The Copyright Amendment Bill has caused great uncertainty in South African and global artistic and creative markets. The bill has gone through many revisions and attracted widespread criticism. Today, it awaits and has been waiting for President Ramaphosa's signature for months. But the whole activity must be restarted due to government's mishandling of the public participation process. If this is not done, the bill will lack the legitimacy that every government policy requires, particularly from the relevant constituency - in this case, innovators.
Good-faith public participation, when new public policy is introduced, is a constitutional necessity. The Latin saying nihil de nobis, sine nobis translates to 'nothing about us, without us', and captures accurately the impetus for many revolutions throughout world history, including the American Revolution and South Africa's struggle against Apartheid. When making policy that will affect someone, that person or group of people must be intimately involved in the process. Their views must not be disregarded, and if government is to have their buy-in, their views must in some way make it into the policy.
The substance of the Copyright Amendment Bill is problematic in itself. The most pressing issue is government's attempt to arbitrarily introduce the American 'fair use' system of copyright exemption into South Africa. But we already have a well-developed system of 'fair dealing', with years of case law and scholarship supporting it. In the United States, fair use is in a similar position. But importing fair use into South Africa without all its accompanying American case law and scholarship is dangerous and serves only to make the intellectual property environment in South Africa extremely uncertain. And wherever uncertainty exists, government is usually allowed to ride roughshod over existing rights.
Whether one agrees with strict intellectual property law or not, this change to South African copyright law makes South Africa an unattractive destination for the artistic and creative market. With our economy set to heavily contract in the midst of the COVID-19 lockdown, we cannot afford these kinds of mistakes with international investment.
When the bill was revised in 2018 in an apparent attempt to deal with industry criticisms, the final product addressed only some minute aspects of those criticisms while ignoring the most pressing ones, and the bill even ended up containing new problematic provisions. One important new provision, section 8A, which replaces lump-sum payments to performing artists with royalty payments notwithstanding any agreements to the contrary, was never subjected to public consultation.
This is something government often does. It would publish a draft bill for public comment, receive the public comments, make changes to the bill, and then…Read the full article by Martin van Staden, Head of Legal Policy and Research, Free Market Foundation, in the June/July 2020 edition of BusinessBrieff
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