Exactly ten years ago, on 10 December 2013, the Intellectual Property Laws Amendment Act, commonly referred to as “IPLAA”, was published as an Act of Parliament assented to by President Jacob Zuma. It was to take effect from a date to be promulgated by the President. Ten years later, that has not happened.
In the light of the controversies swirling around the Copyright Amendment Bill, it might be worthwhile looking at IPLAA to see if any lessons can be drawn from it.
Like the Copyright Amendment Bill, IPLAA is the product of the Regulation Division of the Department of Trade Industry and Competition (DTIC), and it, too, was shepherded through the National Assembly by the Portfolio Committee on Trade Industry and Competition.
The Copyright Amendment Bill has been in process for 6 ½ years now; IPLAA, introduced as a bill in 2010, took 3½ years to be passed. Both bills were the subject of heavy criticism by academics, business, and the legal fraternity. Both were delayed by their being reintroduced to the National Council of Provinces to serve before the Provincial legislatures following concerns by the President – President Zuma in the case of IPLAA and President Cyril Ramaphosa in the case of the Copyright Amendment Bill – that the correct procedure prescribed by the Constitution had not been followed.
IPLAA sought to establish rights of copyright for traditional works, that include literary, musical or artistic works with an indigenous origin. The exclusive rights for traditional works are far more expansive than the existing exclusive rights of copyright in literary, musical and artistic works. IPLAA allocates 13 exclusive rights to traditional works, whereas the Copyright Act currently has only 7 for literary and musical works and 6 for artistic works, and, after its amendment, will have 10 and 9 respectively.
IPLAA’s amendments to the Copyright Act were introduced and passed despite the rules of copyright being a very poor fit for traditional works.
Copyright requires a work qualifying for protection to be original, reduced to material form, and made by an author, who would usually be a natural person. On the other hand, an indigenous work might have existed for time immemorial, only needs to ‘be capable of substantiation from the collective memory of the relevant indigenous community’, and its authorship and ownership are granted to an indigenous community, which itself is not capable of objective fixed identification and which does not even need to exist anymore. The term of copyright for literary, musical and most artistic works is the life of the author plus fifty years; for an indigenous work, it is indefinite.
The commercial use of a traditional work is subject to a royalty or other benefit as determined in advance in terms of a benefit sharing agreement after the indigenous community’s prior informed consent has been obtained. A benefit sharing agreement can be suspended for re-negotiation if it is not to the benefit of the originating indigenous community. In this sense, the use of traditional works is subject to uncertainty and more onerous conditions than the use of other works which are subject to copyright.
In a moment of hubris when the IPLAA bill was first passed by the National Assembly in 2011, Portfolio Committee chair Joanmariae Fubbs said ‘Yes, [IPLAA] is [the] source of significant investment and lucrative expectations. For example only the architects benefitted from the First National Bank calabash World Cup Soccer Stadium design. However under this piece of legislation all the communities who can trace the calabash as intrinsic to their culture can benefit through a National Trust Fund.’ But these expectations have never come to pass. The bill would take another two years to get the President’s signature, and a decade after that it was still not operational.
Far from encouraging South Africa’s indigenous culture to be celebrated in a fair way, IPLAA will, in the words of the late IFP MP Mario Oriani-Ambrosini, ‘have a chilling effect. People are not going to touch it.’
After IPLAA was signed into law, a law to protect indigenous knowledge, the Protection, Promotion, Development and Management of Indigenous Knowledge (“IKS”) Act was introduced by the Department of Science and Technology (DST) as a bill in 2016. Despite its similar objects, the IKS Act works very differently from IPLAA. It was assented to by the President in 2019, although it, too, is not yet in operation, pending finalisation of its regulations.
In the meantime, IPLAA has stalled. An attempt by the DTIC to write its regulations in 2014 went no further. Even in the DTIC, the appetite for this law seems to be waning. The Deputy Director General of the Regulation Division told the Portfolio Committee in 2018 about “constitutional mechanisms” needed to support IPLAA while her department was working with the DST on the IKS Bill.
Last year, the Deputy Director General told the Portfolio Committee about an unfavourable legal opinion on IPLAA that the DTIC had obtained in 2020. A couple of options were on the table, one of which was to repeal it altogether.
The Copyright Amendment Bill has no independent legal opinion backing it; indeed, it does not even have a proper impact assessment. The lesson of IPLAA is that these enquiries must be made before introducing a bill, not after it has been passed.
Today, ten years on, there seems to be no prospect that IPLAA will ever come into force. IPLAA makes numerous changes to the Copyright Act, and, with IPLAA having been signed into law but not in effect, any later amendments reforming the Act will have to navigate the amendments introduced by IPLAA which are not yet operational.
This means that if amendments to the Copyright Act were to be passed, it would be very difficult for anyone to make sense of what parts of the Act are in force and what are not. Unless something is done, this confusing situation could exist indefinitely.
Like the Copyright Amendment Bill, IPLAA was high in good intentions, short on implementability, and full of provisions that will harm the very objects it intends to achieve. IPLAA at least had a safety valve that the President could put the law into operation once the time was right, but the inaction over the past ten years indicate that the time will never be right.
Unlike IPLAA, the Copyright Amendment Bill must take effect at most two years after the President signs it into law. With the Bill having far more consequences for the country than IPLAA, this provision is sure to focus peoples’ minds on how the Bill will really impact South Africa.
André Myburgh is an attorney who specialises in copyright policy and legislation. He was a member of the Portfolio Committee’s panel of experts for the Copyright Amendment Bill in 2018 and is the lead author of a book on the topic, Copyright Reform or Reframe? (Juta, 2023).