Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698138585198.pdf (South Africa)
1.

Persons with a disability 2.

Personal copies 3.

Technological Protection Measures 4.

Extending digital rights to published editions and computer programmes 5.

Offenses for TPMs and digital rights 6.

Making the fair use factors applicable to other exceptions 8.

Adding the wording of the Three Step Test 9.


Fresh consideration of the Bill PASA’S PARTICIPATION IN THE LEGISLATIVE PROCESS The Publishers’ Association of South Africa (PASA http://www.publishsa.co.za/) is the largest publishing industry body in South Africa.

It represents book and journal publishers in South Africa.

PASA’s membership comprises the majority of South African publishing houses.
PASA promotes the contribution of literature in all its forms to social and economic development, both of communities and individuals.

PASA has been actively involved in responding to proposals to amend the Copyright Act, 1978, and the Performers’ Protection Amendment Act, 1967, since the Draft National Policy on Intellectual Property of 2013.
PASA commissioned PwC to carry out an economic impact assessment of the education exceptions and ‘fair use’ provisions of the Bill, which report was published in July 2017 and delivered to the then Portfolio Committee on Trade and Industry.

This PwC study remains the only comprehensive economic impact assessment of these provisions of that Bill.
PASA is a member of the Copyright Coalition of South Africa (CCSA) which covers a broad range of stakeholders including trade and industry associations that represent local companies responsible for key investments in the creative and education sectors.
PASA’s submission has the support of separate and independent organisations, namely the CCSA, the Academic and Non-Fiction Authors’ Association of South Africa (ANFASA), the International Publishers Association (IPA), the International Federation of Reproduction Rights Organisations (IFRRO) and the Dramatic, Artistic and Literary Rights Organisation (DALRO).

2 We draw your attention to following extract from the ‘DRAFT CREATIVE INDUSTRIES MASTERPLAN.

ANNEXURE 3.

PUBLISHING.

KEY ACTION PLAN.


September 2021’ (page 2).

It summarises the status of the publishing and print media in South Africa and highlights their pre-Covid-19 economic and cultural contribution to the creative industries in South Africa.

The Publishing and Print media constitutes an important subgroup of the creative industries from both the cultural and the economic point of view.
Publishers drive the development of intellectual products for a range of markets by conceptualising products, creating locally relevant and appropriate learning materials, reflecting the knowledge and creativity of the country in books that can be widely accessed both in South Africa and in the rest of the world and in investing in the development of these products.
Growth in the publishing industry has a ripple effect that is felt throughout the book value chain including printers, paper manufacturers, digital creatives, freelance publishing professionals (editors, proof-readers, typesetters, designers, illustrators), authors, educationalists, learners, booksellers (online and physical shops), library suppliers and book distributors.
The publishing and media industries face new challenges due to the growing trend towards electronic publishing, piracy and unauthorised usage of content and adverse policy and legislative developments… In 2018-19, the South African publishing industry generated R3.5 billion in revenue.

Comparative data from other studies indicate this growth is higher than expected, although it still falls within the range estimated by the Industrial Development Cooperation (around R3.4 billion) and PwC (R3.8 billion).
The three main publishing sectors are Education (school learning material and TVET college textbooks, AET textbooks), Academic (university learning material, scholarly works and professional reference works), and Trade (general fiction and non-fiction books in print and digital formats).

Unlike the international situation, where Trade or general retail publishing accounts for around 50% of income, in South Africa the Education sector accounts for around 60% of revenue.
Of this revenue, just 3-4% represents sales of digital books.

3 BROADER CONSIDERATION OF THE BILL REQUIRED While noting that submissions must be limited to the proposed amendments (the ‘blue text’), we respectfully submit that, based on the interconnected nature of the whole of the Bill, there are a number of other aspects of this Bill that merit your attention.

We list some aspects at the end of this submission.
These shortcomings stem from a number of causes, for example: * incomplete assessment and use of the advice by the panel of experts appointed by the previous Portfolio Committee, which included warnings that the Bill is adverse to obligations in international treaties to which South Africa is a contracting party – or to which South Africa should accede according to a cabinet resolution on 5 December 2018 – which warnings have not yet been addressed sufficiently * incomplete legal assessment of submissions to the Committee during June 2021 – August 2021 * the Portfolio Committee using legal advice that also provided advice to the previous Committee and that led to the current state of affairs where the Committee has to move even beyond the referrals by the President in having to correct errors and add for example definitions and new wording to the Bill.
The irony of this situation is that the Portfolio Committee appropriates to itself the right to move beyond the President’s referrals as it finds more and more deficiencies in the Bill, yet restricts stakeholders to extremely limited opportunities for comments.

* the persistent lack of a proper socio-economic impact assessment, even though the Committee opens up new economic and financial threats and risks to the creative industries by new additions and changes to the Bill.
4 The lack of legal assessment is clearly illustrated by comparing the written submission of the South African Institute of Intellectual Property Law (SAIIPL) to the Portfolio Committee, dated 19 July 2021, with the inadequate amendments by the Committee to the Bill since then, and the blind eye being turned to the detailed listing of defective issues in that submission.

An example is the incomplete addition of the Three-step Test in the new CAB wording – welcome as the move is.
Quoting from the SAIIPL submission (our emphasis in italics): …when new copyright exceptions are intended to be legislated, it is good practice to assess each proposed exception against the Three-Step Test.
Failure to do so could expose South Africa to a complaint before the TRIPS Council and could also result in foreign rightsholders demanding that copyright exceptions be interpreted or “read down” in compliance with the Three-Step Test when enforcing their rights of copyright in South Africa – all of which being to the disadvantage of South African rightsholders who would not be able to rely on the Three-Step Test in local infringement actions.
In short, the current amendment process, which boils down to a tinkering exercise, needs to be suspended and independent legal copyright experts need to provide a new draft of a Copyright Amendment Bill.

As South African arts and culture are now increasingly entering the global stage, it is imperative that we have a new copyright act that strengthens local industries and enables full access to global opportunities.

5 1.
PERSONS WITH A DISABILITY Clause 1 – Copyright “‘authorized entity’ means— (a) an entity that is authorized or recognised by the government to provide educatio n, instructional training, adaptive reading or information access to persons with a disability on a non-profit basis; or (b) a government institution or non-profit organization that provides education, instructional training, adaptive reading or information access to persons with a disability as one of its primary activities or institutional obligations.”.
PASA Submission: While we welcome and support the addition of the definition of ‘authorized entity’, which closely follows the ‘Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled’, we wish to point out the following: 1.
The rest of the definition in the ‘Marrakesh Treaty…’ should be added, with the necessary adaptations: ‘An authorized entity establishes and follows its own practices: ‘(i) to establish that the persons it serves are persons with a disability in terms of the definition above; ‘(ii) to limit to persons with a disability and/or authorized entities its distribution and making available of accessible format copies; ‘(iii) to discourage the reproduction, distribution and making available of unauthorized copies; and ‘(iv) to maintain due care in, and records of, its handling of copies of works, while respecting the privacy of persons with a disability on an equal basis with others.’ 2.
The heading, ‘authorized entity’, does not cover (b) as no mention is made of authorization by government for these entities (a government institution or non-profit organization).

In any case, (a) does not exclude the entities under (b), provided they are authorized.

Also see new subsection (2) under Section 39.
6 Clause 20 – Copyright Section 19D (1) Any person as may be prescribed and that serves persons with disabilities, including an authorised entity, may, without the authorization of the copyright owner, make an accessible format copy for the benefit of a person with a disability, supply that accessible format copy to a person with a disability by any means, including by non-commercial lending or by digital communication by wire or wireless means, and undertake any intermediate steps to achieve these objectives, if the following conditions are met: (a) The person wishing to undertake any activity under this subsection must have lawful access to the copyright work or a copy of that work; (b) in converting the copyright work to an accessible format copy, the integrity of the original work must be respected, taking due consideration of the changes needed to make the work accessible in that alternative format and of the accessibility needs of the persons with disability; and (c) the activity under this subsection must be undertaken on a non-profit basis.
(2) (a) A person to whom the work is communicated by wire or wireless means as a result of an activity under subsection (1) may, without the authorization of the owner of the copyright work, reproduce the work, where that person is— (i) a person with a disability, for their personal use; or (ii) a person that serves persons with disabilities, including an authorized entity, for personal use by a person with a disability.
(b) The provisions of paragraph (a) are without prejudice to any other limitations or exceptions that the person referred to in that paragraph may enjoy.
(3) (a) A person with a disability or a person that serves persons with disabilities, including an authorized entity, may, without the authorization of the copyright owner 7 export to or import from another country any legal copy of an accessible format copy of a work referred to in subsection (1), for distribution or to make it available to persons with a disability, as long as such activity is undertaken on a non-profit basis by that person.
(b) A person contemplated in paragraph (a) may only so export or import where such person knows, or has reasonable grounds to believe that the accessible format copy, will only be used to aid persons with a disability.

(4) The exception created by this section is subject to— (a) the obligation of indicating the source and the name of the author, if it appears on the work, on any accessible format copy; and (b) use of the accessible format copy exclusively by a person with a disability.’’.
PASA Submission: To repeat, while we welcome and support the additional wording and qualifications, which closely follow the ‘Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled’, we also wish to point out the following: The following wording is illogical and contradictory: ‘(1) Any person as may be prescribed and that serves persons with disabilities, including an authorised entity…’ The ‘Marrakesh Treaty…’ deals separately with persons acting on behalf of persons (with a disability) and authorized entities – see e.g.
Article 4.1. and 4.2. of the Treaty.

It would be better to phrase separate conditions for authorized entities and persons acting on behalf of persons with a disability or such persons themselves.
8 Clause 33 – Copyright Section 39 New subsection (2) – current subsection (2) to become (3): “(2) The Minister must make regulations providing for processes and formalities related to the authorization, or recognition, by the government of entities that provide education, instructional training, adaptive reading or information access to persons with a disability on a non-profit basis.
(3) Before making any regulations in terms of subsection (1) or (2), the Minister must publish the proposed regulations for public comment for a period of not less than 30 days.’’.

PASA Submission: We welcome the addition of new subsection (2).

9 2.
9 2.

PERSONAL COPIES Clause 1 – Copyright “‘lawfully acquired’ means a copy which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift and does not include a copy which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the copy;”.

PASA Submission: ‘Lawfully acquired…’ is a welcome clarification.
Meanwhile there should be no definition of or use of the term ‘lawful copy’.

The term should hence be ‘lawfully acquired copy’.

Should it become necessary at all, which PASA believes it is not, then it would be better to define ‘unlawful copy’ as an ‘infringing copy or article’, a term that is already used in the existing Copyright Act of 1978.

PASA would be happy to contribute to any wording that reduces inconsistencies, confusion and uncertainty resulting from this fresh layer of proposed amendments.
Again, whilst the above definition of ‘lawfully acquired’ is very necessary and welcomed by PASA, it should perhaps for avoidance of doubt be clarified that as a recipient of a ‘gift’ one only is engaged in a lawful acquisition, if one does not know, nor ought reasonably know that the so-called ‘gift’ is actually stolen or illegally reproduced or made available as third-party intellectual property.
In other words, being gifted, stolen property is no absolution from the obligation to act responsibly and does not provide a shield from liability in relation to the lawful owner.

10 3.
TECHNOLOGICAL PROTECTION MEASURES Clause 1 – Copyright “‘technological protection measure’ means any process, treatment, mechanism, technology, device, product, system or component that in the normal course of its operation is designed to prevent or restrict the infringement of copyright in a work; “‘technological protection measure circumvention device or service’ means a device or service— (a) primarily designed, produced or adapted for purposes of enabling or facilitating the circumvention of a technological protection measure; (b) promoted, advertised or marketed for the purpose of circumvention of a technological protection measure; or (c) with a limited commercially significant purpose or use other than to circumvent a technological protection measure”; and”.
PASA Submission: (c) needs to be deleted.

We welcome that the definitions have been revised.

However, the definitions are still insufficient to meet the requirements of Article 15 of WCT, Article 18 of WPPT and Article 15 of the Beijing Treaty, which all require ‘adequate legal protection’.

For example, the definition of ‘technological protection measure circumvention device’ focusses on whether a device is ‘primarily’ designed, produced or adapted for the purpose of circumvention.
This will create loopholes for infringers, in that the definition is inadequate if the device is still deliberately designed with such a purpose as a feature.

All the TPM provisions must be consistent with the WCT, WPPT and Beijing Treaties, especially the Beijing Treaty ‘Agreed Statement’ on who and under what circumstances TPMs may be circumvented.
This is a potentially unconstitutional matter as a ‘licence to hack’ through TPMs is tantamount to an invasion of property and unconstitutional if not reasonable and for full compensation and with attribution or credit.

11 The provisions as currently crafted are likely to cause significant diplomatic stress to South Africa for violating international practice.

12 4.

EXTENDING DIGITAL RIGHTS TO PUBLISHED EDITIONS AND COMPUTER PROGRAMMES New clause Amending sections 11A and 11B Section 11A 11A.
Copyright in a published edition vests the exclusive right to make or to authorize the doing of any of the following acts in the Republic: (a) [making] Making of a reproduction of the edition in any manner; (b) communicating the work to the public by wire or wireless means; (c) making the work available to the public by wire or wireless means, so that any member of the public may access the work from a place and at a time chosen by that person; and (d) distributing the original or a copy of the work to the public.
PASA Submission: PASA supports these proposals strongly as they are consistent with the extension of the new exclusive rights.

13 5.
OFFENSES FOR TPMS AND DIGITAL RIGHTS Clause 27(a) Section 27 New (5A) in respect of digital rights (5A) Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright and for commercial purposes— (a) communicates the work to the public by wire or wireless means; and (b) makes the work available to the public by wire or wireless means, so that any member of the public may access the work from a place and at a time chosen by that person, which they know to be infringing copyright in the work, shall be guilty of an offence.
PASA Submission: PASA supports these proposals.
Subsection (5A) to be (5B) and a new (5C) (5B) Subject to section 28P, any person who, at the time when copyright subsists in a work that is protected by a technological protection measure applied by the author or owner of the copyright— (a) makes, imports, sells, distributes, lets for hire, offers or exposes for sale or hire or advertises for sale or hire, a technological protection measure circumvention device or service if— (i) such person knows, or has reason to believe should reasonably have known, that that device or service will or is likely to be used to infringe copyright in a work protected by an effective technological protection measure; (ii) such person provides a service to another person to enable or assist such other person to circumvent an effective technological protection measure; or 14 (iii) such person knows, or has reason to believe should reasonably have known, that the service contemplated in subparagraph (ii) will or is likely to be used by another person to infringe copyright in a work protected by an effective technological protection measure; (b) publishes information enabling or assisting any other person to circumvent an effective technological protection measure with the intention of inciting that other person to unlawfully circumvent an effective technological protection measure in the Republic; or (c) circumvents such an effective technological protection measure when he or she is they are not authorized to do so, shall be guilty of an offence and shall upon conviction be liable to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment.
(5C) Subject to section 28S, any person who— (a) in respect of any copy of a work, remove or modify any copyright management information; or (b) make, import, sell, let for hire, offer or expose for sale, advertise for sale or hire or communicate to the public a work or a copy of a work, if the copyright management information in respect of that work or copy of that work, has been removed or modified without the authority of the copyright owner, shall be guilty of an offence.
PASA Submission: Regarding section 28P: The definition of TPMs and circumvention devices has improved following the latest round of changes.

However, PASA still considers 28P to be insufficiently complying with international treaties.

28P allows for circumvention for the purposes of enjoyment of exceptions, and dealing with devices for the same purposes.

That would create a market for hacking devices.


This is also contrary to the Agreed Statement of the ‘Beijing Treaty Protecting Audio-Visual 15 Performances’, but would apply to other categories of rightsholders with equal force.

The Agreed Statements to Articles 13 and 15 of ‘Beijing’ must be adhered to.
The bar for an infringement for circumvention of the dealing with devices is too high, in that it requires that the one offering the devices or service knew or should have known that they were used to infringe rights, whereas already the offering of devices or services should constitute a criminal offence.

The knowledge of use to infringe rights is in practice almost always absent and even the imputed knowledge standard ‘should have known’ is too high.

The mere offering of devices or services is enough.
Note that verbs in (5C)(a) and (b) should be in the singular form.

16 6.

MAKING THE FAIR USE FACTORS APPLICABLE TO OTHER EXCEPTIONS Clause 13 12A(d) – New paragraph “(d) The exceptions authorized by this Act in sections 12B, 12C, 12D, 19B and 19C, in respect of a work or the performance of that work are subject to the principle of fair use, determined by the factors contemplated in paragraph (b).”.
PASA Submission: PASA disagrees with the introduction of ‘fair use’ in the way the concept is proposed in the Copyright Amendment Act through the ‘hybrid fair dealing / fair use’ model.

We therefore note with concern the explicit addition of ‘fair use’ to the sections mentioned, even though we admit that an attempt is probably being made to explicate and limit the application of ‘fair use’ in the sections mentioned.
However, this merely extends bad practice: Instead of limiting users’ options (as seemingly intended), the scope for unauthorized use is widened.

The crucial aspect to be removed is the way ‘fair use’ is introduced.

After having put ‘fair use’ on the shelf, there needs to be in place a 1. proper socio-economic impact assessment 2. legal evaluation 3. policy foundation.
PASA maintains that the Copyright Amendment Bill proposes the introduction of new exceptions of a general nature, rather than work-specific ones, as well as an unprecedented broad range of specific exceptions.

We commented extensively on these matters in our submission to the Portfolio Committee dated 16 July 2021.

We summarise our views below, but we kindly refer you to our full submission of 16 July 2021.

Currently, a work may only be used, without permission, for a closed list of purposes.
Under the Amendment Bill, copyright owners will not be entitled to remuneration whenever their work is used for a purpose similar to those actually listed in section 12A(a).

Section 12A in the Bill clearly is not about introducing ‘fair use’, as it is understood in the United States and the few other countries in the world that have this statutory defence to copyright infringement.
In addition to the unpredictability of ‘fair use’, to its weak generalizability and to the costs and time involved in litigation, the danger exists that ‘fair use’ creates an opening for courts to determine public policy and decide what is in the public interest.

Courts will hereby appropriate the exclusive powers of parliament and the executive to do so.

We refer you to 17 the seminal critique of ‘fair use’ by Professor Sadulla Karjiker, ‘Should South Africa adopt fair use?
Cutting through the rhetoric’.

Professor Karjiker refers to, ‘…the fundamental concern that fair use amounts to giving the courts – with all due respect to judges – the right to determine public policy in the realm of copyright law…there is no peer- reviewed research in South Africa indicating why fair use, as proposed by the Bill, would be consistent with South Africa’s obligations under the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights.
Given the clear language of the three-step test, and how different our legislative history and systems of litigation are from those of the United States, it is submitted that there has to be a proper legal basis for the introduction of fair use in South Africa.
That simply has not been provided.’ This article is included in the collection by Professor Owen Dean, A Gift of Multiplication, which can be read here: https://juta.co.za/uploads/The Gift of Multiplication Essays Amendment Bill/ ‘Fair use’ as contemplated in the Amendment Bill, holds a material risk of South Africa coming into conflict with its obligations under the Berne Convention and TRIPs, and also that South Africa will not be ready to accede to the WIPO Copyright Treaty.

18 7.
ADDING THE WORDING OF THE THREE STEP TEST Clause 13 Section 12D “(1) Subject to subsection (3), a person may make a reproduction of a work, including the use of a lawful copy of the work at a different time or with a different device owned by that person, or may broadcast it, for the purposes of educational and academic activities: Provided that— (a) the extent of the reproduction or the portion of the broadcast shall be compatible with fair practice; (b) a reproduction may only be made in the cases stipulated in this section; (c) the reproduction does not conflict with the normal exploitation of the copyright work; and (d) the reproduction does not unreasonably prejudice the legitimate interests of the copyright owner flowing from their copyright in that work.
PASA Submission: We welcome the addition of the Three-step Test.

However: 1.

The Three-step Test should be inserted in all provisions setting out exceptions and limitations.

Alternatively, a separate, covering section should contain the verbatim Three- step Test.

2.

The exact Berne wording must be used.


This should be done verbatim as per Article 9(2) of the Berne Convention, permitting ‘…the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’.
There should be not only no deviation from the exact wording in the Berne Convention, but also the character of the Three-step Test as the yardstick by which exceptions are measured must be maintained.
Thus, it is not good enough to postulate that the scope and contour of an exception is a ‘special case’ or ‘does not conflict with a normal exploitation’, or 19 does not ‘unreasonably prejudice the legitimate interests of the author’; the provision to be inserted must be couched in such a way that each and all particular exceptions only apply to the extent they pass muster under the yardstick of the Three-step Test.

Re.

12D(1)(b): The Legislator may decide to include as many cases as it wishes to.
However, listing cases in legislation does not make such cases into ‘special cases’ as intended in Article 9 of the Berne Convention (the ‘Three Step Test’).

The Legislator currently supplies neither a socio-economic assessment study, a legal analysis, nor a policy foundation to prove that the wide exceptions are warranted as ‘special cases’, i.e.
cases that cannot be serviced by South Africa’s well-established and sophisticated publishing and distribution services to provide adequate access to information and knowledge.

To reiterate, each and every exception needs to be evaluated for constitutionality and treaty-compliance.

For more information see the advice by a member of the Panel of Experts to the Portfolio Committee at: ‘4.
Treaty compliance – “Fair use”, new copyright exceptions, coupled with contract override: compliance with Berne, TRIPs, WCT, WPPT and the Beijing VIP Treaty’ – available at: http://legalbrief.co.za/media/filestore/2018/10/andre myburgh.pdf.

Seeing that this advice was delivered at the formal request of the previous Portfolio Committee, the current Portfolio Committee is bound to consider the advice as a part of all submissions to your Committee.
Although Section 12D(3) is not ‘blue text’, it is such an important issue that we comment as follows: It is at odds with international treaties and with the provisions of 12D(1) and 12D(4).
Section 12D(3) needs to be reworded and narrowed as follows: ‘Educational institutions shall not incorporate extracts as envisaged under Section 12D(1) or the whole or substantially the whole of a book or journal issue, or a recording of a work, as envisaged under 12D(4), unless a licence to do so is not available from the copyright owner, collecting society or an indigenous community on reasonable terms and conditions.’ (clarified new text in bold) 20