Copyright Amendment Bill is failing to deliver

SA’s intellectual property (IP) legislation is in many respects outdated and not fit for purpose with many experts agreeing that the Copyright Amendment Bill, in particular, has failed to bring SA’s copyright laws in line with international norms.

The International Intellectual Property Alliance, a private sector coalition representing large US entertainment companies, has recommended the US Trade Representative place SA on its priority watch list and recommended the US government send a message that the Copyright Amendment Bill and the Performers Protection Amendment Bill are fatally flawed.

Prior to the publication of the Copyright Amendment Bill, SA’s Copyright Act, originally dating back to 1978, was last updated in 1993.

“We anticipated that the bill would update our Copyright Act to address new technologies and our rapidly evolving digital environment, bringing SA s international agreements,’ copyright laws in line with

” says Bernadette Versfeld, a partner at Webber Wentzel.

Not only has the bill failed to address issues arising from the fourth industrial revolution but it’s likely to create confusion, cause harm to creators and owners of copyright and will result in increased litigation, which creators can ill afford.

“Two examples of the inadequacies of the bill are the limitation of the term of assignments and the adoption of the fair use principle,” she says. “Certain types of works (literary and musical works) can only be assigned, sold or transferred for a 25-year term. This means that if you purchase copyright, you will lose those rights after 25 years. This is hugely problematic for investors.”

As Versfeld points out, why would an investor purchase a bundle IP rights when the rights to copyright will revert to the previous owner 25 years after making the investment, and then building and developing that IP over 25 years?

This is further complicated by the bill prohibiting contractual terms which deviate from the provisions of the bill. What this means is that parties can’t determine their own contractual arrangements to avoid the less than ideal provisions of the bill.

She explains the amended bill adopts exceptions and limitations to copyright protection which are far wider than the current exemptions to infringement. “With no case law or guidelines to refer to, this is likely to lead to uncertainty and an increase in litigation,” she says. “With the right IP-based incentives in place, copyright industries, creators and developers have the potential to become powerful sources of economic growth and development, so it’s unfortunate the bill has not addressed the shortcomings we hoped for.”

In addition to copyright, there are three other classes of IP: patents; trademarks; and designs. To “protect” an invention, trademark or design, explains patent attorney Roy Taberer, an application needs to be filed with the Companies and Intellectual Property Commission (CIPC). Once the application has been processed, a registered right is provided that the holder can assert against an infringer.

The development and protection of IP is crucial for economic growth. Wellprotected IP which is successfully commercialised has the potential to attract foreign investment, in turn enabling economic growth.

“Companies planning to invest in SA want the assurance their IP will be adequately protected,” says Versfeld.

As technology evolves at a rapid rate, IP is becoming more important, says Leanne Mostert, a partner at Webber Wentzel.

“The challenge is keeping these IP laws abreast of these developments, particularly when they are being created by artificial intelligence (AI).”

Most jurisdictions require that an invention is made by a human being and even if this was changed to incorporate AI, it would still be difficult to consider as the second requirement for patentability is that the invention must involve an inventive step as judged by an individual skilled in the art.

“This step would be difficult to apply to AI,” she says, adding that perhaps it is time to create a new category of IP to protect inventions arising from AI.