COPYRIGHT AMENDMENT BILL IS BAD NEWS FOR AUTHORS

For the past few years (yes, it has been dragging on for that long) a Bill to amend the South African Copyright Act has been in development. You have probably heard about the draft Copyright Amendment Bill (CAB).

ANFASA has not pumped out a lot of information on the CAB to members, mainly because it has been in a state of flux for so long. But that doesn’t mean that we have been inactive. On the contrary, we have participated in consultative meetings of various kinds and have sent detailed submissions to the Department of Trade and Industry (DTI). Last year, an ANFASA delegation went to Parliament to present the case of authors to the Parliamentary Portfolio Committee for Trade and Industry, which is now considering the CAB.

ANFASA has spoken up constantly, for its members, and even for all authors, who have been badly served by the provisions of the CAB.

The history of this legislative development began when a delegation of musicians went to the then president, Jacob Zuma, to complain that they were ‘dying in poverty’ owing to inadequate copyright legislation. A commission was set up to investigate and make recommendations for changes to the Copyright Act. The DTI then set about drafting an amendment to take care of creators’ concerns about the incomes they derive from their intellectual property.

The CAB’s original purpose was to improve the law for creators, including authors, but this ran into strong opposition from those who wished to disseminate books and journal articles (digital and in print) freely to students under the principle of ‘access’.  

The case that ANFASA has put is that of course we support access. We do not write to lock our work away and hide it from our readers. However, there are two points of contention here. The first is that the current law already allows for free access in certain special cases, and that the Bill should have clarified this and extended it to the digital arena rather than bringing in a new system of copyright exceptions based on American law that promise years ahead of copyright confusion and recourse to the courts.

The second point of contention is even worse and directly affects ANFASA members. Copyright law is supposed to provide a balance between the interests of creators such as authors and the needs of society. The CAB has fatally disturbed that balance by – to put it in basic terms – allowing works intended to be used ‘for education’ to be copied without permission or payment. Of course there are conditions attached – it is not quite so simple – but the bottom line is that authors of books of all kinds written for schools and universities will suffer loss of royalties because their books will be bought in much smaller numbers.

ANFASA’s argument is that in the CAB the so-called ‘right’ of the ‘user’, the person or entity that wants free access to the written work (as well as permission to make copies of it), trumps the right of the author to earn a living from her or his talent and labour.

Having passed through a process of consultation with civil society stakeholders including authors and publishers (in which not a single one of ANFASA’s concerns and/or suggestions was taken into account), the Bill is now in Parliament, will soon be presented to the National Assembly and will pass into law. The publishing industry – largely based on schoolbooks as are all publishing industries in developing countries – will be seriously damaged, and South African authors will find it more difficult to find a publisher. Fewer books will be written locally. Foreign publishers will boycott South Africa if their books can so easily be copied instead of being sold.

South Africa’s small and fragile reading culture will be dealt a blow from which it may never recover.
ANFASA is still holding out hopes that some last-minute intervention may deflect the blow. Perhaps a well-known and respected author will stand up and forcefully remind the lawmaker that unrestricted ‘access’ has multiple consequences, some of them unintended; that the rubric ‘fair use’ does not mean ‘use that is fair’; that as many if not more authors die in poverty than musicians.

In condensing a long and extremely complex process in this message ANFASA has had to resort to generalities. There is much more wrong with the CAB than has been pointed out here. We nonetheless sincerely hope that members will want to know more and to express their concerns, especially to persons of eminence who might be able to exert influence at the highest levels.

Finally, to show what we are up against, the following:

It is three years ago, August 2015 to be precise, at one of the many conferences on the CAB at which the focus of ANFASA’s speech was the plight of authors who write in the indigenous languages and who depend on the education sector because their readership among the general public is very small. A fairly significant number of ANFASA members fall into this category. Afterwards, an e-mail was received by ANFASA. It said: ‘Let us not get carried away by the mediocre demands of a handful of non-fiction writers, when clearly our research outputs should be building towards the development of the country and the African continent.’ So, to the author of that e-mail only the interests of the academic elite count. That is not what ANFASA is about. It is our conviction that writers are our conscience and that all authors should be valued.