Copyright and Performers Protection Amendment Bills adopted by the National Council of Provinces with changes, referred back to the National Assembly for concurrence.
A child born on the day when the first step towards South Africa’s copyright reform started will turn 14 next week – well on her way to finishing high school.
On 17 November 2009, then-President Zuma promised to improve the lot of the cultural industry sector in a speech to performing artists. In addition to undertaking to curb piracy and counterfeits of copyright products, his speech led to the establishment of the Copyright Review Commission and, ultimately, to the introduction to Parliament of the Performers Protection Amendment Bill in 2016 and the Copyright Amendment Bill in 2017.
Yet, nearly 14 years later, members of CCIFSA (Cultural and Creative Industries Federation of South Africa), who were in the audience for President Zuma’s speech, were protesting in the streets against the imminent adoption of Copyright Bill and it’s “fair use” clause by the National Council of Provinces (NCOP). Something happened to the outcomes sought by President Zuma and his audience during the intervening years.
Despite the sentiment across the board that reform is desperately needed, the Bills are expected to have a detrimental impact. Much has been written on the topic, and forests’ worth of paper have gone into making numerous submissions about the Bills over the years, to not much avail.
Protests in the streets notwithstanding, the NCOP adopted the Bills with minor amendments on 26 September 2023. Those amendments are now being considered by the National Assembly for concurrence.
The amendments in the NCOP were to:
- Add “equitable remuneration” as an alternative to “royalties” in the statutory royalty entitlements for authors of literary and artistic works and performers in films, and also to other references to “royalties” in the this change does not resolve stakeholder concerns around the introduction of mandatory and onerous reporting obligations by producers and owners on each and every commercial use of audiovisual works and the disproportionate penalties prescribed for non- compliance.
- Amend the term “performer” to exclude “extras, ancillary participants or incidental participants”. Its purpose was to remove “extras” or performers in audiovisual works without scripted dialogue from the statutory entitlement of performers in audiovisual works for equitable remuneration or a royalty, but it results in the unintended outcome that performers in all works covered by the exclusion will no longer have rights under the Performers’ Protection.
- Correct the exception for disabled persons after direction given by the Constitutional Court in the case of Blind SA v Minister of Trade Industry and Competition.
- Withdraw the new definition of “broadcast” that was inserted in error when the Bill was previously considered by the National Assembly.
- Correct wording in the “parallel importation” clause, although this correction was made to the wrong word (“ownership” instead of “assignment”).
- Change the scope of the legal recognition of technological protection measures (a requirement of the WIPO Internet Treaties).
- Replace the Minister’s power to prescribe “compulsory and standard contractual terms” with “the elements for agreements to be entered into in terms of this Act, to ensure that rights or protections afforded by this Act are duly provided for”.
- Take away the Minister’s power to prescribe royalty rates, tariffs, and percentages of royalties (and equitable remuneration) for distribution by collecting.
- Bring the exception for disabled persons into effect on publication in the Government Gazette of the Amendment Act once it is signed by the President, in order to meet the time limit set by the Constitutional Court in the Blind SA The remaining provisions will come into effect 24 months from date of publication or earlier.
Notable was the absence of amendments to the “fair use” clause or the other, extensive, copyright exceptions.
The Bills will now be considered for concurrency by the National Assembly’s Portfolio Committee, its meeting on this matter having been set for 14 November.
If the National Assembly concurs with the changes, the Bills will go to the President for his assent. With the President having already referred the Bill back to the National Assembly for concerns about their constitutionality in 2020, his options now are either to sign the Bills or to refer them with his remaining concerns to the Constitutional Court.
Bulletin by André Myburgh – 10 November 2023