1. The Copyright Amendment Bill Presentation at the Internet Rights, Cultural Development and Balancing Features in SA Copyright Reform The HUB, PRETORIA 11 August 2015

2. Presenter Mr MacDonald Netshitenzhe: Chief Director, Consumer and Corporate Regulation Division 2

3. Purpose The purpose of this presentation is to consult with Copyright Stakeholders on the Copyright Amendment Bill, 2015. Goal: To get comments and inputs on the Copyright Amendment Bill in view of the digital era and multilateral agreements and to ensure consistency and coherence in aligning the approach of various Stakeholders and Government Departments to Intellectual Property (IP) matters. 3

4. 4 Problem Statement the dti as a custodian of Intellectual Property (IP) has the identified that IP Legislation are not updated to be in line with flexibilities found in multilateral arrangements, in the area of copyright the Act limits the access to education, access to knowledge, learning materials for the nationals and people with disabilities. The creative industry in particular musicians, are vulnerable to abuses by users of their IP. Local artists, performers, composers and other authors of copyright works are dying as paupers because royalties of their works are not paid. The universal purpose of Copyright is to reward and incentivise creators of knowledge and art. Various sectors within the South African Copyright regime are dissatisfied. Ranking highest are the local performers and composers, who have not benefitted due to the lack of access to the Copyright system. (Copyright Review Commission (CRC) report 2011). The digital environment is not catered for in the Act.

5. Problem Statement Dispute resolution processes are not speedily as courts are over loaded with work. The Copyright Tribunal is presided over by Judges of the High Court and disputes are not resolved speedily. There is no obligation on the side of Government to impart knowledge on the public on Copyright issues. Education and awareness for stakeholders is not taking place effectively. Education and awareness programs are to be addressed in order to develop and support the growth of the creative industry and to encourage South Africans to be creators of Intellectual Property. 5

6. Objectives of the Bill To develop a legal framework on Copyright that will promote accessibility to producers, users and consumers in a balanced manner; this includes flexibilities and advancements in the digital space that should empower all strata of the citizens of South Africa. To address the licensing of Copyright works/material in relation to commissioned work to facilitate commercial exploitation by any person so licensed. To ensure that IP legislation remains updated in view of the ever evolving digital space; that current legislation does not limit access to education; that access to information and resources are available for persons with disabilities and that artists and authors of works do not die as paupers due to ineffective protection. 6

7. Objectives of the Bill To provide exceptions and limitations in order for South Africa to address national needs, to encourage international organisations to take into consideration “new emerging issues” in the area of Copyright which enhances access to and use of copyright works. To enhance access to information for the enhancement of education and research and payment of royalties to alleviate the plight of the creative industry. 7

8. Proposed Amendments Copyright and Performers Rights Issues to be introducedWhat the Bill provides Crafts WorksThe Bill introduces and defines Crafts Work as works of pottery, glasswork, sewing, knitting, crochet, jewellery, tapestry, woodwork, lace work, embroidery, paper tolling, folk art and hand-made toys. 8

9. Proposed Amendments Copyright and Performers Rights Issues to be introducedWhat the Bill provides Collection of Royalties/ Royalty ManagementSection 10 of the Bill which provides for the insertion of section 9B – 9F after section 9A into the principal Act provides in section 9B(1) and (2), inter alia, that: “There shall be one Collecting Society per copyright and per set of rights with regard to all music rights such as performance, needletime and mechanical...” “In cases where there is no Collecting Society, contractual arrangements between copyright owners and creator shall be prescribed by the Minister.” 9

10. Proposed Amendments Copyright and Performers Rights Issues to be introducedWhat the Bill provides Minimum Contractual termsThis is so as to safeguard the rights of contracting parties. the dti must develop a standardised template of terms and conditions for contracts for the creative industry, for example between performers and recording companies. All collecting societies must be regulated by the Companies and Intellectual Property Commission (CIPC) Section 10 of the Bill which provides for the insertion of section 9B stipulates, in section 9B(1), that: 9B – “There shall be one Collecting Society....to be registered and regulated by the Commission (CIPC).” 10

11. Proposed Amendments Copyright and Performers Rights Issues to be introducedWhat the Bill provides Reciprocity on Needle TimeSection 10 of the Bill which provides for the insertion of section 9C stipulates, in section 9C(2)(a), that : A Collecting Society may enter into an agreement with any foreign society or organisation administering rights corresponding to rights under this Act, to entrust to such foreign society or organisation the administration in any foreign country of rights administered by the said Collecting Society in the Republic: Provided that no such Collecting Society or organisation shall permit any discrimination in regard to the terms of licence or the distribution of royalties collected. 11

12. Proposed Amendments Copyright and Performers Rights Issues to be introducedWhat the Bill provides Collecting Societies to collect only for their registered members Collecting societies practice of distributing unallocated revenues is unacceptable Exceptions and LimitationsSection 22 of the Bill which provides for the insertion of section 19C – 19E after section 19B of the principal Act makes provision for exceptions and limitations for libraries, museums, galleries and people with disabilities. Beijing Treaty Section 24 of the Bill which provides for the insertion of section 20A(4) grants performers four kinds of economic rights for their performances fixed in audio visual fixations, namely: (c) reproduction; (d) distribution; (e) rental; and (f) making available 12

13. Proposed Amendments Issues to be introducedWhat the Bill provides Marrakesh TreatySection 22 of the Bill which provides for the insertion of section 19C into the principal Act makes provision for making accessible formats of a work to accommodate persons with disability. WIPO Performances and Phonograms Treaty(WPPT) Section 24 of the Bill which provides for the insertion of section 20C into the principal Act makes provision for the producers of phonograms to enjoy an exclusive right of authorising the provisions in section 20C(2)(a-d) of the Bill. Both the performer and producer of a phonogram shall enjoy the right to a single equitable remuneration in terms of section 20C(3) of the Bill. 13

14. Proposed Amendments Issues to be introducedWhat the Bill provides WIPO Copyright treaty (WCT)Section 24 of the Bill which provides for the insertion of section 20F into the principal Act makes provision for the protection of the rights of their authors in the digital sphere is an authenticated user with a legitimate right to use the material. Films, TV and Radio Shows, Photographs The commercial re-use of works such as the rebroadcasting of films in the area of copyright without any compensation to the author is unfair. 14

15. Proposed Amendments Issues to be introducedWhat the Bill provides Resale of Original Work of ArtSection 6 of the Bill which makes provision for the insertion of section 7A into the principal Act stipulates in section 7A(1) that a creator of artistic work shall, with respect to original works of art enjoy the inalienable resale royalty right on the commercial resale of his or her created work of art subsequent to the first transfer by the author or creator of such work of art. Local ContentSection 11 of the Bill which provides for the insertion of section 10A stipulates that the broadcasting industry is under obligation to develop the culture and support the growth of local content in specified areas of the Republic. 15

16. Proposed Amendments Issues to be introducedWhat the Bill provides Orphan Works and Exceptions and LimitationsSection 25 of the Bill which provides for the insertion of section 21(3) into the principal Act stipulates that: Ownership of any copyright whose owner cannot be located, is unknown, or is deceased shall vest in the state: Provided that if the owner of such copyright is located at anytime, ownership of such copyright shall be conferred back to such owner. Furthermore, section 27 of the Bill which provides for the insertion of section 22A into the principal Act makes provision for a person who wishes to obtain a licence to do an act which is subject to copyright in respect of orphan works. 16

17. Proposed Amendments Issues to be introducedWhat the Bill provides Fair Use of Copyright WorkSection 14 of the Bill which provides for the insertion of section 12A which deals with the exception of fair use stipulates, inter alia, that: “Notwithstanding any provision of this Act, fair use of work eligible for copyright includes the use by reproduction in copies, translation or by any other means which does not require the granting of licence as specified in the Schedule hereto.....” Furthermore, this section stipulates the factors that need to be considered in determining whether the use of a copyright amounts to fair use. 17

18. Key Issues Key Issues: 1.FLEXIBILITIES 1.1 Access to Education 1.2 Access to Knowledge 1.3 Access to learning Materials 1.4 People with Disabilities 1.5 Access : Libraries and Orphan Works 2.ARTISTS 2.1 Performers 2.2 Accrual of Royalties 2.3 Joint Owner of Copyright 2.4 Rights to be managed 2.5 Resale 2.6 Percentages of Royalties 2.7 Separate Collecting Societies 2.8 Composers/ Authors/ Fixation 18

19. Key Issues Key Issues: 3. PHONOGRAMS/ PERFORMERS RIGHTS 3.1 Copyright Owner (Joint Ownership?) 3.2 Royalty Accrual to parties 4.COLLECTIVE MANAGEMENT 4.1 One Collecting Society per right 4.2 Right of Resale: Separate Collecting Society? 5.COLLECTING SOCIETIES 5.1 Collective Management in the Digital Environment 5.2 Treaty Language (WPPT + WCT) 5.3 Reciprocity in terms of the Rome Convention (ILO) 19

20. Key Issues Key Issues: 6. TRIBUNAL COLLECTIVE 6.1 Parties to determine rates 6.2 Moral and Economic Rights separated 6.3 Tribunal to be informed by economics in determining rates 7.TREATIES INVOLVED 7.1 WPPT 7.2 WCT 7.3 ILO CONVENTION ETC……. 8.MEMBERS OF THE IP TRIBUNAL Requirements? 20

21. 21 Thank You