In a world where intellectual property rights are trying to claw at the face of digitisation, amending our copyright acts is not only necessary but essential. The problem comes in with the public and freedom of education, and deciding how we give people access to it, because without remuneration, what will happen to the creators of educational materials and other content? Juta speaks to specialist Trademark Practitioner Dr Owen Dean, BA (Law), LLB LLD. Owen is an Attorney of the High Court of South Africa and a Notary Public, as well as the author of “A Gift Of Multiplication.”

THE AMENDMENT GIVETH, AND THE AMENDMENT TAKETH
The Bill is necessary from a point of the digitisation of content creation that has happened since the previous amendment in 2000 – twenty-two years later and the majority of content consumed is via digital pathways, meaning that new legislation has been overdue to protect these creators on these pathways. Internet regulation will be brought up to date, increasing the scope of infringing acts, and giving the copyright owners greater control over the electronic dissemination of works.
Where the amendment taketh is in the exceptions, especially with regard to education. While this can be lauded as being a step towards freer access to educational materials, the question remains when leaning towards the “fair use” concept (fiercely championed by the likes of Google) – how do we continue to encourage quality content creation if the creators cannot control their intellectual property and be appropriately rewarded for it? Certain circumstances obviously allow for a watering-down of copyrights, including study materials, but where we draw the line is the issue.

INTERNATIONAL SPOTLIGHT ON BOTH SIDES
American academics are split on this, as it could simultaneously provide access to educational materials while halting more materials being created, but US and EU legislators are expressing concern for international copyright and their own copyright owners, as universally agreed via the TRIPS Agreement and Berne Convention.

The 3-step test is a clause that establishes three cumulative conditions to the limitations and exceptions of a copyright holder’s rights, basically establishing the legal parameters for reproducing a work. Under Berne Article 9.2, the 3-step test is defined as the following:

“It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

The test is vague but spelt out in the formulation of Hugenholtz and Okediji the three steps are:

1. Limitations and exceptions cannot be “overly broad” [= “certain special cases”]
    
2. Limitations and exceptions cannot “rob right holders of a real or potential source of income that is substantive” [= “conflicting with normal exploitation of the work”]
    
3. Limitations and exceptions cannot “do disproportional harm to the rights holders” [= “prejudice legitimate interests”]
    

While the treaties envisage that exceptions should be limited and spelt out in legislation – essentially the ‘fair dealing’ approach’ – under the proposed amendments this “free” sharing of copyright materials would need to be litigated on a case-by-case basis to protect the creators (assuming that they can afford to do so) and would be at the mercy of a judge’s subjective discretion. This leaves the deck stacked against the protection of intellectual property, and firmly in favour of copyright infringement under a “sin first, repent later” ethos.

CREATORS MIGHT NOT BE REWARDED FOR CREATION
As (or, indeed, if) these cases will be dealt with on a case-by-case basis, it begs some introspection. Firstly, this litigation-heavy style of engagement originates in the United States, where contingency litigation is commonplace. This makes seeking legal intervention much more affordable, a luxury we do not have in South Africa. Additionally, the US allows for statutory damages, which further incentivise potential abusers to exercise caution – not so in South Africa.

Owen makes the analogy of a book club, where litigation could find that fair use of a specific title is acceptable for a group of disadvantaged bibliophiles. Where is the line drawn for a group of wealthy housewives, who adopt this judgement to sip champagne and photocopy the same title for their own perusal?

This leaves us in a position where creatives could need to constantly defend their work and their right to earn an income through costly case-by-case litigation… in reality, they are far more likely to surrender that fight, surrender generating work that is shared without reward, and find another income stream, leaving us poorer, so we must carefully tread the balance between the rights of the copyright owner, versus the interest of the public.

THE COPYRIGHT COALITION
But there are groups hard at work to tackle this and are partly responsible for President Ramaphosa sending the Amendment back to the National Council of Provinces for further thought. The Copyright Coalition of South Africa (CCSA) is a broadly representative group mainly comprised of local trade and industry associations representing hundreds of local companies that drive investment into SA’s creative and education sectors, creating jobs and opportunities for tens of thousands of SA’s creatives.

The coalition is responsible for raising the profile of the issues surrounding the Bills which include discussions around the potential impact on trade relations for South Africa should the bills be passed in their current forms, establishing itself as a reputable organisation advocating for a fair copyright regime in South Africa and is leading the conversation regarding matters affecting content creation and protection.

NEXT STEPS
As the Copyright Amendment Bill and Performers’ Protection Amendment Bill process rests with the NCOP after multiple recommendations, there is hope to iron out these complex issues, but that requires our parliamentarians who represent us in the legislatures to truly understand each and every clause of this bill, as well as the ramifications thereof, instead of making a knee-jerk vote for what seems to be the greater good. Workshops from industry experts – such as Owen Dean – have attempted to impart essential knowledge with these legislators, hopefully enriching the remitted bills’ passage through these structures. Engagement is expected to begin early in January 2023 with a call for written submissions, followed about six weeks later by the first round of public hearings and a report thereon. After this, the provincial legislatures begin their own individual public participation processes – at which point more hearings are expected to take place. We don’t want to lose the good elements of the bill, which are sorely overdue, but this needs to take place to ensure we reach the best possible outcome for all.