Arts & culture should handle intellectual property
When President Cyril Ramaphosa mulls over the reconfiguration of his cabinet if the ANC wins the elections in May, he should reflect on reassigning responsibilities between ministries.
The Copyright Coalition of South Africa believes the president needs to think about where intellectual property (IP), understood as a distinct subset of industrial property, may find a safe home and allow the creative sector to flourish.
Ramaphosa is considering two bills for assent after they were passed by the National Assembly in the last two months.
According to the department of trade, industry & competition (DTIC), these bills seek to improve access to information for all South Africans and to provide benefits for authors and creators. The advocates of this thinking call it “fair use”.
To say that creatives were outraged at the DTIC and their incompetence in managing the legislative process for the past 15 years would be an understatement. We cannot make out whether the drafters of the bills do not understand IP or have an intrinsic misunderstanding of the world that creatives inhabit, or both.
Five years ago the president sent the bills back to parliament, and yet today only two out of the six reservations cited by the president have been “addressed ”— one by a simple deletion without resolving the underlying issues.
Ramaphosa had reservations that several sections of the Copyright Amendment Bill could constitute “retrospective and arbitrary deprivations of property” in that copyright owners would be entitled to a lesser share of their work than was previously the case.
The retrospective application of the bill was unlikely to survive constitutional challenge, he said.
Another grave concern was that the fairuse provision was not subjected to public comment before the final version of the bill was published.
This clearly shows there’s a lack of interest or understanding from the DTIC on how the country can capitalise on its cultural influence globally.
We believe the bills were misplaced with the DTIC to start with. They are not the right department to deal with this matter as they possibly do not understand the world of creators and performers and where their bread and butter lie.
The backers of “fair use” advocate misappropriating it to circumvent fair remuneration for intellectual property. They intend to deepen the so-called “value gap”, where they are allowed to reap profit without ever having had to sow the seeds through investment in the local market.
The DTIC may be well suited to deal with so-called industrial property, effectively rights that arise as a result of successful registration of trademarks, designs and patents.
The process of updating the copyright legislation underpinning the creative sector, and future updates to knowledge systems of indigenous peoples as well as local communities, should be driven by the department of sport, arts & culture (DSAC).
By design and configuration, the DSAC is populated by people that are immersed in the emotional and cultural part of the work of creators and understand how much their work means to them for present and future earnings.
To safeguard the future of our cultural capital, we think Ramaphosa should spare the DTIC from the burden of truly coming to grips with the sector and allow it to focus on matters associated with industrial policy.
The president must give the cultural sectors a fresh and real opportunity to redraft the bills properly, and this is best led by the DSAC.
This does not mean that the DSAC will be given carte blanche. We will also hold them accountable and require a proper socioeconomic impact assessment to be conducted for the first time, along with accession to international treaties such as those of the World Intellectual Property Organisation.
The president must listen to his own political party, which only last month joined our call to ask him not to sign the bills.
ANC secretary-general Fikile Mbalula said: “We cannot afford to go ahead and promulgate a piece of legislation that one party believes is grossly unfair. It is our considered view that none but the creative sector can best tell what is in the interest of this broad field.”
The president must not sign the bills. He must also not send them back to DTIC in a hurry. He must charge the DSAC with producing a first-rate copyright bill and a performers’ protection bill that lives up to world standards — with more conscience and fairness, with a full embrace of the concept of evidence-based lawmaking and with a wider and deeper consultation with the right people.
It is the right thing to do. For the creatives. For the industry. And for South Africa.