The IAF is concerned that as it stands the proposed reforms in the Copyright Amendment Bill would have the unintended consequences of harming the livelihoods of creators and undermining the creative industries of South Africa.
These reforms would harm authors’ earnings, particularly those who write works for education. License incomes lost to exceptions would threaten the livelihood of authors writing for education, as this is often the main source of remuneration for their work. Proper remuneration for authors is important to ensure they can continue to contribute to their culture. When the inputs to a country’s creative industries suffer, the wider impact is significant: if local authors cannot make a living from their work the supply of local cultural works is threatened and it can lead to more cultural and creative works being imported. If a country relies on imported textbooks for schooling the diversity of national culture will suffer and the availability of works in national languages will decline as authors cannot make a living creating them. Threatening the ability of the authors of South Africa to make a living from their work could limit the availability of local work, which is especially concerning.
In section 12A which introduces general exceptions the concept of fair use is very broad with the proposal using the wording “such as the following”, suggesting that exceptions could go far beyond what is provided in the writing of the proposed change. This results in the unintended consequence that the reform not only poses an inestimable threat to authors’ livelihoods but is also incompatible with international law.
It is of critical concern that the amendments suggested will conflict with South Africa’s obligations under the Berne Convention and the Trade-Related Aspects of Intellectual Property Rights Agreement. These international treaties require copyright exceptions pass the three-step test, which requires exceptions to; be limited to special cases, not conflict with normal exploitation of works and not unreasonably prejudice the legitimate interests of the author. These reforms fail these tests; they are too broad to be limited to special cases and by undermining the main source of remuneration for authors of education works and local authors the latter two tests are failed. These concerns have been raised by copyright experts engaged by the parliament and should be taken seriously.
The IAF is concerned about the process by which these proposed changes have been developed; reports suggest that authors and their representatives have not been properly consulted in the development of these proposals. Measures seemingly intended to support authors will not be effective. An example of this is the intended establishment of better moral rights, such as obligations for naming the author, would only be applied in limited circumstances, when crediting the author should be the norm.
The IAF would point to the challenges faced by authors in Canada, where similar changes to introduce fair use provisions and broaden exceptions led to a catastrophic decline in Canadian author incomes. This has shown across a number of income surveys in Canada including the most recent 2018 report entitled Diminishing Returns: Creative Culture at Risk.
The IAF and its membership urges the National Assembly to reconsider these proposals and consult with authors and their representatives more fully about these concerns. Upholding balance between access to works and fair remuneration for creators should be the primary objective of this Bill, as was its original intention.
The International Authors Forum (IAF) represents over 700,000 authors worldwide through nearly 70 author organisations and campaigns for their interests in every country.