PEN South Africa Concerned About the Copyright Amendment Bill

PEN South Africa has concerns about the Copyright Amendment Bill which the government plans to introduce to bring about changes to copyright law. A major issue is the proposal to invest perpetual copyright in the state when the owner of the copyright dies or cannot be found (Section 25).

Apart from the state arrogating to itself the power to acquire copyright by expropriation – thus depriving an heir or a potential heir of the benefits of the copyright to a work because there is no provision for a search to be made for an heir – the proposal enables the state to gain a controlling power over copyright in perpetuity which is inappropriate in a democracy.

The principle that is overturned by this provision is that laid down by the Berne Convention – that copyright is retained during the lifetime of the author of the work and for fifty years after his/her death. This raises the question – which arises in other aspects of the Bill – that the concept of “fair use’’ — and thus activity that is “fair’’ to the copyright holder — is being negated. This aspect requires rigorous scrutiny by the authorities.

The lack of a provision for the search for an heir to a copyright holder is compounded by the failure of the Bill to outline the lengths to which a person must go to find a copyright holder before they may reproduce, digitise or translate a work or apply to do so under the provision that the rights holder cannot be found. The criticism here is that this could be open to abuse.

Another concern is over Section 6 of the Bill which introduces a resale royalty on artwork and a new principle to the buying and selling of commodities and in this instance, artwork, which is foreign to the artistic profession and business practice generally. The current situation is that once someone has sold an artwork it becomes the property of the new owner who may sell or dispose of it at will. This must be reconsidered. There are other provisions requiring the payment of royalties to the state to which objection is taken. These provisions must be carefully re-evaluated.

There are a number of other proposals which are not clear. These require to be set out plainly so there is no confusion about what is meant or implied.

There are also concerns about the provisions relating to the broadcasting of local content – has the quantity been set too high? – a number of duplications of proposals, confusion over the rights to translate material into other languages for educational purposes, the strange injection of Americanisms and American spelling into some sections of the Bill and the inexplicable injection of some proposals relating to sections that do not appear in the original Act.

Raymond Louw
PEN SA Vice-President

(Image courtesy of Times LIVE)