Member Article

We’ve written a fair bit about copyright recently, and much of our focus has been on how the digital age has brought about a marked change in attitude towards copyright (often bordering on ignorance), and has made copyright infringement much easier. In this article, we look at two further examples that reflect this trend. We also look at proposed changes to South African copyright law.

The first of our examples deals with sharing images. Reality star Khloe Kardashian has been sued in a California court for copyright infringement by a company called Xposure Photos (UK) Ltd. Khloe’s error: posting a photo of herself and her sister Kourtney to her Instagram account. Khloe did this without seeking consent from the company that owns the copyright in the photo, and without any acknowledgment. The company is looking for damages of USD25 000 and profits arising from the infringement. The company’s claim is no doubt influenced by the fact that Khloe has an impressive 67-million Instagram followers.

The second example deals with online music. Digital music provider Spotify has decided to settle a class action in a California court based on the company’s failure to pay royalties to the writers of certain songs that have been available on the service. The amount of the settlement is USD43.5-million. In its defence, the company made the point that it is often very difficult to establish the identities of songwriters, and that it regularly sets money aside to pay royalties that may be due. There has been speculation that Spotify’s willingness to settle this case was not unrelated to the fact that the company will be listing shortly. In South Africa, there have been some significant developments in copyright. Lawyers have long been concerned that South African copyright law has done relatively little to keep up with technological changes. So, many were excited when the Copyright Amendment Bill was published for comment in 2015. Unfortunately, the excitement soon turned to disappointment. In fairness, there were some aspects of the Bill that were positive or, at least, non-contentious. In a nod to the technological changes that have occurred since the Copyright Act was passed in 1978, there were provisions regarding “technological protection measure circumvention devices”. A temporary copying exception was created, allowing for the creation of copies that are “transient or incidental”, that are “an integral and essential part of a technical process”, and that “have no independent economic significance”. A 5% resale royalty right for artistic works sold in South Africa was created. There was also a great deal of focus on exceptions to copyright, such as fair use, educational usage and usage by people with disabilities. But not all of the changes were welcomed.

For example:

· for reasons that are unclear, a totally new category of works called “craft works” was created. The idea was seemingly to protect things like pottery, which are, of course, already protected as artistic works. The Bill did not seem to specify a protection term for these craft works;

· the Bill made provision for moral rights for performers, something that is the domain of other legislation, the Performers’ Protection Act, 1967;

· the Bill created a host of new criminal offences, including one that made it an offence to “omit” to pay royalties;

· the Bill had peculiar provisions regarding “orphan works”, providing that the ownership of such works would pass to the state on death, and that the state would then hold the rights in perpetuity, being able to license them but not assign them;

· in keeping with the somewhat statist nature of the Bill, there was a great deal of focus on administration, such as collecting societies and a new Intellectual Property Tribunal;

· the Bill contained requirements for broadcasters to prioritise local content.

Needless to say, the Bill received much criticism and it was clear that changes would need to be made. These have now been published in the Copyright Amendment Bill, 2017. The reaction has been more positive. Academics have praised the fact that the Bill modernises many user rights, for example, through provisions regarding temporary copies. They’ve also commented on the fact that many of the exceptions (such as those for educational use, library use and people with disabilities) follow international best practice.

It’s also noticeable that some of the most contentious aspects of the first Bill have been removed. Gone are the references to “craft works” and the moral rights of performers. The excessive criminalisation of copyright infringement has been halted, and many of the new offences have been removed and replaced with civil infringement provisions. The provisions regarding orphan works have also been removed. There will now be public hearings, and these will presumably result in further changes. Let’s hope that South Africa eventually ends up with the copyright legislation it deserves!

Rachel Sikwane

IP director [email protected] cell: +27 83 529 3639