South African Copyright Law—the Good, the Bad and the Copyright Amendment Bill
| DOI | 10.1093/jiplp/jpx011 |
| Date | 27 February 2017 |
| Pages | 216-225 |
| Year | 2017 |
| Published By | Oxford University Press |
South African copyright law—the good, the
bad and the Copyright Amendment Bill
Marcus Riby-Smith*
As is the case with many other African countries, South
Africa inherited her first intellectual property laws from
her former colonial masters—the Netherlands and
Great Britain. As the decades passed and South Africa
progressed from a collection of colonies to a dominion
and later a republic, successive revisions of the prevail-
ing copyright law continued to be based on the regime
then in force in Britain.
1
The South African Copyright
Act 1978 (no 98 of 1978) (‘the 1978 Act’), which came
into force on 1 January 1979, is no different. When en-
acted, and throughout much of the 1980s and 1990s,
South Africa’s copyright regime was commonly thought
to compare favourably with legislation enacted in
Western Europe and other developed countries.
However, over the past two decades—while these juris-
dictions have continually updated their laws to keep
pace with global trends and technological develop-
ments—the 1978 Act has received relatively limited
attention from the legislature.
2
This has resulted in
South African copyright law becoming progressively
outmoded.
Furthermore, the 1978 Act and its predecessors have
failed to take account of the fact that South Africa is
(and has always been) a developing country—instead
focussing on an aspiration to emulate European law. As
such, their implementation ignored, among other things,
the culture and customs of indigenous communities and
the local socio-economic environment. Therefore,
though the 1978 Act forms a solid, court-tested founda-
tion on which a modernized regime may be built, it is in
dire need of being brought it into line with contempor-
ary South African technological and social reality.
The 1978 Act’s shortcomings
The shortcomings of the current regime are manifold
and have been explored in detail in various reports,
The author
Marcus Riby-Smith is a South African born,
English qualified solicitor whose practice encom-
passes elements of both copyright and patent liti-
gation. He is an associate at the London office of
Marks & Clerk Solicitors LLP.
This article
In July 2015, the South African Department of
Trade and Industry (the ‘DTI’) published the
Copyright Amendment Bill (‘the Bill’) for public
consultation. A bill modernizing this area of law
had been long-awaited, though the actual publica-
tion of the Bill came as a surprise to most.
The public consultation process attracted com-
ment from a broad range of industry stakeholders,
legal practitioners and academics alike. However,
while some commentators have acknowledged
that the Bill contains some promising modern-
izing provisions, public comments have been
broadly negative, with the poor standard of draft-
ing and the general formulation of the Bill causing
a fair measure of distress and consternation. In
particular, concerns have been raised that the Bill
contains provisions which suggest that the State
will be given ownership of orphan works under a
perpetual term of protection. Additionally, an
idiosyncrasy of the Bill’s wording seems to suggest
that the State will acquire ownership of rights in a
work on the death of the owner in lieu of the
owner’s estate.
This article explores criticisms of the current
South African Copyright Act 1978 (No 98 of
1978) and attempts to unpack the impact that the
Bill may have on what is arguably Africa’s most
important IP economy.
* Email: mriby-smith@marks-clerk.com.
1 The South African Patents, Trade Marks, Designs and Copyright Act
1916 effectively incorporated the ‘Imperial Copyright Act’ of 1911 into
South African law. The South African Copyright Act 1965 (No 63 of
1965) was heavily based on the British 1956 Act.
2 The Act was amended by the following legislation: Copyright
Amendment Act 1980 (No 56 of 1980); Copyright Amendment Act 1983
(No 66 of 1983); Copyright Amendment Act 1984 (No 52 of 1984);
Copyright Amendment Act 1986 (No 39 of 1986); Copyright
Amendment Act 1988 (No 13 of 1988); Copyright Amendment Act 1989
(No 61 of 1989); Copyright Amendment Act 1992 (No 125 of 1992);
Intellectual Property Laws Amendment Act 1997 (No 38 of 1997);
Copyright Amendment Act 2002 (No 9 of 2002); and (to a limited ex-
tent) the Intellectual Property Laws Amendment Act 2013 (No 28 of
2013).
V
CThe Author(s) 2017. Published by Oxford University Press. All rights reserved. doi:10.1093/jiplp/jpx011
Advance Access Publication 27 February 2017
216 ARTICLE Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 3
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