We all know about state capture, but a different kind of capture has seized the department of trade & industry (DTI). I shall call it "department capture" - a mindset inimical to intellectual property that has been imposed on the department and parliamentary portfolio committee.
This mindset is out to undermine and emasculate a well-established functional legal regime, particularly with respect to the law of copyright.
Intellectual property law seeks to provide an incentive to creative persons to use their talents to create new works, inventions and the like by granting the exclusive right, for a limited period, to use their outputs by commercialising them to obtain due remuneration for their creative efforts.
This exclusive right is granted on condition that, after the lapse of a specific period, the output will fall into the public domain and be free for use by all. In this way the creative efforts of the individual are harnessed to the public benefit.
It is this fundamental principle that has come under attack by the DTI, the government agency that ought to be nurturing it.
The intellectual property right is respected throughout the world. It is specifically enshrined in the Universal Declaration of Human Rights and in various international treaties of which SA is a member. The Constitutional Court has recognised that it is protected under section 25 of the constitution, the so-called "property clause", which is currently also the subject of considerable controversy.
Internationally, there are those who are vehemently opposed to the basic precept of intellectual property and seek to destroy it. They elect not to challenge the right head-on, but rather to undermine it - neutralising the exclusive rights to such an extent that they become worthless.
The government is currently bulldozing an amendment to the Copyright Act of 1978 through parliament. While purporting to grant various new rights to copyright owners, which on the surface may appear to be beneficial, it introduces such extremely wide-ranging exceptions to the exclusive rights of the copyright owner that those rights are seriously undermined.
The current Copyright Act has a closed list of exceptions to copyright protection, which are made in the public interest. But the bill grants the courts a virtually unbridled discretion to make virtually any and all exceptions to protection that suit them, thus causing undesirable legal uncertainty and prejudice to copyright owners.
Though a case can be made for more exceptions, a better approach would be to invite proposals for additional specific exceptions, which could then be debated with stakeholders to arrive at a balanced solution.
This amendment has been about three years in the making. It was drafted and published without any reference to the minister's mandatory statutory advisory committee, which is treated as being decorative. The public was given an inordinately short period to comment on it. The draftsmanship and the muddled thinking were so appalling that the draft bill was barely comprehensible.
In written comments submitted to the DTI and at a public workshop, the draft bill was so severely castigated that it was referred to an "expert committee" to be overhauled. A plethora of critics held that it was so fundamentally flawed it was incapable of being repaired and should be re-drafted from scratch. It was placed before the advisory committee. It is not known what recommendations, if any, the committee made, but the bill reappeared substantially unchanged.
The bill was submitted to parliament's trade & industry portfolio committee in this woeful form.
To its credit, the portfolio committee recognised its abysmal quality, and after expressing its disdain, itself set about patching up the bill. With all due respect to the members of the portfolio committee, few, if any, of whom have any legal knowledge, let alone any expert knowledge of copyright, they were ill-equipped for the task (as were parliament's legal advisers, whose assistance was enlisted). Their product, though marginally better than the DTI's attempt, simply did not pass muster.
Copyright is a technical area of the law. The sensible way of going about amending the Copyright Act would be for the DTI to develop a clear description of exactly what balanced changes it wishes to make to the act and then to mandate a truly expert committee to draft the amendment. Realistically, this committee should be composed of specialist copyright legal practitioners and specialist academics versed in the practical implementation of the law (not mere ivory tower theorists). Such people are available and willing to accomplish the task.
After the portfolio committee's version was published for public notice and received widespread, scathingly critical comment, it too was referred to a "panel of experts". The report submitted to the portfolio committee (which was, astonishingly, kept under wraps) doubtless told the committee largely what it wanted to hear. Yet another version of the bill saw the light of day - the one now on its way through parliament.
The bill before parliament is ideologically skewed and fundamentally flawed in technical and other respects. Its adoption into law will do untold damage to our law of copyright. It has been correctly described by an eminent commentator as befitting a banana republic. It is a travesty that such a defective bill, with mere lip service having been paid to proper consultation, should be placed on the statute book.
The supreme irony is that both the minister and the chair of the portfolio committee hypocritically publicly avow that they are ardent champions of intellectual property and extol its virtues. Words come easily. On the evidence they flatter to deceive.
∗ Dean is a copyright expert at intellectual property law firm Spoor & Fisher..