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Wednesday, 30 September 2015

Can the State automatically acquire ownership of your copyright? In South Africa this may become the case

Nedim Malovic
Have you ever come across a copyright law that provides that the State automatically acquires ownership of copyright in a certain work upon death of the relevant owner?

This appears to be what South African (SA) Government may have in mind (unless all this is just a result of bad inaccurate law drafting) with one of its proposed amendments to this country’s copyright law.

This blog is delighted to host the following analysis by IP enthusiast and Katfriend Nedim Malovic (Stockholm University), who explains what this proposal is all about.

Here’s what Nedim writes:

“The South African (SA) department of Trade and Industry is proposing a fairly controversial amendment to its current copyright legislation, possibly enabling the transfer of copyright ownership to Government following the death of the relevant owner.

Under the current wording of section 3(2) of the SA Copyright Act 1978, the author of a literary, artistic and musical works enjoys copyright protection for a term of life plus 50 years. Copyright ownership may also be assigned under section 22(1) of the SA Copyright Act 1987, which provides that “copyright is transmissible as movable property by testamentary disposition [to the owner’s heirs]”. This allows such heirs to continue benefiting from copyright protection for a full 50 years term after the death of the author.

At the end of last month the Copyright Amendment Bill 2015 was published for comment by the Department of Trade and Industry in the SA Government Gazette. The predominant feature of this draft bill [for other features, see
here] is probably the proposal to amend the current wording of section 21 (which concerns ownership) in the SA Copyright Act 1978. This amendment is contained in section 25 of the 2015 Bill and proposes to add the following new subsection after subsection 2 of section 21:

“Ownership of any copyright whose owner cannot be located, is unknown, or is deceased shall vest in the state: Provided that if the owner of such copyright is located at anytime, ownership of such copyright shall be conferred back to such owner.” (emphasis added)

Transfer of (pizza) ownership in progress
In summary, the proposed amendment – as currently drafted – would transfer copyright ownership in works to the SA Government not just when dealing with orphan works, but also in the event that the copyright owner is deceased.

This is reinforced by section 26 in the proposed Copyright Amendment Bill which contains an amendment to current section 22(1) of the SA Copyright Act 1987:

By the substitution for subsection (1) of the following subsection: “(1) Subject to the provisions of this section, copyright shall be transmissible as movable property by assignment, testamentary disposition or operation of law [.]: Provided that, copyright owned by, vesting on, or under the custody of the state may not be assigned.”

If the proposal of the SA Department of Trade and Industry was adopted, this would result in the Government acquiring ownership of the copyright in a certain work upon the death of the relevant owner for the remainder of the term of protection (including the right to any relevant royalties), in lieu of the owner’s estate.

Nothing left for successors in title,
not even royalties
Besides the practicalities of how such regime would actually work, there might be issues of compliance with – among other things – international law. Although the Berne Convention (Berne) does not deal with issues of ownership and exploitation of rights (with the exception of cinematographic works), Article 2(6) Berne (to which South Africa is bound) provides that “The works ... shall enjoy protection in all countries of the Union. This protection shall operate for the benefit of the author and his successors in title.” (emphasis added)

It would appear that the proposed law would remove the "successors in title” from the chain of copyright ownership. If so, then it could be argued that SA copyright law, as amended, might be in breach of the minimum standards set by Berne.

While some laws envisage a role of the State in the enforcement of copyright, an example being moral rights in those jurisdiction that conform to the droit d’auteur model and provide perpetual protection, it is likely that the proposed SA amendment consisting of transferring copyright ownership automatically upon death could be – to say the least - an unprecedented move.  

A possible underlying intention (motive) behind the proposed amendment might be that the SA government would seek to generate revenue for itself. In any case, as is apparent from section 26 of the Bill, the SA Government would be prevented from assigning any copyright obtained upon death of the relevant owner.

Overall the underlying rationale for all this appears difficult to appreciate fully. We shall thus see whether the Copyright Amendment Bill will actually be passed in its current form.”

Thanks for your explanation, Nedim. Are readers aware of any initiatives elsewhere similar to the SA Government one?


Naomi Bruwer said...

The amendments proposed by the Department of Trade and Industry (DTI) has cause quite a stir among IP academics and professionals in South Africa. The deadline to submit comments closed on the 16th of September. I know that many stakeholders have proposed that the draft Bill should not be amended but that it would be far better if it was completed scrapped and drafted anew - preferably by someone that actual has some IP knowledge. Many elements of the Bill is poorly drafted and some clauses propose ludicrous amendments. One can only wait in anticipation to see if the DTI actual incorporate any of the proposals/comments into the Bill as they do have a track record of merely ignoring any submissions.

Anonymous said...

Well, there is the prominent example of Mein Kampf, whose copyright went to Bavaria upon the death of the author. Of course, this was for political reasons (avoiding Nazi propaganda after the war).


Andy said...

The reference to what happened with Mein Kampf is slightly misleading, since while a political motive is likely, it was in fact pretty much what Hitler directed in his Will: "What I own belongs - as far as it is of any value - to the [National Socialist] Party. Should the party no longer exist, it will belong to the state ..." (Translation by US Military Intelligence: <a href="></a>).

In fact under current UK law (section 90 CDPA) on the death of the author copyright passes by "testamentary disposition or by operation of law", meaning that in the case of someone in England or Wales who dies intestate and without living relatives, their copyright passes to the Crown (in bona vacantia) or the Duchies of Cornwall or Lancaster depending on the abode of the author at the time of death. The system in Scotland is largely the same.

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