help to deliver the 4th Industrial Revolution landscape and business frameworks that are critical to South
Africa’s future prosperity. The President’s comments at Davos show that he embraces the potential of the
creative industry as a key component in that prosperity. Getting there will require a sound foundation for
the country’s own artists, creators and rightholders (and their families and beneficiaries, after their death)
to make and realize recognizable benefit.
Why the Current Proposals Fall Short
As drafted, the proposals will weaken copyright in South Africa. That will make it less attractive for both
local and international producers to invest in local production and global distribution of high-end films
and TV series. They will also put South African creators, performers and innovators at a disadvantage
when compared to their counterparts in other places where the regulatory frameworks protect individual
artists, creators and companies as well as the business of the sectors.
The Bills are not compatible with the WIPO internet treaties to which South Africa intends to accede.
reportedly raised many treaty violation
concerns with the Technical Panel of Experts. One core concern is that many of the provisions in the
Copyright Amendment Bill simply do not implement the minimum standard of protection required by
treaty obligations. We urge that the Government make the necessary changes now to comply with the
treaties. While the draft language is being reviewed and revised, we would encourage using this
opportunity to address also the plethora of other concerns about the two Bills.
We are member of and support the concerns expressed by The International Federation of Film Producers
Associations (FIAPF) on various previous formal occasions and have shared them with the Committee
Chairs (letter attached) and with appropriate EU and US authorities. We mention these actions to confirm
that we have engaged in good faith, albeit unsuccessfully, throughout the process.
Without going into details, we want to highlight the following particularly urgent concerns:
x
Severe interference with contractual freedom (Sections 8A(5)(b) and 39B CAB and Section 8D
PPAB)
: The rule that key content of contracts may be largely determined by a Minister will
constrain authors and performers in negotiating their contracts. This leads to heightened
investors’ anxiety as producers will not have the freedom to construct contracts in accordance
with the will of the concerned parties – and it also concerns South African artists, creators and
innovators who cannot be certain that a Minister, however well intentioned, would have
sufficient knowledge to prescribe key components of contracts.
x
Challenges to unification of rights (Sections 5(3)(2); 22(a)(1); 22(b)(3), 23(c)(8) CAB)
: Films and
other audio-visual content, like other creative content, require that the rights are unified in the
producer. For example, for a feature film, the rights in the script, the costume design, the set
design, the cinematography, etc. included in that film, are all unified in the producer. This
unification of rights with the film producer is the only approach that has proved to provide legal
and business certainty in the development, financing and production of a film project - as well as
the subsequent exploitation of films and audio-visual content, including catalogue titles. The
current draft bill is thus incompatible with the core business model of our sector.
x
Reversion of rights (Section 22(b)(3) CAB)
: the limitation on the term of assignments for literary
or musical works appear to be absolute; it is not even qualified by, for example, a proviso that
reversion would only take place after 25 years in the event of a total failure to exercise the
assigned rights. The consequence of this would be that the inability to agree a renewed
assignment with just one party (creative content such as movies comprises many contributions of
vastly varying degrees), would mean the work in question could no longer be exploited and
revenues from it would cease automatically for all parties. This would risk serious harm to the
South African film industry and performers, because a major incentive for the industry to invest
in South Africa would be removed through the effective halving of the term of protection from 50
years to 25 years.
x
Overbroad copyright exceptions violating international treaty norms (Sections 12 and 19 CAB
and Section 5 PPAB)
: South Africa is not well served by adopting a fair use model on top of a closed
list of (expanded) exceptions. The proposed “hybrid” system broadens some exceptions to the
point of treaty violation in that exceptions do not pertain to a ‘certain special case’ as required by
both the Berne Convention and TRIPS. The proposed approach will lead to uncertain,
unremunerated and unauthorised use - and will effectively expropriate the property of creators
and investors. South Africa will lose potential to develop the next generation of creators and will
fail in its objectives to support the current generation.
x
Constitutional issues: Retrospective provisions, new criminal sanctions, limitations on the
freedom of contract and exceptions taking away property rights all raise doubts whether the Bills
pass muster under the Constitution.
o Particularly, retrospective application will nullify existing contracts. Under the South
African Constitution, these contracts are binding based on the doctrine of
pacta sund
servanda, a constitutionally recognized principle of respecting the sanctity of contracts.
o Procedurally, the Bills have likely been mis-classified as not requiring full scrutiny from
the NCOP – and therefore not candidates for outright rejection or proper hearings and
discussion in individual provinces.
x
Technological protection measures (Section 28P CAB and Section 8F PPAB)
: As discussed above,
the bills are not compatible with the very Treaties South Africa intends to join.
o One problematic example arises from the definitions of ‘technological protection
measures’ and ‘technological protection measure circumvention device’, which are
difficult to reconcile with the WIPO treaties.
o Similarly, the bills do not apply the rights of interactive communication to the public,
which must be granted as exclusive rights.
o The proposed exceptions to the reproduction right do not pass muster under the Berne
Convention’s three-step-test, as they will seriously conflict with normal exploitation of
works, notably for the educational market.
x
Vagueness: Several sections of the proposed language in the Bills are confusing and vague –
raising questions about interpretation and how or if they would work in practice.
x
National Treatment: We question whether applying ‘National Treatment’ under international
treaties obligations was considered when drafting many of the sections in the bills, especially
those relating to the unwaivable right to a royalty for authors and performers.
In summary, there are serious questions about legal certainty, practicality, constitutionality and
international treaty compliance. The Bills as proposed currently have not been subject to the requisite
formal impact assessments, which raises the probability of harm.
We support suspending the progress of the Bills, to draft them again, classify them accurately (as a
Section 76 bill) and subject the bills to the proper impact assessment process (including treaty
compliance) before considering them again formally for signature and implementation.
As we could not raise all concerns in this limited consultation, we welcome an opportunity to present our
specific concerns in person and remain to your disposal in case of any questions.