Proposed legislation decimates intellectual property law in SA

26 June 2017

What is the Department of Trade and Industry (DTI) thinking? With its proposed amendments to South African copyright law, it is ‘not thinking’ at all, and this is what Prof Sadulla Karjiker from Stellenbosch University appears to say. And, after having had a look at the Copyright Amendment Bill (which will amend the Copyright Act) myself, I am inclined to agree.

According to Karjiker, “Pleas for good sense to prevail fall on deaf ears” at the DTI, with government refusing to heed his expertise and that of others in the intellectual property (IP) world. Especially worrying is the apparent poor quality of the legislative drafting that went into the Bill.

The Bill, for instance, fails to accord with the South African IP law understanding of “authors” and “owners”.

Authors are individuals who create the IP, and are usually also the owners. But contracts and employment relationships can have the effect that the owner is distinct from the author, as in the case of a university (owner) and its academics (authors).

The Bill, however, talks of “users” and “producers” as well as authors and owners. The former terms have no meaning in South African IP law and are not defined in the Bill.

The Bill also speaks of a kind of transferable authorship in section 9 – a completely alien notion given that authors cannot ‘un-author’ themselves, whereas they can transfer ownership.

Section 3 of the Bill proposes to vest copyright of any works funded by or created under direction of the State in government. South Africa, however, already has legislation dealing with publicly-funded research: the IP Rights from Publicly Financed Research and Development Act, 2008. This existing Act is good policy, as it brings about certainty in the IP environment and incentivises universities to commercialise publicly-funded research. Publicly-funded research is what led to Google’s ground-breaking technology, and our Act is based on the equivalent American law.

However, given this amendment to the Copyright Act, potentially, universities will now lose to government copyright in the works of academics in its employ, and the same will apply to every other institution that receives funding from the State. No home-grown ‘Google’ will emerge in South Africa with such a disincentive in place.

The Bill introduces new concepts without any jurisprudential history in South Africa. It also borrows words from other jurisdictions and legal systems. For instance, the Bill, seemingly arbitrarily, now speaks of “fair use”, which is a uniquely American legal concept. In South Africa, as in the United Kingdom, we speak of “fair dealing”. The Bill, at certain stages, refers to “fair dealing or fair use.” This is completely nonsensical.

Certain provisions aside, the unconsidered drafting that went into the Copyright Amendment Bill is cause for great concern, especially in light of the fact that the DTI appears to be unwilling to talk.

Stakeholder meetings presumably took place over the last two years, yet the Bill is rife with errors that stand to decimate our IP law regime. The Bill cannot be allowed to pass in its current form.

Prof Karjiker rightly asked, “The system isn’t broken – why go there?!”

The Bill is one in a whole series of proposed laws that fly in the face of the rule of law, which requires certainty, predictability, and rationality in law-making. This Bill, along with things like the Prevention and Combating of Hate Crimes and Hate Speech Bill, 2016 and the Regulation of Agricultural Land Holdings Bill, 2017, introduces dangerous arbitrariness into South Africa’s property rights and civil liberties dispensation.

Before any of these laws proceed, government must commission independently-conducted socio-economic impact assessments to determine whether these interventions will unduly harm the economy or unjustifiably violate the rights of the people. I believe they certainly will.

A thorough public participation campaign must then be conducted on each, informed by the impact assessments, where stakeholders have sufficient time (not the customarily-short 30 days) to comment on the proposed law and engage government on the pros and cons.

Only if this process is followed can we regard a law as legitimately mandated by the South African public.

Martin van Staden is Legal Researcher at the Free Market Foundation and Southern African Academic Programs Director at African Students For Liberty. Read more at www.martinvanstaden.com.