The Copyright Amendment Bill amends the Copyright Act, No 98 of 1978 and the Performers Protection Act, No 11 of 1967. The Bill modernises both Acts, but it also creates many problems, which makes it unlikely that the Bill will be passed in its current form.

Amendments and issues regards the Copyright Amendment Bill

One of the biggest changes the Copyright Amendment Bill suggests is that copyright will automatically transfer to the state if the owner “cannot be located, is unknown, or is deceased.” This is highly problematic as a copyright holder’s heirs will not receive any possible royalties, they would all go to the state. This would be very difficult to practically achieve and the Bill gives no indication as to what structures would need to be in place. The Bill then prohibits the state from assigning the copyright to anyone. This means that the state would never be able to sell the rights it holds for gain.

Assignment of copyright will only be valid for 25 years from the date of the assignment. Once 25 years have passed the copyright vests back to the author.

The Bill introduces a resale right that entitles the creator of an artistic work to receive a 5% royalty on the commercial sale of the work every time it is resold. In theory this is very good and follows the EU law approach, but the Copyright Amendment Bill gives no guidelines as to how it would work in practice.

The Copyright Amendment Bill proposes the formation of an Intellectual Property Tribunal. This is a very good idea, but the powers it has are too broad as it can hear any application “made to it in terms of this Act … or any legislation.”

A fair use exception has been added, but only in limited circumstances such as “cartoon, parody or pastiche work in songs, films, photographs, video clips, literature, electronic research reports or visual art for non-commercial use…”.

The definition of “craft works” has been added which includes “pottery, glasswork, sewing, knitting, crochet, jewellery, tapestry, woodwork, lace work, embroidery, paper tolling, folk art and hand-made toys.”

The Copyright Amendment Bill also creates numerous criminal offences, for example failure to pay royalties is now a criminal offence rather than a civil offence.

failure to pay royalties is now a criminal offence

Summary and Next Steps

These are just some of the amendments to the Act, and while the Bill does introduce some much needed additions, the issues it creates are extremely problematic.

We suggest you read the Copyright Amendment Bill and comment on it by 27 August 2015.

Find out more about copyright protection here.