Act, which details the Tribunal’s powers, is silent on the Tribunal being able to make such awards. This whole issue is left in the air in the Bill.
The most serious aspect of the Copyright Tribunal provisions is the stipulation in section 29E (this strange numbering is due to the non-existent sections of the Act stemming from IPLAA being catered for), to be inserted in the Act by the Bill. It provides in paragraph (b) that the Tribunal must specifically conduct its hearing in an inquisitorial manner. This is a far-reaching and unprecedented departure from long-standing South African dispute procedures. No justification can be seen for this radical, revolutionary departure from the established norm. This form of procedure is particularly unsuitable for copyright disputes and is absolutely the last form of procedure that should be used for such disputes.
The standard form of procedure universally used in at least all English-speaking countries, including South Africa, is the adversarial procedure. This procedure involves the protagonist in a dispute, i.e. the plaintiff or the applicant, presenting its version of the facts and applicable law to the judge or tribunal, followed by the other party, i.e. the defendant or the respondent, presenting its version of the facts and the law. The presiding judge or tribunal, having heard the arguments of both parties, then makes his or her decision. Both parties and/or their legal advisers will have researched their cases thoroughly and consulted with experts where necessary, and will have presented their cases in an organized manner. The hearing officer will have the benefit of all this preparation being laid out before him of her. He of she will have been apprised of all the relevant issues and will be well equipped to render a balanced decision. Where there is any doubt in his or her mind, the presiding officer can put questions to the parties or witnesses to clarify the matter. The system generally functions very well and there has been little or no discourse about significantly changing it. Our judges and legal practitioners are steeped in this tradition.
By contrast, the inquisitorial system (which is being mandated by the Bill) works very differently. The parties do not in turn put their cases in person or through legal representatives to the judge or tribunal. Instead the presiding officer acts as an inquisitor, or quiz master, and by means of questioning the parties must extract the relevant facts and issues from the parties who are before him. The presiding officer is essentially required to do his or her own homework on the subject matter of the disputes and the applicable law. He or she does not have the benefit of hearing arguments of the parties presenting their cases. This form of procedure places a far greater onus on the presiding officer (and access to greater resources) to fathom the essentials of the merits of the parties cases. This in turn means that the parties are to a greater extent reliant on efficacy of the presiding officer to assess and weigh up the merits of their respective cases.
Our courts have in the past described copyright law as a technical subject requiring more than normal insight and understanding. Legal practitioners who are specialists in the field are of great assistance to judges in understanding the essences of the disputes. This often entails providing detailed expositions of the nature of the businesses involved and the works in issue, for instance complex computer programs and how they are written and adapted. A presiding officer cannot be expected to acquire this knowledge on his or her own accord and needs to carefully and painstakingly instructed and assisted by the parties, and in particular their legal advisers. In these circumstances the inquisitorial procedure is particularly inapposite.
In the premises it is foolhardy to make using the inquisitorial system compulsory for hearing copyright disputes. No justification or ground for this astonishing provision has been advanced or is apparent. Once again, this matter has not been properly thought through by the drafters of the Bill, who clearly have no practical experience of conducting copyright disputes and litigation.
PARTING SHOT
Parliament played a terrible opening shot in embarking down its copyright amendment course. It now has a golden opportunity to redeem itself in playing its second shot. In gathering itself to do so, it should eschew the bad advice inspired by foreign (American) interests it relied upon for its first shot, and instead embrace the good expert local advice born of practical experience of local conditions available to it. This will enable it to land the second shot squarely in the middle of the fairway and avoid the tangled brambles of the rough.
Would that Parliament had heeded Confucius’ wise counsel in the first place!
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