1. BACKGROUND 1.1 The Copyright Amendment Bill ("the Bill") seeks to align copyright with the digital era and developments at a multilateral level. The existing Copyright Act, 1978 (Act No. 98 of 1978) ("the Act"), is outdated and has not been effective in a number of areas. The creative industry is impacted upon; educators are hampered in carrying out their duties; researchers are restricted to further developing research; and people with disabilities are severely disadvantaged by having limited access to copyright works. For this reason, a need exists for Intellectual Property ("IP") legislation to be consonant with the ever evolving digital space; to allow reasonable access to education; to ensure that access to information and resources are available for persons with disabilities; and to ensure that artists do not die as paupers due to ineffective protection. The latter is supported by the experience of the power imbalance, vulnerabilities and abuse taking place in the music industry which Government was called to address. 1.2 The Bill is consistent with the Draft National Policy as commented on and the recommendations of the Copyright Review Commission ("the CRC") chaired by retired judge Ian Farlam, and is linked to the National Development Plan ("NDP"), in that it seeks to ensure consistency and coherence in aligning the approach of various Government Departments to IP matters. The proposed provisions in the Bill are strategically aligned with the treaties that South Africa reviewed, amongst others, the World Intellectual Property Organisation ("WIPO") digital treaties namely the WIPO Copyright Treaty ("WCT"); the WIPO Performance and Phonograms Treaty ("WPPT"); the Beijing Treaty for the Protection of Audio Visual Performances; and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. The alignment is for purposes of ensuring effective governance, social protection, employment creation and reduction of inequalities. 1.3 The amendment of the Act means that South Africa will be able to accede to international treaties and conventions which require domestic legislation to be consistent with international imperatives. 2. OVERVIEW OF BILL 2.1 The purpose of the proposed amendments to the Act is to protect the economic interests of authors and creators of work against infringement by promoting the progress of science and useful creative activities. It is also envisaged that the proposed legislation will reward and incentivise authors of knowledge and art. Various sectors within the South African Copyright regime are dissatisfied. Ranking highest are local performers and composers, who have not benefitted due to the lack of access to the Copyright system. (CRC report 2011). Thus, the Bill aims to make copyright consistent with the digital era, developments at a multilateral level, international standards and introduce improved exceptions and limitations into Copyright law. The Bill also aims to enhance access to and use of copyright works, to promote access to information for the advancement of education and research and payment of royalties to alleviate the plight of the creative industry. 2.2 The objectives of the Bill are: - to develop a legal framework on Copyright and related rights 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 or material in relation to commissioned work to facilitate commercial exploitation by any person so licensed. 2.3 The Bill introduces provisions which deal with matters pertaining to Collective Management. Collecting Societies will only be allowed to collect for their registered members, and all Collecting Societies have to be registered with the Companies and Intellectual Property Commission ("CIPC"). Collecting Societies will only be allowed to collect for one set of Copyright Rights (Performance, Mechanical and Needle time). 2.4 The Bill deals with the protection of works and rights of authors in the digital environment. 2.5 The Bill provides for the availability of accessible formats of a work to accommodate persons with disabilities. This provision extends beyond matters pertaining to the blind but to other disabilities such as learning disabilities, dyslexia etc. 2.6 The Bill introduces an Artist Resale Royalty. This resale right means that an artist could be entitled to a royalty even when their work is resold. 2.7 Scope is left for the reproduction of copyright material for certain uses or purposes without obtaining permission and without paying a fee and without paying a royalty. Limited circumstances have been provided for in this regard. Furthermore, this provision stipulates the factors that need to be considered in determining whether the use of a copyright amounts to fair use. 2.8 The Bill proposes a new structure for the tribunal that will settle disputes in the area of all domains of IP. The current Tribunal process takes long to settle disputes and was found to be ineffective by the CRC in providing speedy redress to rights holders. There is clear justification to follow the route taken in respect of the Companies, Trade Marks and Competition Tribunals which are good examples in this regard. This will be a Tribunal to deal with all IP matters. 3. ANALYSIS OF BILL 3.1 Clause 1 of the Bill proposes the insertion into the Act of a range of new definitions necessitated by certain amendments embodied in the Bill. 3.2 Clause 2 proposes the insertion of section 2A in the Act, circumscribing the extent of copyright protection. 3.3 Clause 3 of the Bill proposes an amendment to section 5 of the Act by providing for State ownership of copyright funded by the State. 3.4 Clause 4 of the Bill proposes an amendment to section 6 of the Act by providing for communication to the public of a musical work, by wire or wireless means, including internet access and making available to the public a work in such a way that members of the public may access such work from a place and at a time individually chosen by them, whether interactively or non-interactively. 3.5 Clause 5 of the Bill proposes an amendment to section 7 by providing for communication to the public of an artistic work by wire or wireless means, including internet access. 3.6 Clause 6 of the Bill proposes an amendment to section 8 of the Act by providing for communication to the public of a cinematograph film or audiovisual fixation by wire or wireless means, including internet access. 3.7 Clause 7 of the Bill proposes an amendment to section 9 of the Act providing for communication to the public of a sound recording by wire or wireless means, including internet access. Furthermore, by providing for a person who intends to broadcast, cause transmission of or make any work available to the public, to give the author, collecting society or indigenous community a notice in the prescribed manner of his or her intention to perform such acts, indicating where practicable, the date of the proposed performance, proposed terms and conditions for the payment of royalties and requires the copyright author, collecting society or indigenous community to sign the proposal attached thereto. 3.8 Clause 8 of the Bill proposes the substitution of section 9A of the Act. It embodies a variety of additions and amendments pertaining to the payment of royalties in respect of intellectual property rights. 3.9 Clause 9 of the Bill proposes the insertion into the Act of sections 9B to 9F, providing for the resale, duration, assignment or waiver of royalty rights. It also provides for authors to enjoy the inalienable resale royalty right on the commercial resale of his or her work of art, subsequent to the first transfer by the author of such work of art. 3.10 Clause 10 of the Bill proposes an amendment to section 12, providing for fair dealings and uses of copyright work. 3.11 Clause 11 of the Bill proposes the insertion of section 12A in the Act, providing for the general exceptions from copyright protection and section 12B providing for the first sale or transfer of ownership of copyright to exhaust the rights of distribution and importation locally and internationally in respect of the transfer of the original or copy. 3.12 Clause 12 of the Bill proposes the insertion of sections 13A and 13B in the Act providing for the permission to make transient or incidental copies of a work, including reformatting, an integral and essential part of a technical process. 3.13 Clause 13 of the Bill proposes an amendment to section 16 of the Act, providing for the deletion of subsection (1). 3.14 Clauses 14 and 15 proposes the repeal of sections 17 and 18 of the Act, respectively. 3.15 Clause 16 of the Bill proposes the repeal of section 19A of the Act. 3.16 Clause 17 of the Bill proposes an amendment to section 19B of the Act by providing that the person having a right to use a copy of a computer program shall be entitled, without the authorisation of the rights holder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program, if he or she does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he or she is entitled to do. 3.17 Clause 18 of the Bill proposes the insertion of sections 19C and 19D into the Act by providing general exceptions regarding protection of copyright work for archives, libraries, museums and galleries, also exceptions regarding protection of copyright work for persons with

To amend the Copyright Act, 1978, so as to define certain words and expressions; to allow for the reproduction of copyright work; to provide for the protection of copyright in artistic work; to provide for the accreditation and registration of Collecting Societies; to provide for the procedure for settlement of royalties disputes; to allow fair use of copyright work; to provide for access to copyright works by persons with disabilities; to provide for the protection of authorship of orphan works by the State; to provide for the establishment of the Intellectual Property Tribunal; to provide for the appointment of members of the Intellectual Property Tribunal; to provide for the powers and functions of the Intellectual Property Tribunal; to provide for prohibited conduct in respect of technological protection measures; to provide for prohibited conduct in respect of copyright management information; to provide for management of digital rights; to provide for certain new offences; and to provide for matters connected therewith.