Will the South African IPR from Publicly Funded Research and Development Bill Affect Documentary Filmmakers?

Marynelle Wilson
October 9, 2008

The current IP bill before the South African parliament, Intellectual Property Rights from Publicly Funded Research and Development ("IPR") Bill, aims to encourage South African innovation by providing public funding and managing IP to allow both protection and commercialization for "the benefit of society." The IPR bill implicitly applies more to scientific and technological innovation than to creative expression; an earlier version of the bill defined "intellectual property" as "non-patentable and patentable inventions, and one or more of copyright, designs, trademarks, in as far as they are an integral part of such inventions," and Schedule 1 attached to the bill lists included institutions, most of which focus on scientific research. However, the current definition of "intellectual property in the bill is broader, reading:

any creation of the mind that is capable of being protected by law from use by any other person, whether in terms of South African law or foreign intellectual property law, and includes any rights in such creation, but excludes copyrighted works such as a thesis, dissertation, article, handbook or any other publication which, in the ordinary course of business, is associated with conventional academic work.

This definition may or may not encompass documentary films; it is unclear whether films or cinematographic footage would be considered "conventional academic work."

Under the bill, IP borne from publicly funded research and development will be owned by the recipient rather than the inventor or creator, similar to the "work for hire" provision in U.S. copyright law, although the bill does reserve some revenue rights for creators. The bill probably has little impact on documentary filmmakers' rights in terms of ownership, unless the documentary was commissioned and funded by a public entity.

The IPR bill could be beneficial documentary filmmakers because of its emphasis on using IP for public benefit. Section 11 addresses IP licensing and includes provisions requiring that recipients give preference to non-exclusive licensing, small enterprises, and "parties that seek to use the intellectual property in ways that provide optimal benefits to the economy and quality of life of the people of the Republic," among others. If film and broadcasting footage is implicated under the IPR bill, the bill could improve filmmakers' access to information. Even if the bill does not implicate copyright licensing relevant to documentary filmmakers, it might indicate some form of government action towards less restrictive IP rights and imply better prospects for amendments to the Copyright Act.

Full text of the IPR from Publicly Funded Research Bill

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