Open letter to the minister for trade, industry and competition

What is an author worth?

Open letter to the minister for trade, industry and competition

Dear Honourable Minister

I address you from the Academic and Non-Fiction Authors’ Association of South Africa (ANFASA) on behalf of authors of books who stand to lose income and the incentive to continue writing if the Copyright Amendment Bill is approved by Parliament. We urge you to intervene by asking the Portfolio Committee for Trade, Industry and Competition to reject the Bill.

It is poorly framed and drafted, and not backed by policy. It has pitted authors and publishers of educational and academic books against educational institutions – as if copyright law must favour one at the expense of the other. What good copyright law should do, and what the Bill should have done, is weigh the rights of copyright owners against the interests of society and create a balance between them whereby authors grant educators and educational institutions some special exemptions from copyright but still retain enough control over their works to earn an income from them.

Two parliamentary portfolio committees have grappled with the Bill’s failings. It was passed by Parliament in 2018, accompanied by heartfelt speeches from MPs about saving creators from dying in poverty and opening wide the doors of education, but in reality it does neither, despite such hollow claims.

The long history of the Bill began In 1998,when a group of musicians petitioned the president to look into unfair copyright practices in the music industry, as a result of which an investigative commission, the Copyright Review Commission (CRC), was set up. The recommendations of the CRC formed the backbone of an amendment bill to make sweeping changes to copyright law, to ‘ensure that artists do not die as paupers due to ineffective protection’ in the words of the Bill itself. The Department of Trade and Industry the declared that it was making law to boost the income of all creatives.

The problem is that the operation of copyright (resulting in the protection of and reimbursement for creative works) is quite different in the literary and musical sectors – something of which the drafters of the Bill seem to have been unaware. The result is a parliamentary bill that incongruously merges the existing rules of copyright for literary authors with those for composers of music, producers of films and writers of computer software. As one example, it introduces statutory claims for royalties, appropriate for musical compositions, as evidence of a benefit to authors of literary works whereas such a provision for authors is not only unnecessary but also detrimental.

The Bill takes away from all authors’ existing economic rights by new, extensive exceptions to copyright to satisfy another ambition of the drafters: to ‘allow reasonable access to education’ because under the current Copyright Act, as the Bill put it, ‘educators [are] hampered in carrying out their duties’.

You may well ask what that is supposed to mean, but through an acrimonious discourse that has developed it has come to mean that unless the law is changed to allow schools and universities to photocopy textbooks, learners and students will be denied an education. If that seems vastly illogical and grossly unfair that’s because it is indeed illogical and unfair, as well as untrue.

Free photocopies for education will be possible under the Copyright Amendment Bill. Authors of school and academic textbooks and scholarly works don’t always earn salaries as do teachers and university lecturers, and many of them depend for an income on royalties derived from the sale of their works. The provision of schoolbooks is the obligation of the state, not the private sector; if the state does not buy books in sufficient quantities – or does not buy them at all – and schools are forced to make photocopies for learners, one has to ask the question: why should authors have to forego their earnings to let their books be copied for free because the state has defaulted on its obligation?

Proponents of such provisions in the Bill claim that students at higher education institutions are discriminated against because they can’t afford textbooks. Some (though certainly not all) textbooks and scholarly works are costly, especially those that are imported, and in countries around the world, including South Africa, universities subscribe to licensing, whereby extracts from books students can’t afford to (or don’t need to) buy are collated under licence into ‘course packs’. These, too, will be ‘free’ under the new law.

So far I have focused narrowly on one negative consequence for authors but the ripple effects of excessively broad exceptions to copyright go much further and the local book publishing industry will face an eventual decline when the book is devalued to such an extent. There will be many job losses. Knowledge production and the writing and publishing of scholarly works will take a step backwards. South Africa will become more reliant on imported knowledge – from the North and even from African countries which, unlike ours, are taking steps to protect the intellectual property they produce and to nurture and respect those who produce it. It is ironic that supporters of such exceptions are simultaneously decrying the importation of so much learning material from the North, and closing the doors to the growth of knowledge production locally, binding us ever more tightly to books from abroad.

The Copyright Amendment Bill lacks a legitimate legislative background: no economic or social impact assessment to forecast its consequences in the future; no copyright policy to guide its ethos; a stop-and-start drawn-out process through Parliament in which stakeholders were consulted but one side of the skirmish was always favoured when decisions were made. Shadows of doubt have hung over the Bill from the start. Even the president has expressed doubts about the constitutionality of certain aspects of it.

It looks like final decisions are about to be made, and from the authors’ perspective it seems as if we are teetering on the edge of a precipice, and we have to ask: What are we worth? Are we, as we thought, one of the drivers of an increasingly literate and creative society or are we merely providers of free content for students? We believe that authors, the producers of knowledge, have a major role to play in cultural and educational development, and we call on you, and on Parliament, to acknowledge us and to reject the Copyright Amendment Bill.

With kind regards

Monica Seeber