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Sifiso Skenjana: Why loopholes in the Copyright Amendment Bill matter so much

Apr 02 2019 06:00
Sifiso Skenjana

The first version of the Copyright Amendment Bill was released in 2015 by the department of trade and industry. Feedback submitted saw a revised bill published in 2017, based on the need for a review of the 1978 Copyright Act and its regulations.

The National Council of Provinces on Thursday adopted the controversial bill – among several others – and it will now be sent to President Cyril Ramaphosa for possible sign-off.

The bill in its current shape has received widespread criticism from various artists, industry bodies, intellectual property law experts and others. The pushback is a clear indication of democracy at work.

More impressively, an incredibly diverse body of contributors have made their voices heard on the potential pitfalls of the proposed bill, more than we have seen of late regarding many bills – active citizenry at work.

Why property rights matter

There is sufficient literature that finds a positive relationship with R&D and Foreign Direct Investment (FDI), with Mansfield (1995) authoring one of the seminal papers on this topic.

So, too, Miletkov and Wintoki (2012) find that the financial development of economies is positively associated with a strong protection of property rights. And Johnson, McMillan and Woodruff (2002) also found that weak property right discouraged firms from reinvesting their earnings.

Why does this matter?

There is unambiguous proof of the importance of strong property rights for investment, economic growth and research and development. Sub-Saharan Africa has historically been a laggard against its global counterparts in the protection of physical and intellectual property rights.

Despite some reforms having been implemented over the years towards strengthening property rights in the region, Africa still ranks lowest on according to the International Property Rights Index. Domestically, we cannot excel in property rights protection, despite ranking higher than the continental average. 

Flaws in the bill – reversing progress

Dissent has come in favour of a relook into the bill because of the damage that it may directly or indirectly cause to various industries and its participants.

The objections to the bill are broad, citing how it may cause job losses, disincentivise investment, cripple publishing, "rob" artists and creatives of royalties and other revenues for their original works, etc. – the list goes on.

South Africa still has fledgling entertainment, literature, science and technology sectors in terms of how much they contribute to the country’s GDP, and the country can ill afford to erase the economic progress those sectors have made to date by implementing a bill that fails to fully consider the widespread implications.

Innovation can only thrive in an environment that ensures protection of the value that is brought by that innovation. Nkosana Makate has been in a court battle with Vodacom for over a decade, and the case is yet to be settled.

These are the case studies that must remind the country that not only do we have brilliant minds in our citizens, but many fear their ideas being stolen – so they may keep quiet and die with their innovations and creativity.

Earlier, I used the academic referencing style to emphasise some of the referencing and anti-plagiarism standards that must be maintained to protect and recognise producers of original content.

Section 12D in the Bill leaves room for unabated plagiarism of content "for academic purposes" as long as the content doesn’t exceed a certain length, which can still be argued in court.

Impact on competition

There is an often conveniently ignored relationship between intellectual property rights and competition law. Poor enforcement of competition law allows big corporates to bully their way through the knowledge economy.

With this in mind, the proposed copyright amendment bill ought to find harmony with the Competition Amendment Bill, which was signed into law in February this year. The amendment introduces economic inclusivity for small and medium businesses in the market place.

Key themes that come out include, but are not limited to, buyer power, price discrimination, firm mergers and penalties.

For the Copyright Amendment Bill to truly embrace the spirit of inclusivity, growth and sustainability, it must work with the bills that will give it a sharper set of teeth – both in protecting and economically recognising industry participants.

Sifiso Skenjana is founder and financial economist at AFRA Consultants. He specialises in economic policy research, investment strategy and advisory services. He is currently pursuing his PhD. Views expressed are his own.

Follow him on Twitter: @sifiso_skenjana

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