A last word on the Copyright Amendment Bill

One of ANFASA’s main objectives is to promote and protect the intellectual property rights of its members and of all authors. The development and the passing of the Copyright Amendment Bill has been a challenging and ultimately demoralising time for ANFASA. Not only has our legitimate, honest and carefully researched position been ignored by the decision makers but it has also been undermined by false accusations.

 

ANFASA members are of course entitled to hold their own views on the pros and cons of the Copyright Amendment Bill. But it stands to reason that those views should be shored up with an understanding of what is actually in the Bill and the likely effect of it on authors and authorship. Far too much has been written and said without that understanding. Fatuous comments, sometimes. Deliberately misleading comments, sometimes. Irrelevant comments, often. Accusations without substance. Ominously, a series of similarly worded positions on copyright that, when interrogated, reveal hidden intentions behind a smokescreen of political correctness.

 

ANFASA wants to come to terms with this devil’s brew. We want our members to grasp the issues so that they can make up their own minds and not be led along.

 

Copyright is very complex. Because it is so little understood, it is quite easy to attack it using lies and slanted half-truths that sound reasonable to non-experts. This is what has happened.

 

There is a small organisation called ReCreate. You can find it at www.recreateza.org. According to its website it has 34 members, film-makers, screenwriters, TV and film producers, photojournalists and ‘creators’ (fields not specified). ReCreate has been very actively supporting the Copyright Amendment Bill and posturing on behalf of ‘creators’, which presumably includes authors, although none of its members claims to be an author. ANFASA on the other hand has some 500 author members, and has been diligent about representing their views rather than imposing a line of thought on them. This is why we held a symposium last month and invited members to express themselves freely – which they did. All were unhappy about the Bill.

 

Despite ReCreate’s small constituency it received more favourable consideration from the parliamentarians deciding on the Bill than did ANFASA. Why?

 

ReCreate is closely associated with a certain Professor Sean Flynn of the American University Washington College of Law. Flynn has been identified as one of several US academics sponsored by Google who lobby for the weakening of copyright worldwide; this would inter alia give Google more freedom to digitise the world’s intellectual property in one all-encompassing library which it would own. Flynn writes articles advocating for the diminishing of authors’ rights and the strengthening of so-called ‘user rights’. (See for example the paper on ‘The user rights database: Measuring the impact of copyright balance’, co-written with Michael Palmedo, a report funded by Google).

 

We are not making this up. It is documented that Google pays researchers and lobbyists to promote its interests. A list of academics who have been paid by Google to write articles and reports is available at www.django.googletransparencyproject.org/table/ . Professor Flynn is on it.

 

News has recently broken in Europe that Google has been funding a massive lobby campaign to influence lawmaking in its favour. It has set up an organisation of so-called ‘creators’ and paid them to promote anti-copyright views. The organisation is called CREATE.REFRESH (https://createrefresh.eu/ ).

 

Sound familiar?

 

We don’t know how much money, if any, Google has pumped directly into ReCreate. We do know that its mouthpiece, Infojustice, paid for someone from Media Monitoring Africa to fly to Cape Town to address Parliament. Something called the Global Expert Network on Copyright User Rights (an American outfit closely connected to Flynn) invited its closed circle to make submissions to Parliament, and offered travel assistance to Cape Town to representatives of ten selected organisations as well as guidance in preparing their submissions.

 

We know that Google co-hosted (with the Department of Trade and Industry and the Freedom of Expression Institute) a ‘roundtable’ event in July 2017 at which officials from the DTI and Google were seen sitting at the same table and cosying up to the chair of the Parliamentary Portfolio Committee reviewing the Bill. Inclusion of the Freedom of Expression Institute is particularly alarming as the Bill seeks to curtail the freedom of authors to make a living from their creative and expressive endeavours. But, then, a founder member of ReCreate was at the time the chief executive of the FXI.

 

After ANFASA’S symposium, ReCreate also held a meeting, and on 18 March it released a press statement. This statement is not reproduced in full here but some extracts appear below (in italics), followed by ANFASA’s response.

 

The press statements starts by claiming that it represents the interests of the majority of South Africans. There is no evidence for this. The organisations listed as ‘the majority’ include some to which individual ReCreate members belong – there is no knowing the views of the organisation as a whole. But it is known that Universities South Africa did not consult its constituent institutions before giving the Bill its support, and that the same person who wrote USAf’s supportive submission to the Parliamentary Portfolio Committee is the copyright adviser to the library association LIASA, which is also on the list, and works in the Wits library, which is also on the list, and was prominent at ReCreate’s meeting of 18 March.

 

…the Bill provides numerous provisions that advance the interests of creators.

The Copyright Amendment Bill is not just about authors. In the context of the Bill ‘creators’ means visual artists, composers, performers, film makers, photographers, and so on. The Bill indeed provides numerous provisions that advance the interests of some creators, but not one of them advances the interests of authors of books, so-called ‘literary works’ – yet they are creators too. But there is something else. The lobby for extending the exceptions to copyright used to refer to ‘user’ rights that enable making use of authors’ works in transformative ways without authorisation – digitising them, for instance. Lately, the terminology has been turned around. We find that what were formerly ‘user rights’ have become ‘creator’ rights – permission to take your writing, copy it and distribute copies in schools and universities; to put it online with or without acknowledgement; to translate it and distribute it (non-commercially) without permission. Indeed, making a new ‘creation’ out of it, which the new ‘creator’, not the original author, now owns. The ‘user’ has become the ‘creator’, feeding off the creativity of someone else – and wants to be given the legal space to continue doing so.

 

In many instances, the interests of creators are divergent from those of publishers, labels and collective management organizations who are opposing the Bill.

Why should we believe this? Is it true? Is it false? As far as authors are concerned, DALRO (which, as a reproduction rights organisation is a form of collective management organisation) issues licences for the reproduction of extracts from educational materials, and disburses royalties. This is very much in the interests of authors.

 

Despite the recent explosion of sponsored opinion appearing in the press…

None of ANFASA’s statements in the press was sponsored.

 

The press statement goes on to say that ReCreate supports the Bill because it serves the three most important rights of creators…The right to create new works from a rich public domain of knowledge of culture that cannot be owned.

This is not a ‘right’ in the legal sense. Anyone can create a new non-fiction work building on existing culture and tradition – or not building on culture and tradition, as the case may be. On close examination this ‘right’ is bewildering and meaningless.

 

The right to own and enforce copyright in the new works we create…

The current Copyright Act gives authors the right to own and enforce copyright in their works. In the Bill, the so-called rights of the user trump those of the author where educational use is concerned.

 

The right to earn from our works, including by extending royalty rights of creators…

The Bill takes away authors’ earnings when their works are used ‘for education’.

 

…by regulating collective management companies [sic] that spend our royalty income on activities we do not support.

Given the context, this seems to be an attack on DALRO. It does not say what DALRO is spending money on, or name the activities ReCreate does not support. It is an insinuation, that plants a seed of doubt. It is what we call ‘fake news’.

 

It isn’t possible to pick apart all the dubious assertions in the press statement, but after the main statement there are a few comments praising ReCreate’s stance. One says that in fair dealing, under the current system there is only a finite list of cases in which copying/reproduction is fair. Under fair use, as in the US, fairness is judged by reference to a number of factors…Precisely. The guidelines for fair use are deliberately vague and – users being inclined to push the envelope – have led to a plethora of court cases in the US. In most of them the users lost, but the decisions took years in coming and cost a fortune.

 

Another comment says while it is true that international publishers might have

much to lose in the new law, local publishers, authors and students have much to gain. This one is fake all round. First, international publishers are not overly concerned about the South African market which is barely a blip on their radar. Local publishers, especially small, independent, largely black-owned publishers, will definitely lose when their publications are copied instead of being bought. Local authors will be similarly affected. What will students gain? When there are fewer locally written and published books students will have to rely on imported knowledge. Is this a gain?

 

This week, the chairperson of the Select Committee on Trade and international Relations declared himself satisfied with the Copyright Amendment Bill. In a mystifying  statement, he claimed that ‘The interesting phenomenon is that the performers and artists who the bill seeks to cover are happy, but [that] experts have somehow expressed dissatisfaction on some aspects

Authors were led to believe that the Department of Trade and Industry set out to amend the Copyright Act to the benefit of all creators, and didn’t intend to exclude them. What seems to have happened is that the DTI and the parliamentary committees came under the influence of Flynn and his fellow travellers. This is the result: the existence of authors has been wished away and those who spoke up for us have been summarily dismissed.

Finally, the Select Committee approved the Bill in record time last week, and the chairperson ended the discussion with special thanks to ReCreate.