OPINION | Owen Dean: How Parliament should redraft the 'horrendous' copyright amendment bill

Parliament played a terrible opening shot in embarking down its copyright amendment course, writes specialist copyright attorney Owen Dean. "It now has a golden opportunity to redeem itself in playing its second shot." 

Every golfer has had the experience of duffing a shot – driving the ball straight into a water hazard – and, having incurred a penalty stroke, hitting a perfect drive straight down the middle of the fairway at the second attempt. This has given rise to the golfing adage: Confucius say hit the second shot first!

In a similar vein, Parliament has produced a horrendous piece of copyright legislation, but has now been given a second chance to get it right, without incurring any penalty. Will it take up and optimise this break, that is the question? Time will tell.

The essence of copyright 

Copyright is a statute-based body of law that provides creators of written and other works with the power to exercise control over the commercial exploitation of their works. The rationale is to place authors in a position to derive material benefits from the fruits of their labours in creating original works, thus providing them with a means for deriving income and incentivising them to create more and better works for the benefit of all. In practice, this is commonly achieved by enabling authors to charge royalties for the commercial exploitation of their works.

However, this power of authors has the potential to inhibit the general availability of works, which can be contrary to the public good in some circumstances. It is thus necessary to weigh up the private rights of authors (bearing in mind the purpose of copyright) against the public interest. The outcome is that copyright legislators place limitations on the exclusive right of authors in certain defined circumstances in which it is deemed that the public interest outweighs the merits of the right of authors. 

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This copyright regime is recognised, approved worldwide, and regulated in various international treaties, the most important of which are the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention), a World Intellectual Property Organisation (WIPO – an agency of the United Nations) instrument, and the Agreement on Trade-Related Aspects of Intellectual Property Right (TRIPS), an instrument of the World Trade Organisation (WTO). South Africa is a party to both these international treaties and is bound by them.

The South African Copyright Act 

The law of Copyright in South Africa is regulated by the Copyright Act, 1978. It has been amended substantively nine times since 1978, with the most recent amendment being that of 2002. The Act, which was strongly based on the British Copyright Act of 1956, is in conformity with the Berne Convention (often repeating the Convention's exact wording) and The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). 

The Act was good, sound copyright law at the time, and for several decades thereafter. However, it has now become outdated, particularly in its ability to deal properly with electronic works and digital communications. It has fallen way behind the laws of peer countries, like Australia and Canada. It requires substantial judicious amendment, or perhaps even to be replaced in its entirety by a new state of the art Act.

The copyright amendment 

The Department of Trade and Industry (DTI), which administers the law of copyright, perceived the necessity of updating the Copyright Act. A few years ago, it produced a draft amending Bill. By virtue of the strong (justified) criticisms it elicited, it was redrafted several times. The impression is gained that the drafting was undertaken by civil servants and/or ivory-tower academics, who have little conception of applying copyright law in practice or conducting litigation to enforce copyright owners rights. They simply have not done time in the copyright trenches!

Despite the DTI's best efforts, the draft Bill remained an abomination. It was poorly drafted, lacked balance, and exhibited a lamentable lack of appreciation of the principles of copyright law and of the basic tenets of legal draftsmanship. When the Bill came before the Parliamentary Committee on Trade and Industry for consideration, the committee rightly recognised its poor quality and it decided to redraft the Bill itself. It was a daunting task because something that is fundamentally flawed does not really bear being patched up and repaired.

It is said that a camel is a horse designed by a committee. Alas, the Parliamentary Committee, aiming at a horse, designed a five-legged, clumsy camel, unfit for purpose. While it was an improvement on the abominable beast designed by the DTI, it was far from being an acceptable piece of legislation. 

Nonetheless, the draft Bill was passed by Parliament and was submitted to President Ramaphosa for signature in March 2019, whereupon it would become law. Fortunately, President Ramaphosa was alerted to the shortcoming of the Bill, in particular, that several of its provisions are contrary to the Constitution, and declined to sign it. In June 2020, he sent the Bill back to Parliament for reconsideration and compliance with the Constitution. The House of Assembly rescinded the Bill on 1 June 2021. The drafting process ought to start afresh and be undertaken by a small working group of true copyright experts, with practical experience, adopting a balanced judicial approach. Care should be taken that the Bill can pass constitutional muster.

Exceptions to copyright 

Both the Berne Convention and TRIPS provide for legitimate exceptions to be made to authors' exclusive rights. The object of the exercise is to achieve a balance between those rights with the public interest, which requires ready access to information and knowledge materials. In order to achieve this, the exceptions that they countenance must be subject to the treaties' so-called "three-step test", namely (1) they must cover only certain special cases, (2) they must not conflict with the normal exploitation of the work, and (3) they must not unreasonably prejudice the legitimate interests of the rightsholder. Care must be taken when granting exceptions to the authors' rights that they are not excessively eroded, otherwise there is the risk of killing the goose that lays the golden egg. 

The Copyright Act provides for certain exceptions in conformity with the treaties. The ambit of these exceptions in the Act is, however, outdated and no longer keep abreast with modern requirements. There is a need for the range of extensions to be expanded. The Bill seeks to provide for this need. It has, however, exceeded the bounds of reasonableness in doing so. It errs badly in this respect.

Among the Bill's chief shortcomings is the introduction (at the instigation of global American business interests) of its own adaptation of the American principle of "fair use" to the issue of exceptions to the author's exclusive rights. This doctrine may be consonant with legal measures and procedures peculiar to American copyright law and practice, but these mores do not find expression in South African copyright law and practice.  It is thus not adapted for incorporation into our law. It is an alien, noxious weed. Indeed, even in America, serious reservations have been expressed about the desirability and utility of the doctrine.

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"Fair use" entails the court being granted a very wide latitude, subject to certain criteria, to determine just about any form of use (or misuse) of a copyrighted work, on an ad hoc basis, as constituting a permissible and legitimate form of unauthorised use of that work. "Fair use" is virtually what any judge, in his wisdom and discretion, decides in a particular instance should not be the preserve of the copyright owner. It places copyright owners at the mercy and whim of individual judges who may, or may not, have any schooling in copyright. The doctrine has the capacity to undermine the very foundations of copyright by seriously watering down the exclusive rights of copyright owners and emasculating them. To make matters worse, a particular "infringement" can only achieve recognition as being "fair use" in a judgment handed down at the very end of a copyright infringement case. Nobody can know in advance whether the act in question will get awarded a free pass! There is no rule book that can be consulted. This is the epitome of uncertainty.

The "fair use" doctrine provides fertile ground for litigation in view of its vagueness and the uncertainty that it creates. This certainly does not serve the public interest in the big picture. It is extremely doubtful whether the "fair use" doctrine complies with the three-step test and is, therefore, in compliance with members' obligations under the Berne Convention and TRIPS. As an aside, there are also other provisions in the Bill that are at odds with the treaties (as pointed out by President Ramaphosa) and are thus beyond the pale.

By contrast with the alien doctrine of "fair use", our Copyright Act deploys so-called "fair dealing" with a work in creating exceptions in certain carefully circumscribed and special cases set forth in detail in the legislation. These are cases where the legislature considered that works should be available for use outside the constraints of copyright restrictions in the public interest. These exceptions enjoy the considered approval of the lawmakers after canvassing public opinion. The "fair dealing" approach is inspired by the international three-step test and is followed by the vast majority of countries. It has the merit of relative legal certainty with its measures enjoying public scrutiny and approval, as opposed to the somewhat arbitrary judge-made ad hoc discretionary determinations which characterise the "fair use" doctrine. 

Apart from the iniquities of the adoption of the generalised  "fair use" doctrine, the Bill also goes much too far in granting a range of certain additional specific exceptions. The combination cooks the golden goose. The balance between the rights of authors/copyright owners, and the public interest, is tipped excessively against the former. The Bill can by no means qualify as being friendly to creatives, one of its proclaimed objectives. Using the stealth of the exclusions blade, it stabs them in the back. It is duplicitous. 

Additional flaws 

Apart from the major flaw discussed above, there are numerous instances in the Bill of impracticalities (which simply will not, and cannot, work in practice), confused and wrong terminology (which will create uncertainty – a serious shortcoming in legislation), anomalies and anachronisms. It contains provisions that are at variance with the fundamental principles of copyright law. It evidences a lack of knowledge of our current law of copyright and proceeds on the basis of incorrect premises, resulting in false conclusions. It is simply unacceptable as a piece of legislation and should not be perpetuated.

Space does not allow the exposition of a full catalogue of the Bill's shortcomings. A few relatively easily explainable examples will suffice for present purposes.

Parting shot 

Parliament played a terrible opening shot in embarking down its copyright amendment course. It now has a golden opportunity to redeem itself in playing its second shot. In gathering itself to do so, it should eschew the bad advice inspired by foreign (American) interests it relied upon for its first shot, and instead embrace the good expert local advice, born of practical experience of local conditions, available to it. This will enable it to land the second shot squarely in the middle of the fairway and avoid the tangled brambles of the rough. 

Would that Parliament had heeded Confucius' wise counsel in the first place!

- Owen Dean is an Emeritus Professor at the University of Stellenbosch, a specialist copyright attorney and author of 'Dean: An introduction to copyright law'.

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