Dispossessing Lucky Dube's heirs

Andrew Donaldson writes on mad DTI plans to take control over a person's copyright the moment they die

THREE years ago I was commissioned to write a shortish book on The Spear, the moving portrait of President Jacob Zuma by the Cape Town artist Brett Murray, as part of a bold venture into uncharted waters by Tafelberg, the publishers, who wanted to issue a series of topical, digital-only titles.

I don’t believe many people have even heard of Heart of Dickness. When I last checked, it was ranked 2 447 185 on Amazon.com’s best seller list. These things do take time, I suppose, and one still lives in hope.

But one person who has read it is British novelist Nicola Barker (In The Approaches and The Yips, among others). She was kind enough to inform readers of the Financial Times that it was “an utterly fascinating, dry, funny and at points rather sobering investigation into the conflict between creative expression and human dignity in the post-apartheid era.”

I mention all this because government is now suggesting that my moral and intellectual property rights to Heart of Dickness and any other book I may write be handed over to the state the moment I die. 

This utterly stupid and criminal proposal – outlined in the Copyright Amendment Bill, and gazetted last month for public comment – is a blatant violation of the Berne Convention, which is endorsed by 168 countries, including South Africa.

This treaty states the “term of protection” or copyright conferred on literary and artistic works is “the life of the author and 50 years”. Furthermore, in terms of the current legislation, copyright can be passed on – like movable property – by testamentary disposition to an artist’s heirs. 

This allows artists and authors’ spouses, children or other legatees to benefit from the copyright in their works for a full 50 years after they’ve passed away. Thereafter, the work passes into the public domain and may freely be used by others in what is seen as a balance between the interests of the author or artist and society in general.

But now it’s envisaged that the state takes immediate control of the copyright – and it is government, not the heirs of artists and authors, who will be able to derive income from their work and to grant licences, against the payment of royalties, for the reproduction of that work. 

Think of it this way. On the evening of October 18, 2007, the reggae singer Lucky Dube was shot dead in a hijacking outside a relative’s home in Rosettenville, Johannesburg. That then would have been the moment that the state took control of the musician’s intellectual property rights were these proposed changes to copyright law on the statute books. 

All royalties from the sale of Dube’s music, as well as various licencing and broadcasting agreements, would then go to government – and not to Dube’s estate. His family would then be denied the fruits of his labour. They’d have been robbed not only of a breadwinner – but also the bread.

As it is, those who release and distribute Dube’s music here and abroad have issued a number of fine compilation albums since his murder. Who would have put these collections together had the state been the copyright owner? 

Would it have gone out to tender, or would such projects be handled by flunkeys at the Department of Trade and Industry? Could you imagine the minister, Rob Davies, as the music publisher of, let’s say, Brenda Fassie’s back catalogue? Or overseeing the reissuing of Andre Brink’s novels? 

The potential for disaster would be huge. The man can barely dress himself. (How odd, then, to see Davies at a clothing factory in Maitland this week, risking an industrial accident by messing about with a sewing machine. Here at the Mahogany Ridge, we feared he was about to sew his left hand to the hem of a pink skirt.)

As it so happens, the DTI are the bill’s authors and, consequently, it’s a mostly incomprehensible mess. This is according to the Anton Mostert Chair of Intellectual Property Law at Stellenbosch University.

The use of language and grammar is poor and it is riddled with editorial errors,” they said. “It is full of contradictions and anomalies and it pays scant regard to many of the basic principles of copyright law (and indeed other laws). It is also at variance with the South African Constitution in many respects… 

“It is ill-conceived and very badly executed, [which makes] … the document a very poor basis for conducting any meaningful discourse on what the Bill is actually seeking to achieve.”

This won’t do. If authors works are to be stolen when they die, then please, let the thieves at least be vaguely literate.

This article first appeared in the Weekend Argus.