Dubious Copyright Amendment Bill will result in more litigation

04 Aug 2017

At recent parliamentary hearings on South Africa’s Copyright Amendment Bill, Specialist Consultant, Esmé du Plessis, and Partner, Stephen Hollis, made submissions to the Committee on behalf of the South African Institute of Intellectual Property Law (SAIIPL) and the Law Society of South Africa.

Du Plessis commended the long-awaited efforts at revising the Copyright Act no. 98 of 1978, but gave stern warning of contentious policy issues that would lead to legal uncertainty. In describing the required framework for updating and modernising the current 1978 Copyright Act 1978, du Plessis and Hollis proposed that it is important to take into account several principles and guidelines, namely that lawmakers ensure that South Africa:

  • Implements, and adheres to, the international treaties and instruments that the country has acceded to.
  • Takes note of technological developments, including legal solutions applied in other countries, but without compromising the existing legal dispensation of the country and without slavishly adopting legal models of other countries.
  • Takes account of the need to establish a legal system that will empower and enable – and ultimately benefit – local creators, artists, composers, performers, students – but also local creative industries and business entities
  • Takes account of its domestic legal dispensation in the broader field of lP, and doesn’t compromise long-standing fundamental principles.
  • Takes into account the findings and recommendations of bodies that have investigated and assessed the needs and shortcomings of the current lP legal dispensation, also in the field of copyright law.

It was not apparent to the Copyright Law Committees of the SAIIPL and Law Society that these principles and guidelines were taken into account in the drafting of the Copyright Amendment Bill, 2017.

Mrs. du Plessis, who has practised as an attorney in the field of IP law since 1965, has served on numerous local and international IP industry bodies and policy committees, over many years. She described, in her presentation, the fear that the adoption of a US-style ‘fair use’ policy would lead to an increase in litigation and legal interpretation confusion that would ultimately require guidance from the Constitutional Court.

The team proposed that the Committee consider appointing a Task Team of Experts to work through the Bill and inform the Committee on drafting and legal problems raised; correct the numerous errors and shortcomings identified; assess the arguments raised in regard to policy considerations, legal models used in other countries, and economic factors; and consider convening an inclusive consultative workshop for stakeholders to debate the issues and to seek acceptable solutions.



(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Stephen Hollis

Stephen Hollis is an Intellectual Property (IP) lawyer at Adams & Adams who advises local and international clients on brand protection and enforcement strategies with a specific focus on the... Read more about Stephen Hollis


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