The Department of Science and Technology has raised concern over a provision in the Copyright Amendment Act that would vest copyright in the state where the state funds the person or organisation creating the work.
In a submission to Parliament’s trade and industry committee, the department said that this provision would have “serious implications for all our higher education institutions, science councils and any other publicly financed research institutions as they are all regarded as being publicly financed either through a parliamentary grant or through an allocation from national, provincial or municipal government”.
As research was conducted, it was recorded in a laboratory notebook which, as a work, was eligible for copyright. As copyright applied automatically, the copyright in the laboratory notebook would vest in the state.
Adding to the problem was the provision providing that where copyright was owned, vested in or under the custody of the state, it could not be assigned to anyone else, the department noted during public hearings on the bill held by the committee.
This would mean that the researcher would not be able to produce a publication from the laboratory notebook and would not be able to assign the copyright to a local or international publishing house.
"This has serious implications for all researchers whose curriculum vitae and standing in the academic community is largely recognised by the publications that they produce," the department said, adding that this would also impede the advancement of science and the sharing of knowledge.
The proposal also contradicted the Intellectual Property Rights from Publicly Financed Research and Development Act. It provided that the ownership of intellectual property emanating from publicly financed research and development would be with the recipient of the public funds: for example, a higher education institution, a science council or an individual.
Also of concern to the Department of Science and Technology is the way the proposed bill undermines the rights of communities to their indigenous knowledge.
This would be the effect, for example, of a provision that the ownership of all copyright held by individuals would automatically transfer to the state on their death in the absence of an estate. The department said that in the case of indigenous knowledge, this right should vest in the community in perpetuity.
Furthermore, the resale royalty right (called the artist resale right in other countries) in the bill only referred to individual rights and not collective authorship, as in the case of indigenous knowledge, where communities as a whole should be the beneficiaries of resale royalties.
The application of the "fair use" principle — introduced into South African law for the first time in the bill — could result in the abuse of indigenous knowledge as the prior consent of communities would not be required.
The Department of Science and Technology is the custodian of the national indigenous knowledge systems policy, and has established a dedicated office to implement it. It has drafted a draft indigenous knowledge bill, which has been introduced into Parliament.
In its submission, Aspire Art Auctions urged the introduction of artist resale right for visual artists, which would allow them to benefit from the sale of their work on the secondary market and not only from the initial sale.
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