Important Letter to Authors

Dear Authors

Last year there was much debate about the Copyright Amendment Bill (CAB) which had set out, according to the Department of Trade and Industry, to ‘update’ the Copyright Act of 1978 as amended with the objective, amongst other things, of increasing the incomes of creative workers, including authors,  and of giving readers and learners easier access to their works.

ANFASA sensed a contradiction here. There is truth in the saying that ‘the devil lies in the details’ for if you examine the CAB closely you find that it benefits the user or ‘consumer’ of the created work to a greater extent than it rewards the person who actually made it.

ANFASA took up the fight on behalf of authors whose earnings stand to be reduced if the CAB comes into effect. Despite our efforts, however, the CAB was passed in Parliament, and at the end of 2019 it lay on the president’s desk awaiting his signature. The coronavirus pandemic hit us early in 2020, and so far the president has not signed. One imagines that he has other things on his mind right now. So has ANFASA. We have revitalised our website with a bold new look and a reader-friendly structure, and are busy re-fashioning our programmes so as to function effectively online. Like authors’ associations in other African countries, we are turning our attention to schemes such as Public Lending Right which increase the productivity of authors, and their earnings. We are turning our planned international symposium on ’The Power of Authors’ into a multimedia online event.

The CAB lies dormant, and having said, many times over, what needed to be said on behalf of authors, ANFASA has decided not to wake it up. But not everyone is content to let it lie. Yesterday, an article about the CAB appeared in the Daily Maverick, still begging the president to sign the CAB into law. I thought quite long and hard about responding to that article and in the end decided that ANFASA owes it to its members – and to all authors – to reiterate its position and to contradict this latest attempt to influence public thinking.

My first concern is the opening paragraph which cynically and opportunistically tries to use the coronavirus pandemic to shore up support of the CAB:

In the Covid-19 lockdown situation, the Copyright Bill’s provisions for better access to information for education, research, libraries and archives, museums and galleries, and people with disabilities are desperately needed.

It is hard – no, it is impossible – to see the connection between the pandemic, the desperate need of education etc for ‘better access to information’ and the CAB, so it is important to interrogate what this paragraph actually says. First, you have to understand that the CAB is an exceptionally broad piece of legislation covering all aspects of all the products of the mind (written works, artistic works, musical works, performances of all kinds) all of which have different means of expression. You can’t devise the same rules for a book as for a dance, the same for an opera as for a painting. In many ways, the CAB tries to do this and it falls flat on its face. Not all of its provisions are bad. ANFASA supports its attempts to make access easier for the visually impaired. ANFASA also supports certain of its intentions; access to information is a sine qua non of a literate, educated and productive society. But the quoted paragraph, playing on emotions, cynically insinuates that ‘people with disabilities’ desperately need the CAB in the time of the pandemic and so, for unexplained reasons, do museums and galleries (which are closed, in any event).

The article opens with a defence of the ‘fair use’ doctrine which raised heated debates in 2018 and 2019. My letter is not going to go into the pros and cons of fair use. They have already been exhausted, but I strongly object to fair use being praised as the universal panacea, the saviour of the publishing and entertainment industries – and even the stimulant to revive South Africa’s ‘sluggish economy’. This really is nonsense, especially if you know that what fair use actually is, is basically a grossly extended version of the provisions that already exist in South African law to enable copying.

The article goes on to mention a finding of the Farlam Commission that ’about 70% of monies collected for copyright fees for educational material flows out of the country’ with the implication that the solution is to steal that information rather than pay for it. No. A very loud and emphatic no. The solution to benefit South African authors, other creators and education itself is to stimulate and encourage local knowledge production to substitute for the excessive importation of knowledge from abroad. That is what will stimulate the economy. And that is the long-term strategy that will be hobbled if the CAB, with its disrespect for authors, comes into effect.

The article concludes with a plea to the president to sign the CAB. He has had ample time to read it and ‘peruse all the submissions, letters, opinions and other documentation’ so there is no ‘excuse for any further delay’. That is, if the president reads only the submissions, letters, opinions and other documentation supporting the CAB, and not the equally numerous submissions, letters, opinons and other documents highlighting the CAB’s failures and the unintended consequences resulting therefrom.

We can do without articles like this one. Let’s not rehash last year’s arguments. Above all, let’s not try to turn the pandemic and the human suffering it is causing to our advantage by pretending that the CAB will somehow alleviate the devastation of coronavirus.

ANFASA has nothing more to say about the CAB. If the president signs we will follow the outcomes and report back to authors. If he doesn’t sign and the CAB is referred back to Parliament for its constitutionality to be reconsidered we will, likewise, tell you about it.

In the meantime, ANFASA wishes its members and all authors continued good health and good writing. Stay safe.

Monica Seeber
ANFASA Copyright Committee