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SG17-0873
Source Language: English
Published on: 23/06/2017
CISAC comments on 2017 South Africa Copyright
Amendment Bill
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CISAC comments on 2017 South Africa Copyright amendment bill
1. Executive summary
The International Confederation of Societies of Authors and Composer (CISAC) thanks the Portfolio
Committee on Trade and Industry of the Parliament of the South African Republic for the opportunity to
provide written comments on the 2017 Copyright Amendment Bill (the “Bill”).
CISAC welcomes any initiative intending to implement a more effective, efficient and adaptable copyright
system if it is respectful of creators’ rights. We are writing to you to express our concerns with some of the
copyright recommendations in the Bill that are out of step with international law and practice, which will
have a deeply detrimental impact on creators by jeopardising their ability to continue making a living from
their creative works.
First of all, we would like to remind the Committee that cultural and creative industries fuel the economy as
a whole. A recent study commissioned by CISAC and carried out by Ernst & Young1 shows that the cultural
and creative industries generate US$2.250 billion in revenue and 29.5 million jobs worldwide. They are a
main driver of the online economy. According to a 2014 CISAC Report2, the breakdown of the creative
economy’s contribution to national GDP of South Africa is 4.11%. These studies establish that copyright sits
at the heart of an innovative and modern economy. It provides sufficient flexibility in response to change,
particularly with the challenges brought by the transition to a digital economy.
After reviewing the Bill, the following points contain the most important issues that, if unchanged, would be
detrimental for author’s rights and are without any proper justification within the international regulatory
framework:
1. Provisions that fix the term of validity of the copyright assignment should not apply in respect of
assignments between rights holders and accredited collective societies that permit the reversion of
copyright to rights holders at the termination of membership (Section 21(b).
2. In the provisions contained in Sections 6, 7, 8 and 9, the role of various parties in the copyright value
chain should be conveniently rectified in order to exclude some categories (“users, producers,
community trusts”) from being entitled to sharing on a royalty.
3. The right of communication to the public should be reformulated based on the definition laid out in
international treaties (Section 7(dA).
4. The definition of orphan works should include the requirement of a diligent search before a work can
be considered to be as such (Section 1(f).
5. Usage information in respect of copyright works is fundamental to ensure that royalties are fairly
distributed among rights holders. Legislation should be amended to compel users to submit music
usage reports (Section 22(D)(2).
6. Provisions that attribute to the “State, international or local organisations” the ownership of works
made by or under the direction or control of such entities should be limited to a closed list of specific
category of works. Furthermore, the inclusion of any “local organisation” would have a very dire
effect on the livelihoods of rights holders and should be deleted (Section 5(2).
7. CISAC encourages the introduction of a private copying levy to ensure that copyright holders are duly
compensated for acts of copying that are done by individual persons and for private use.
Finally, in light of the reporting requirement for collecting societies provided for in Sections 22D and 22E of
the Bill, we would like to provide the Committee and the Parliament with some insights related to the code
of conduct for collective management societies. Good governance and best practices in collective
management are among the core activities of CISAC. Since 2008, CISAC has implemented a sophisticated
system of Professional Rules and Binding Resolutions (“the Rules”) that set the highest standards of
professionalism in collective rights management activities.
1 “The first global map of cultural and creative industries”, EY, December 2015
, http://www.worldcreative.org
2 “The creative industries and the BRICS”, CISAC,
2014, http://www.cisac.org/Cisac-University/Library/Studies-Guides
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CISAC comments on 2017 South Africa Copyright amendment bill
These Rules, adopted voluntarily by our members, treat various issues including, without limitation,
membership, corporate governance, documentation, licensing, collection, distribution, complaints and
dispute resolution. The Rules also include a compliance review process, which reflects CISAC’s ability and
willingness to hold its members accountable to the highest standards of professional conduct and reinforce
the legitimacy of collective management of rights. We would like to underline that the South African
collective management societies who are members of CISAC already respect, to a large extent, the thresholds
set by these Rules.
2. CISAC’s comments
CISAC, the International Confederation of Societies of Authors and Composers, is a non-profit non-
governmental organization, composed of 239 authors’ collective management societies from 121 countries
across the world. SAMRO (Southern Africa Music Right Organisation), DALRO (Dramatic, Literary and Artistic
Right Organisation) and CAPASSO (Composers, Authors and Publishers Organisation) are CISAC member
organisations that administer rights on behalf of creators in South Africa.
Through its membership, CISAC represents over 4 million authors, scriptwriters, authors, painters,
composers, photographers and publishers. These creators are drawn from a wide range of artistic fields,
including music, literature, drama, graphic, photographic and audio-visual.
CISAC’s goal is to promote the interests of its members by strengthening the development of the
international network of collective management organisations. As the umbrella organisation for authors’
societies, CISAC fosters a global network of collective management and promotes good governance,
transparency and best practices among its members. As representatives of authors and their collective
management organisations, our priority is to ensure that an appropriate legal framework is in place to allow
them to protect their copyrighted works, collect royalties from users and make a livelihood from their
creations. As such, on-going reform projects within the regions where our members operate are of great
interest to us.
Our main concerns with the amendments proposed in the 2017 Copyright Amendment Bill are set forth
below.
2.1. Reversionary provisions should not apply to assignments
between rights holders and accredited authors’ societies
The Bill provides in Section 21(b) that “assignment of copyright shall be valid for a period of 25 years from
the date of agreement of such assignment”.
CISAC points out that assignments between rights holders and accredited authors’ societies usually permit
the reversion of copyright to rights holders at the termination of the membership. Thus, it would be
burdensome for both rights holders and authors’ societies to process the “renewals” of thousands of
assignments when rights holders can, at any stage, terminate their membership and have their rights revert
to them. For this reason, CISAC proposes to introduce an exception in this regard and that such assignments
should not be subject to any term of validity.
2.2. Role of various parties in copyright value chain should be
conveniently rectified
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CISAC comments on 2017 South Africa Copyright amendment bill
The proposed amendments contained in Sections 6, 7, 8 and 9B display a lack of understanding of the parties
that are involved in the copyright chain, where for instance, performers and users are included as being
entitled to sharing a royalty in these sections, which deal with authors’ rights. Similarly, the proposed section
22C(3)(c) of the Bill provides that royalties collected by collective societies shall be distributed to “users,
performers, owners, producers, authors, community trusts or collecting societies”. CISAC urges deleting the
reference to “users, producers, community trusts and collecting societies” in those sections and to maintain
the reference to “authors” and “copyright owners”.
2.3. Right of communication to the public should be reformulated
according to definitions laid out in international treaties
CISAC welcomes the recognition of the right of communication to the public in the Bill and its extension to
the “making available right” in Section 7(dA). This right is fundamental for creators in today’s digital world as
it allows them to control interactive dissemination of their works over the Internet. It forms the basis for the
licensing of online services and for the development of the legitimate online market for the delivery of
copyright content.
Nevertheless, the inclusion of the phrases “by means of internet access” and “whether interactively and non-
interactively” in the Bill does not add anything of significance to the Bill’s definition, nor does the omission
of the phrases detract from its efficacy. In order to ensure that the right recognised to authors in the Bill is in
line with other countries’ laws, based on the international copyright treaties, we suggest that the BIll use the
terminology of the 1996 WIPO Copyright Treaty, and that the right is defined as follows in article 8(1) of the
Bill:
(…)
(dA)) communicating the work to the public, by wire or wireless means, including the making available to the
public of their works in such a way that members of the public may access these works from a place and at a
time individually chosen by them”.
2.4. Definition of orphan works should include the requirement of a
diligent search The revised definition of “orphan works” has removed the requirement of diligent search before a work can
be considered as orphan work. This means that when none of the rights holders in a work is identified, or
even if one or more of them is identified but cannot be located, then such a work would be considered as an
“orphan work” and consequently would be administered by the Intellectual Property Commission.
Such approach would be detrimental to rights holders taking into account that, as a general rule, a large
amount of information concerning unidentified works is likely be traced after a diligent search conducted by
consulting the appropriate sources.
We make reference to the solution adopted by the European Union in the Directive 2012/28/EU on certain
permitted uses of orphan works. Article 3 of the Directive lays down the general principle that before a work
can be considered as orphan work, “a diligent search shall be carried out in good faith in respect of each work
or other protected subject-matter”. Furthermore, the Directive requires that any information related to such
diligent search shall be recorded in a single publicly accessible online database established and managed by
the EU Office for Harmonization in the Internal Market.
In light of these considerations, CISAC urges the Committee and the Parliament to include the requirement
of a diligent search in good faith in the definition of orphan works. Such search should be carried out by
consulting the appropriate sources for the category of works in question.
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CISAC comments on 2017 South Africa Copyright amendment bill
2.5. Users should be compelled to provide usage reports Proposed Section 22(D)(2) of the previous Bill provided that royalties distributed to the authors of rights must
be distributed in proportion to the actual usage of their works, and this provision has been unchanged under
the current Bill. CISAC supports this provision and urges that the legislation be amended to compel all users
to submit usage reports and to subscribe to monitoring services that would provide complete accurate usage
data to authors’ societies.
At this respect, we point out that in the European Union, the Directive 2014/26/EU on Collective Rights
Management3 introduces specific duties for information for users regarding works usage from repertoires of
collective management societies. Article 13 of the Directive establishes that “users shall provide CMOs,
within an agreed upon, or pre-established time, and in an agreed upon or pre-established format (using as
far as possible, voluntary industry standards) with relevant information at their disposal on the use of the
rights represented by the collective management organisation as is necessary for the collection of rights
revenue and for the distribution and payment of amounts due to rightholders”. The information should be
provided as best as possible in accordance with voluntary industry standards. Furthermore, according to
Article 17, the deadline to provide information must be reconcilable with the distribution deadline of CMOs.
2.6. Provisions that attribute ownership of works funded by such
entities to “State, international or local organisations” should be
rectified
The proposed amendment to Section 5(2) of the Act provide that the copyright in any work funded by or
made by or under the direction or control of the State or an international organisation or local organisations
shall belong to the state or the organisation in question. Currently, Section 21(1)(c) limits the scope of this
provision to certain categories of works (e.g. photograph, painting, cinematographic film and sound
recording) made under commission.
The effect of the proposed amendment is to extend the automatic transfer of copyright from authors to the
State, international organisations or local organisations, regardless of the type of the work, every time such
work is funded or made under the direction of such organisations. It would thus no longer be a requirement
that, regarding e.g. to literary and musical works, copyright can only be transferred through a proper, written
assignment.
Furthermore, CISAC is concerned that under the proposed amendment this automatic transfer of copyright
would include the works funded by (or made under the control of) “local organisations”. The scope of the
expression “local organisations” was not clarified and can be interpreted to include many entities. Such
entities would be assigned ownership of copyright not only where the works are specifically assigned to them,
or if they were created during the course of employment by a person employed by such organisation as
referred to in the Copyright Act, but simply if the making of the work is funded by them.
Both provisions would have a very dire effect on creators, who are reliant on the royalty income derived from
the use of their works. CISAC reminds that, without prejudice to the specificities of the rules on ownership
of commissioned works, one of the basic principles relating to copyright ownership is that the author as the
creator of the work is the owner of copyright. In light of these considerations, CISAC urges the Committee
and the Parliament to remove the proposed amendments to Section 5(2) of the Act.
2.7. A private copy levy mechanism should be implemented
3 Directive 2014/26/EU on Collective Management of Copyright and Related Rights and Multi-territorial Licensing of Rights in Musical
Works for Online Uses in the Internal Market
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CISAC comments on 2017 South Africa Copyright amendment bill
CISAC would like to emphasise the importance of introducing a private copying levy to ensure that copyright
holders are duly compensated for acts of copying that are done by individual persons and for private use. A
private copying levy system is currently the only efficient mechanism that allows rights holders to be
compensated for the limitation of their exclusive right of authorising the reproduction of their works.
CISAC encourages the Committee and the Parliament to adopt a private copying levy system where importers
and manufacturers are required to pay a levy on recording equipment and/or media used by individuals for
their private use to a collective management organisation in charge of the collection and distribution of this
remuneration. In this system, the levy is generally included in the selling price of the products. The funds
collected could generally be redistributed to creators and thus contribute to the creative process.
These provisions would harmonise South Africa’s legislation with accepted international standards. In
absence of provisions as previously described, CISAC is gravely concerned that article 12A(j) would open the
way for infringing commercial use of copyrighted works.
3. Importance of ratifying World Copyright Treaty
As a general comment, CISAC strongly encourages the ratification of the WIPO Copyright Treaty (WCT) by the
South African Government. CISAC would also like to highlight article 46 5(f) of the Trade, Development and
Cooperation agreement between the EU and South Africa, which acknowledges the importance of the WCT.
Ratification of the WCT would strengthen many provisions required for the efficient functioning of the South
African copyright system in a rapidly changing global creative economy. There is an urgent need to address
licensing in the digital environment and the right of communication to the public, particularly to ensure
adequate licensing for digital music delivery and efficient collection and distribution of royalties to rights
holders.
4. Conclusion
CISAC thanks the Portfolio Committee on Trade and Industry of the Parliament of the South African Republic
for taking its comments into consideration. Through CISAC’s representation of creators and rights owners,
we believe in the value of strong copyright systems that incentivise creativity. We remain at your disposal
should you need any further information or clarification on the aforementioned considerations.
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