Mickey Mouse, and South Africa’s battle over copyright

Walt Disney’s Mickey Mouse is no longer protected by copyright. Neither is JM Barrie’s Peter Pan nor AA Milne’s House at Pooh Corner.

In recent years, many older works have entered the public domain in terms of copyright legislation. Copyright laws around the world often deem that copyright expires 50 years from the end of the year in which the work was first made, or in which the author dies, after which the work may be freely used by the public without having to pay for it. When a work is in the public domain, it means there is no longer an owner of the economic rights to that work.

South Africa is no different in this respect.

In South Africa, a well-known example of a work that has become public property is The Lion Sleeps Tonight, which has its roots in Mbube, a song originally written and recorded in 1939 by singer and migrant worker Solomon Linda. In 2012, Mbube fell into the public domain, and the work can be now used without the need for a licence.

Other controversial local examples surround the work of famous singer Miriam Makeba, involving acrimonious exchanges between her grandchildren Zenzi and Lumumba Lee, who established the Miriam Makeba Foundation, and trustees of the ZM Makeba Trust that Makeba herself set up to protect her copyright.

The famous photograph by Sam Nzima of Hector Pieterson being carried by a fellow student during the 1976 Soweto uprising is another case in point. The image was widely circulated but it was only in 1998 that Nzima finally won a long legal battle to own the copyright to the photograph.

Outdated

South Africa’s Copyright Act of 1978, which has been amended nine times since its original enactment – the most recent amendment being in 2002 – has become severely outdated.

The department of trade, industry & competition realised the need to update the act and produced draft legislation, but according to legal firm Spoor & Fisher, the bill was “an abomination”. And although redrafted by a parliamentary committee, the changes were not much better. On legal advice, President Cyril Ramaphosa declined to sign the bill, and drafting had to start afresh.

The Copyright Amendment Bill thrashed out by a select committee in March last year has now been sent to Ramaphosa for signing after the national council of provinces adopted the controversial bill in September 2023.

Read: Why South Africa faces a potential copyright calamity

One of the big issues in the development of the amendment bill was the notion of the US’s “fair-use” doctrine. “We currently have a concept of ‘fair dealing’, which entails reproducing a work in certain circumstances that does not constitute infringement, for instance for research purposes, or if the work is used in an academic study,” said Spoor & Fisher partner Herman Blignaut. “But ‘fair use’ is much broader than what has been made provision for in South African circumstances and could lead to royalties being affected and the authors of such works losing out economically.

“It places copyright owners at the whim of individuals who may, or may not, have any schooling in copyright … and undermines the very foundations of copyright by seriously watering down the exclusive rights of the copyright owner,” he said.

Literary, musical and artistic works; films, sound recordings and broadcasts; and computer programs are all automatically covered by the act once the conditions are met; but the bill’s passage through parliament remains controversial. The department of trade, industry & competition has come under heavy fire for its failure to produce an economic impact assessment study; and the overwhelming majority of local and international creative industry stakeholders are opposed to the bill in its present form.

Norton Rose Fulbright head of intellectual property in South Africa Allison Williams said the bill was passed by the national council of provinces even though it still contains several contentious issues. “Copyright is property,” she said, “and as such you can’t deprive its owners without their consent.”

Even if Ramaphosa signs off the Copyright Amendment Bill, it will likely end up before the constitutional court, either as a referral made by the president or as an independent legal challenge brought by creative industry stakeholders.

Legal firm Adams & Adams believes the bill, contains “arguably the world’s broadest regime of new copyright exceptions and limitations” and that these will “weaken rightsholders’ positions to an all-time and unacceptable low”.

Read: Top authors sue OpenAI over copyright

“It also contains provisions that would severely curtail contractual freedoms, to the extent that South Africa may no longer be seen as a viable international destination for large creative content production projects, including software, gaming, music, advertising, and film and television production projects.”

According to Adams & Adams, the bill fails to deliver on its stated objective of legislating for improved legal protections for South African creatives, and also fails to bring South African law up to date with the digital age.  — (c) 2024 NewsCentral Media

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