Legislation: Copyright Bill passes three-steps test

University of Cape Town intellectual property unit director Tobias Schonwetter is confident that fair use provisions in the latest version of the Copyright Amendment Bill are consistent with a three-steps test reflected in the 1886 Berne Convention for the protection of literary and artistic works and the 1995 World Trade Organisation agreement on trade-related aspects of intellectual property rights. This emerged during yesterday’s meeting of the National Assembly Committee on Trade & Industry, when departmental consumer and corporate regulation division official Meshendri Padayachy briefed members on an opinion sought from Schonwetter that was unfortunately not made publicly available.

Stakeholder input on proposed new clauses advertised last month for public comment were also discussed, notes Pam Saxby for Legalbrief Policy Watch. The most substantive change agreed was that the Bill should provide for a court to use its discretion when imposing a penalty for not submitting information to a collecting society on the use of an artistic work. Opposition party members were especially concerned about the implications for small businesses of the ‘harsh penalties’ envisaged – and perceptions that ‘the corporate veil’ tends to protect the errant directors of large companies from the consequences of such actions.

Interestingly, issues raised about the Bill’s implications for SA’s obligations in respect of property rights under the US African Growth and Opportunity Act have already been discussed at length with US government officials and were apparently largely addressed earlier in the drafting process. While the committee was not briefed on Schonwetter’s view in this regard (which apparently featured in his document despite not having been explicitly sought), his opinion on the Bill’s constitutionality relies on sections in the Constitution prohibiting the arbitrary deprivation of property, which Schonwetter believes will suffice – at least according to Padayachy. This is noting that Schonwetter is not an expert on constitutional law, as his report evidently makes clear. Opinions being prepared by the department’s Advocate Johan Strydom and principal state law adviser Gideon Hoorn are expected to throw more light on the matter but will only be available on 7 November.

Meanwhile, a view will be sought from the Broad-based Black Economic Empowerment (B-BBEE) Commission on whether its legislation should apply to collecting societies. This was prompted by a recommendation from the department’s deputy DG for consumer and corporate regulation, Evelyn Masotja, for the removal of a clause making B-BBEE compliance a collecting society accreditation requirement. Given reservations expressed by stakeholders about the committee’s ‘piecemeal’ approach to public consultation and the limited time allowed for input to be prepared and submitted, members have also requested a ‘road map’ of the process followed since the Bill was tabled in Parliament more than two years ago.

The committee is scheduled to meet this afternoon to consider a revised Bill, which will reflect decisions on these issues and will be considered clause by clause. As Legalbrief Today has already reported, the committee expects to have completed its work on the Bill by mid-November in anticipation of a second reading debate in the House during the last week of the month.

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