ANNEX
Comments from the European Commission on the Copyright Amendment Bill of the
Department of Trade & Industry of South Africa
Point 1: (definitions)
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"digital rights system": the purpose of this definition is unknown, since it is not used
later in the text. Its meaning or its possible relations with TPMs are not obvious. Further
clarification from the South African authorities would be needed.
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"orphan work": apart from possible inconsistencies, the definition seems rather too
broad, and it does not reflect the conditions for a work to be declared orphan if the right
holder is not located (for instance, a diligent search – something similar to the diligent search
is mentioned later in the text, but further clarification in the definition itself would be
advisable).
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"reproduction". The modification of the definition of reproduction raises major
concerns. It is too restrictive, since it replaces the existing definition (which is broader) and
only refers to "a copy made of a fixation or audio-visual fixation of a performance".
•
"TPMs". The definition of TPM is linked to "measures […] designed to prevent or
restrict infringement of copyright work". Apart from pure infringements, right holders may
apply TPMs to avoid unauthorised access (for instance, from another territory), which is not
strictly an infringement if carried out by an individual user. These TPMs should also be
granted protection.
Point 2: (Orphan works)
Section 3 (see also comments on Point 24) establishes the perpetual protection of copyright
when it is vested in the State, and relating to orphan works. Once the term of protection of an
orphan work expires, it should become part of the public domain. The perpetual exploitation
of an orphan work by the State is unjustified, in our opinion (for instance, it may affect works
whose rights belonged to EU right holders – once in the public domain, why would the
Republic of South Africa still exploit it as the copyright holder?). The European Commission
suggests that orphan works should fall into the public domain like all other copyright works.
No country in the world has granted perpetual protection to economic copyrights. Only the
moral right is perpetual in certain countries.
Point 6 (7A Resale right):
The European Commission welcomes the future insertion of a resale right in the South
African copyright regime. In doing so, South African authors of original works sold in the EU
will get, according to the Berne Convention, royalties in conformity with the EU Member
State regimes of resale right. The EU authors will enjoy the equivalent right according to the
reciprocity principle of the Berne Convention as regards the resale right. Therefore, the
meaning of article 7A (3) (a) (i) and (b) need some clarification. In effect, a foreign author
enjoys a resale right only if the legislation in the country to which the author belongs so
permits. He does not have to be resident in the country where he claims royalties.
Furthermore, it would be appropriate to explain precisely what "commercial sale" means. In
general, the resale right must apply to all acts, except the first transfer of the work by the
author, of resale involving as sellers, buyers or intermediaries art market professionals, such
as salesrooms, art galleries and, in general, any dealers in works of art.
As far as the protection term is concerned, since the resale right is a copyright, it would be
best to simply provide that the duration of the resale right must be identical to the term of the
copyright in respect of artistic works, including joint, anonymous, pseudonymous or orphan
works.
Point 7 & 8: (the making available rights)
The European Commission welcomes the proposed amendment to Sections 8 and 9, which
would introduce the making available rights for cinematograph films and sound recordings.
Point 9: (licensing & collective management organisations)
Section 9A lays down a very complicated system for the licensing of rights and for the
payment of royalties for the broadcasting of phonograms. It seems to establish an exclusive
right to authorise the broadcasting of phonograms in a way that would oblige broadcasters to
license the rights of every single phonogram they intend to broadcast. We understand that the
references to the "owner of the copyright" in this Section refers to the phonogram producer,
but further clarification would be needed.
Section 9 is related to collective management organisations (preferable to collecting
societies). We welcome any initiative designed to ensure clear rules on the governance,
transparency and equal treatment in the context of collective management organisations. In
Section 9B (1), we believe clarification is needed about the reasons why there should be one
collective management organisation per copyright and per set of rights with regard to all
music rights. This may make the system inefficient and prejudice particularly foreign right-
holders. This could raise problems related to the management of databases and business
efficiency.
Furthermore, the new rules (notably that collective management organisations should also
have to comply with BBEE measures) could impact heavily the position of the foreign right-
holders and the current reciprocal agreements with foreign collective management
organisations.
Point 11: (quotas)
In order to preserve cultural diversity, the Commission is not against the principle of quotas in
the audio-visual sector. However, in Section 10A (1) we find exaggerated provisions related
to the minimum percentage of local content that should be broadcast in the South African
public and private radios and televisions (more than 60% or 80% of the content needs to be
local). This could be counterproductive and very prejudicial to cultural diversity, even though
it is not strictly related to copyright law.
Point 14: (fair use)
Section 12A introduces a kind of fair use provision in South Africa while keeping established
exceptions. The European Commission thinks that the introduction of this new principle,
which constitutes a paradigm shift in South Africa, would be negative for the copyright
regime in South Africa and would not improve it despite this being the main objective of the
reform. Fair use is based on "established" jurisprudence. The lack of tradition and
jurisprudence in South Africa in this regard raises significant concerns. The introduction of
fair use into South African law in parallel with exceptions would result in significant legal
uncertainty and would increase the number of litigations.
There is also a list of factors to be considered in order to determine if certain use is fair or not
(Section 12A.5), but it is not clear whether commercial uses are covered or not, for instance
(Section 12A.6 raises doubts about this). The compliance of these draft provisions with South
Africa's obligation related to the three-step test must be evaluated. Compensation is not
mentioned in the draft. This would need clarification, notably as far as private copying is
concerned.
Section 12A.3 on the use of digitised copyright material in the educational context must be
developed in order to bring more legal certainty.
Section 12A.4 mixes in one and the same article parody, private copy and format-shifting.
This would deserve further clarification.
The purpose of Section 12A.8 is unclear. Is it related to the possibility to circumvent TPMs?
The scope of the exception allowed for by section 12 (15) seems too broad and could
undermine copyright protection in South Africa and foster piracy, without addressing the need
for access to educational material.
Point 22: (the exceptions for archives, libraries, museums, etc.)
Section 19C is not abundantly clear and would need to be improved. For instance, it is not
clear whether online uses are permitted (i.e. does Section 19C.1 (a) apply to online uses or
digital materials when it mentions distribution?) and the distribution right is not defined in the
law. Furthermore, no compensation is set out in the law. This latter point deserves more
discussion.
Point 24: (obligations of broadcasters)
Section 20C.5 deals with obligations of broadcasters but the meaning and purpose of this
provision are unclear as it is apparently a "must" provision.
Point 24: (orphan works)
Section 21 sets out that the State will be the owner of the copyright of orphan works. This
may be a political choice, but further justification and clarification are needed as regards the
successors in title or the exclusive licensees, who are the lawful right-holders of the works as
regards the distribution of royalties. It seems advisable to share them with right holders
(which may finally benefit foreign right-holders). Moreover, a register for orphan works,
accessible outside South Africa, should be put in place in order to ensure that relevant right-
holders may become aware of the exploitation of their orphan works and reappear. In this
sense, if a right-holder reappears and claims his or her rights, they should be given back to
him or her immediately (Section 22A.13 establishes that they "may", instead of "shall" have
their copyright returned).
Point 31: (exceptions in respect of TPM)
Section 28P.1 allows users to circumvent TPMs in order to benefit from an exception or fair
use. This right to circumvent granted to beneficiaries would add legal uncertainty and would
promote the business of devices, products or components for the purpose of enabling or
facilitating the circumvention. Instead, voluntary measures or solutions including agreements
between right-holders and involving the cooperation of right holders should be envisaged (as
is the case in paragraph 2, which applies only when the user is unable to circumvent the TPM
and needs the assistance of the right holders).
Schedule
The "Schedule" establishes two kinds of compulsory licences (to be granted by the
Intellectual Property Tribunal) for the translation and reproduction of works. This should be
clarified by the South African authorities, since these are exclusive rights which should be, as
a matter of principle, authorised by the right holder.