South Africa Draft Policy on Intellectual Property rejects giving ownership interest in copyrighted works to broadcasters

On 4 September 2013, the Department of Trade and Industry (the DTI) of the Republic of South Africa released its long-awaited “Draft National Policy on Intellectual Property“. This policy framework was gazetted in the Government Gazette as Vol. 579, No. 36816. Public comments will be accepted until 17 October 2013.

This document deals with many aspects of intellectual property including: 1) IP and public health, 2) agriculture and genetic resources, 3) IP and indigenous knowledge, 4) IP, competition, public-policy making, compulsory licensing and technology transfer, 5) copyright, software and internet, 6) patent reform, 7) institutional capacity, 8) international architecture, 9) IP and development, 10) IP and sporting events, 11) IP of the state, 12) drivers of the IP policy 13) and enforcement of IP.

The draft IP policy’s treatment of patentability criteria will no doubt be the subject of intense scrutiny; this piece however, focuses on the DTI’s recommendations on global efforts to negotiate a legally binding treaty for the protection of broadcasting organizations.

With respect to the protection of broadcasting organizations, the draft national policy states:

In the area of broadcasting, the broadcasters want to own the content of their broadcasts. This means that if the SABC broadcasts a song such as Mbube to the Russian counterpart, the SABC would like to be the copyright owner of Mbube. There is an outcry against this proposal at an international level (WIPO), where formulation of a treaty is taking place. South Africa is not supporting the proposals by the broadcasters. The means of communication should not affect the ownership of rights, and rights must always reside with the original owner unless they are sold/transferred/assigned legally.

In its recommendations, the DTI unequivocally states that:

South Africa should not support the development of a treaty that seeks to give ownership of contents of broadcasts/webcasts to broadcasters.

While this does not preclude South Africa’s support for the development of a signal-based approach to combat signal theft, this policy framework clearly calls upon South Africa to reject the development of a broadcast treaty that would confer upon broadcasting and cablecasting organizations copyright like rights for the mere transmissions of signals.