The Dinosaur Status of Copyright

Copyright in South Africa runs the risk of becoming an endangered species and ultimately suffering the fate of the dinosaur. The reason for this unhappy state of affairs is that, like all species which have faded away into extinction in the past, it is failing to adapt to changed and ever changing circumstances. The blame for this must be laid squarely at the door of the government.

There have been several articles in the press in recent times describing the parlous state of the music and record industries in South Africa as a direct result of piracy and counterfeiting of CDs and tapes. The film industry and the computer software industry are not far behind and are essentially in the same boat. The publishing industry, with illegal photocopying of books being rife, is fast becoming a fellow traveller. The ineffectiveness of our current copyright laws and of their enforcement (the two are related) is the dominant contributing force to this unhappy state of affairs. Matters have reached the stage where there have been reports of vigilantly groups of people in the music industry taking the law into their own hands in order to protect their livelihoods.

Copyright is the branch of the law which has the mission of protecting the rights of creative people. The purport of copyright law is to enable creative people to reap the material fruits that their application of effort and talent warrant as a result of the making of their works. In essence, copyright law grants a monopoly to the copyright owner in the performance of certain acts in relation to his work, which acts are essentially the various manners in which the works in question are capable of economic exploitation. Perhaps the foremost of these rights is the right to restrain, or control, reproduction of the works, hence the term, copyright. The current South African Copyright Act, dating from 1978, is inherently a reasonable piece of legislation. In 1978 it could be said to have been “state of the art”. Through the 80s and 90s it was regularly amended and updated in an attempt to keep pace with modern circumstances and in particular technological advances which made copying so much easier and the results of copying of increasingly good and acceptable quality. However, with the dawn of the new millennium this evolutionary adaptation process ground to a halt. One can speculate as to the reasons for this. Whatever they may be, the result is that the law is now outdated and ineffective and is no longer doing its job adequately.

One of the largest obstacles to the enforcement of copyright, and one which is increasingly rendering it impotent, is the practical difficulty of proving subsistence of copyright in a work and the ownership of that copyright. There is no registration system for copyright – it exists automatically provided certain conditions are met. In order to establish copyright in a work, the Act requires that it must be proved by way of admissible evidence (i.e. not hearsay) that the author or maker of the work is a citizen or permanent resident of South Africa or of a country which has been proclaimed under the Act as being a member of the Berne Convention, the international convention which regulates international copyright. Alternatively, it must be shown that the work was first published, i.e. distributed to the public in commercial quantities, in South Africa or in a Berne Convention country. Furthermore, it must be shown that the work is original, namely that it is the author’s own independent product and is not simply copied from an earlier work. This all sounds simple enough, but regrettably it is not so, at least not in practice. This will be illustrated by way of an example.

South African Music Rights Organisation (SAMRO) is an organisation which represents musical copyright owners as far as the control of the public performance of their works are concerned. SAMRO has reciprocal relations with the equivalent organisations throughout the world. In terms of these arrangements SAMRO will, for instance, collect royalties for performances of American musical works in South Africa and conversely its equivalent organisation in the United States will collect royalties for performances of South African musical works. The way in which these organisations work is that composers in their respective countries become members of the organisation and at the same time they assign or transfer that part of their copyright which relates to performance of musical works to the organisation. This enables the organisation to act for the composer, both in collecting royalties and in conducting litigation in the event of infringement. So far so good. A very practical and logical arrangement.

However, let us suppose that SAMRO wishes to bring a copyright infringement case for an unauthorised performance of a work of American origin. SAMRO must adduce admissible evidence by, say, the famous composer John Williams (who has written the musical scores for many famous movies) testifying that he indeed wrote the work in question and did not copy it from elsewhere and that he is an American citizen or permanent resident. If the court proceedings for which the evidence is required is a civil trial or a criminal prosecution, John Williams would have to appear in person before the South African court. One can surmise that this may be difficult to procure. In the event that the proceedings are an application before the High Court an affidavit must be secured from John Williams. This can also apply in exceptional instances in civil trials and criminal prosecutions. It may be difficult to persuade John Williams, who doubtless has many better things to do, to go to the trouble of deposing to an affidavit before a Commissioner of Oaths in the United States of America so that court proceedings can be brought in far flung South Africa because of peculiarities of the South African law which do not apply in most other countries.

Assuming that the co-operation of John Williams can be secured to the extent that he is prepared to travel to South Africa to give evidence in the South African court or is prepared to depose to an affidavit, SAMRO must then show how the American collecting society secured ownership of the performing rights of the musical work in question. In all probability this was done by way of an agreement which would have to be proved before the South African court by a signatory. The next step is to show how SAMRO acquired these rights from the American collecting society. A further agreement would have to be produced and identified by a signatory. The witnesses identifying the agreements would have to appear in person as witnesses in a trial, or alternatively, in the case of application proceedings, would have to make affidavits. Having lined up all of the aforegoing, SAMRO is at last in a position to instigate the court proceedings. This situation as described is but an example of the problems which all copyright owners face in bringing court proceedings to enforce their copyright.

The logistics of putting together all this evidence, and the costs of doing so in view of the complexity of the situation, are nightmarish. It can be done, and has been done in the past, but at what cost and effort? This unhappy situation has been described primarily with reference to civil copyright infringement proceedings. How much greater is the problem when it comes to criminal enforcement of copyright? In this instance the State, namely investigating officers of the South African Police Services and harassed and overworked prosecutors, must put the evidence together. The mind boggles. Imagine that the State, or the copyright owner in civil proceedings for that matter, is faced with the situation where hundreds of pirate CDs have been seized in a raid and it becomes necessary to prove the copyright in the same way in respect of each and every one of the works involved. This virtually defies contemplation. Small wonder that effective enforcement of copyright is very sparse and copyright industries are in their present plight.

Other countries, and notably the United Kingdom, the genesis of our copyright law, have overcome this problem in a very simple manner. The law contains a provision which basically says that where assertions of fact relating to the subsistence and ownership of copyright are made in copyright infringement proceedings, these facts will stand unless they are properly placed in dispute by the alleged infringer. The logistics of proving subsistence and ownership of copyright becomes a relatively simple and swift process thus enabling easy and effective institution of enforcement measures. This system works well in other countries, and notably in the United Kingdom.

The Copyright Act makes provision for the Minister of Trade and Industry, the responsible Minister, to be assisted by an advisory committee. Such a committee is, and has been since 1978, in existence. In the 20th century the advisory committee was very largely responsible for the regular amendments of the Copyright Act during that period and for keeping the law abreast of the times. The Chairman of the advisory committee is required to be, and has over the years been, a judge of the High Court. There have been various judges over the years who have fulfilled this function and these have included eminent members of the bench of the Supreme Court of Appeal, including Mr Justice L Harms, and Mr Justice C Plewman, who are intellectual property law experts. The latter’s term of office expired at the dawn of the new millennium.

During the term of Judge Plewman’s committee various amendments to the Copyright Act aimed at dealing inter alia with the electronic media and the internet, but most pertinently with the introduction of a measure along the lines of the provision in the United Kingdom Copyright Act for simplifying proof of subsistence and ownership of copyright as described above, were put to it. The provision said that statements of fact regarding proof of copyright would stand in court proceedings unless placed in issue by the alleged infringer and this meant adducing evidence which suggested that the facts on which reliance were placed were not correct; a mere denial was insufficient to place the issue in dispute. It is believed that this proposal, along with the others, was submitted to the government with the recommendation that they be adopted but they have simply disappeared in the abyss. Seven years later there is no trace of them, let alone any amendments to the law. Enquiries about the fate of the proposals have been fruitless. Indeed, while prior to the new millennium the Copyright Act was amended virtually on an annual basis, amendments in this millennium have been few and far between, and pressing issues have not been addressed. This is simply not good enough if the law is to remain relevant.

Another example of how copyright law has fallen into dangerous neglect is the question of South Africa keeping up to date with its obligations under the Berne Convention. In terms of the convention, members are required to grant reciprocal protection to the works of all other members. When new countries join the Convention it is required that the works of those new members should become protected works. In order for this to be achieved under our legislation it is necessary that new member counties must be proclaimed as being additions to the list of countries whose works are granted protected status. The list of protected countries has not been updated since 1996. In the meantime, at the last count some 43 additional countries have become members of the Berne Convention. As matters currently stand, works originating from these countries do not enjoy protection in South Africa in clear contravention of South Africa’s obligations under the Berne Convention.

It is time for a serious wake-up call and it is hoped that this article may assist in this regard.

Dr. Owen Dean

SPOOR & FISHER

Date published: 2007/06/12
Author: Dr Owen Dean

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