Political Economy of the Copyright and Performers Protection Bills: Implications for Universities

Sometimes, new legislation starts off well-intentioned, but then loses its way and is subjected to partisan constituency manipulation. One such example was the Protection of State Information Bill (2015) that was intended to consolidate existing legislation into a single omnibus compilation.

By Keyan G. Tomaselli

The protection of Intellectual Property Rights (IPRs) is often alleged to be opposed to the idea of the ‘creative commons’, or what is now called open access (OA). This claim is made as IPRs as a modus for wealth creation are being transferred onto other previously unthought of sectors external to the familiar orbit of ‘the market’: indigenous cultural forms, music, fabric designs, folklore, knowledge of natural resources, dance steps, advertising catchphrases and so on. As such, IPR law is now a focal concern, not only for the lawyers and business, but also for policies on development, innovation and political economy. IPR is the key factor in this creative and information-led economy now characterised as the so-called Fourth Industrial Revolution (4IR). However, IPR is argued by its critics to favour only the North, though the latitude granted the global South is quite wide (Markus, 2000). This essay argues that copyright is necessary also for ‘Southern’ economies that have yet to fully embrace 4IR.

The South African Conundrum

Sometimes, new legislation starts off wellintentioned, but then loses its way and is subjected to partisan constituency manipulation. One such example was the Protection of State Information Bill (2015) that was intended to consolidate existing legislation into a single omnibus compilation. But it ended up being labelled the ‘Secrecy Bill’ and was appropriated for anti-democratic purposes rather than those originally intended. 1 The Copyright Amendment Bill (CAB) is another that has gone off the rails. It applies a very wideranging definition of ‘fair use’ on all materials to be used for ‘education’. The Bill creates exceptions to rights where the right still exists but is limited in some way. The issue for the book publishing industry is the Bill’s extended version of fair use, which favours users and is prejudicial to creators, especially authors of scholarly works and school or university textbooks. The revised Bill (2017) introduces a plethora of new ways in which works may be copied, reproduced, distributed, adapted and accessed by users without author or publisher permission. As copyright lawyer Scollo Carlo Lavizzari concludes, ‘This kind of originality nihilism negates the role of the author altogether’ (email to author, 2 May 2019). Weak copyright protection does not stimulate indigenous innovation, but rather disincentivises the creation of new and original content and cultural expressions and artefacts. Those who celebrate fair use typically argue that copyright protection and the public interest are diametrically unopposed.

By means of this rhetorical device they counter-intuitively argue that fair use is critical for innovation and creation. And, while claiming to argue for ‘creators rights’, they campaign for the introduction of more ways in which users can make unlicensed usages of creators’ works. One such group is OA fundamentalists ReCreate (ZA), a group of academics, librarians and documentary filmmakers who are funded in part by Google, the world’s largest user of copyright-protected materials, to promote the 1 See Duncan (2018).

Bill and to advocate for the advantages of fair use and increased user rights. While they claim to champion the rights and interests of creators, they promote and advocate the introduction of arguably the broadest set of copyright exceptions in the developed world into South African copyright law. Such law would make it virtually impossible for creatives, authors and indigenous communities to enforce their rights and to protect their works against unlicensed usages.

Why universities should be concerned

To start, the Bill’s extended and wrongly calibrated fair use value chain unfolds as follows: you commenced as an author, but if your work is ‘recreated’, you ended up as a mere content provider for someone else’s creative work for which s/he can take credit (Anfasa, 2019a). That is, when your work is copied because it falls into fair use, you do not have to be identified as the author if this is not ‘practicable’. Your name might be lost en route or used to add credibility where none is due. Consequently, your work might not be cited, grievously affecting your university’s performance management assessment. The promotion or grant you were applying for might now be denied by the new managerialist assessment criteria that need specific author outputs and citations to measure – and this may open the door to plagiarism. In contravention of the Berne Convention,2 by limiting the rights of educational authors and publishers and making published work ‘free’ to be reproduced for educational purposes, the Bill could thus alienate authors from the fruits of their labour, as well as the right also to be cited. University presses fear that they will be directly affected, that some might close, merge and/or downsize due to weakened copyright provisions. International publishers might refuse to partner with local presses as they will not control the rights in, and use of, their own product in which they have invested (Wightman and Joseph, 2019). Full-time educational authors (especially of school and university textbooks) could be deprived of royalties,

2 The principle Berne article that is contravened by the CAB is Article 9: Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form. It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. S 9(1) says the author has the exclusive right, but CAB s 9(2) limits that right. The CAB exceeds the threestep test (certain special cases, no conflict with normal exploitation, prejudice legitimate interests


“The question is, who pays for OA? OA will see a shift from ‘reader-pays’ (via libraries and campus bookshops) to ‘author-pays’ – and the likely ‘death’ of textbook authors as far as acknowledgement is concerned.”

as might authors writing in African languages when their books are adopted as class readers – a key market for indigenous language publications. Textbook production might largely cease. The pro-Bill position argues exactly the opposite: All will be well, because information freedom and information justice will be obtained. The alleged avaricious behaviour of international commercial publishers that derive excess profits from donated knowledge facilitated by academic institutions will be checked (Merrett, 2006). In turn, this will stimulate national intellectual innovation and economic growth. This position draws on arguments that now propose OA as the prime form of information dissemination. But this OA argument confuses access with content. The actually stated intention is to phish the work of creators and transfer their content to big tech firms (Flynn and Palmedo, 2017; see also Ford’s 2017 dismissal of Flynn and Palmedo’s study), seemingly because such content will then be made ‘free’ to browsers and users (e.g., students, lecturers and researchers). What these sharing sites do, however, is harvest browser attention and personal data on mass scales to sell these on to advertisers. In so doing, they commoditise the dissemination of academic works by means of the OA financial model. The communication channels and associated transactions are thus presented as ‘free’ to readers. >> Click here to download the extract and keep reading


By Keyan G. Tomaselli
Originally Published in THE THINKERVolume 81 / 2019