Sean Flynn and Jonathan Band
On November 13, 2019, BusinessTech published an article listing the International Intellectual Property Alliance’s five primary concerns with the Copyright Amendment Bill awaiting President Ramaphosa’s signature. These concerns have led the U.S. Trade Representative to review the eligibility of South Africa for trade preferences. An examination of these five concerns reveals that they have no merit.
1. IIPA claims the bill includes “severe restriction on the freedom of rights holders to contract in the open market.” The first restriction identified by the IIPA is that the bill limits assignment of rights to a maximum of 25 years. That is, 25 years after a creator assigns his copyrights to a publisher or other media company, the rights revert to the creator. Such reversion rights exist in the United States, 35 years after the transfer. And as in the South African bill, this reversion can occur notwithstanding any agreement any agreement to the contrary.
In other words, the IIPA is objecting to a feature of the South African bill analogous to an existing provision in U.S. law. These two provisions have the same objective: to protect the creator from exploitation by media companies who have all the bargaining power. It should be noted that IIPA represents large U.S. media companies, not individual artists.
The other restriction the IIPA flagged in this context is that the bill provides ministerial powers to sets standard terms for contracts covering the transfer of rights. However, granting the Minister this power does not require the Minister to exercise it. It is understood that the Minister would set standard terms for contracts only when abuses arise in the marketplace. IIPA members can prevent the Minister from setting standard terms by treating authors fairly.
2. IIPA attacks the amendment bill’s hybrid model of combining specific exceptions with a flexible fair use right. But the U.S. has precisely this same model. In addition to fair use, the U.S. Copyright Act has specific exceptions for libraries, archives, educational institutions, people with print disabilities, users of software, religious institutions, charitable organizations, small restaurants, agricultural or horticultural organizations, vending machine operators, and families that want to censor inappropriate material. The “broad new exceptions” decried by IIPA are no broader than current exceptions in the U.S.
3. The IIPA asserts that the bill regulates the relationship between creative parties rather than providing a robust legal framework for the protection of works within which private parties can negotiate freely. This is a variation of point 1 above. In both the U.S. and South Africa, there is a long history of record labels and other media companies exploiting creators, especially artists of color. Many performing artists have aged in poverty because they signed away all their rights in their youth and media companies have denied them a fair share of the profits. There is unequal bargaining strength between sophisticated companies with their armies of lawyers and individual artists who focus on their craft. The South African bill correctly tries to level the playing field.
4. IIPA states that the amendment bill does not provide adequate civil remedies and criminal penalties for infringement, particularly online piracy. However, the bill supplements the existing framework of remedies and penalties with criminal penalties for the removal of copyright management information and the circumvention of technological protection measures. Thus, the bill provides additional means of targeting infringement online.
5. IIPA criticizes the drafting of the bill, especially the provisions concerning technological protection measures. But all statutes have ambiguities because they are the result of compromises among competing stakeholders, government agencies, and legislators. The U.S. Copyright Act is full of ambiguities which lead the inconsistent judicial decisions. Indeed, there is a profound split among U.S. courts concerning the proper meaning of the provision in the U.S. Digital Millennium Copyright Act prohibiting the circumvention technological protection measures. Some courts say that it applies only to acts of circumvention that can lead to infringement, while other courts hold that it applies even to acts of circumvention that cannot possibly result in infringement.
In sum, there is nothing in the Copyright Amendment Bill that warrants review of South Africa’s eligibility for trade preferences.
