Why the president must send the Copyright Amendment Bill back to Parliament
Opinion Piece bypublished by Mail & Guardian:
The Copyright Act of 1978, last amended in 2002, urgently needed updating. But the Copyright Amendment Bill passed by Parliament earlier this year raises concerns about whether South Africa is going to give it all away.
“The free use of foreign copyright material is no substitute for a bold programme of enlisting and encouraging … scholars and writers to produce the books we need,” Indian scholar and university librarian NN Gidwani wrote in 1968, and his statement is still relevant today.
He wrote at the time of the last amendments to the Berne Convention, the international treaty whereby copyright of nationals of all its 177 member states, including South Africa, is recognised in its other member states. These amendments introduced flexibility to allow member states to legislate their own copyright exceptions and statutory licences for reproductions and translations of unavailable works, in response to demands by developing countries.
The object of the 1978 Copyright Act was to update it in line with the amended Berne Convention.
The public discourse, whether about fair remuneration and rights for creators and performers in the digital era or legitimate demands for relaxation of copyright rules in special cases, has been corrupted by red herrings, straw horses and hidden agendas in the support for the Bill.
The expression of support for the Bill has metamorphosed over the two-and-a-half years since it was introduced. First it was for its championing of so-called “users’ rights”, something that does not exist in any copyright statute in the world.
When the original Bill’s astonishing provisions granting royalties to users for their uses of copyright works were removed by the previous Parliament’s portfolio committee for trade and industry, the narrative changed to “creators’ rights” and “recreators’ rights”, including the strange notion that copyright exceptions would somehow benefit authors and artists who create works for a living.
The “decolonisation of copyright” is but the latest edition. The surprising thing is that these narratives are expounded in support of the Bill by the same people who claim public support that all but disappears under scrutiny, and who have to find different rationalisations to support the same outcome every time the circumstances change.
The Bill’s copyright exceptions will create new circumstances where copyright works can be copied, adapted and placed online without permission and without paying for it.
The exceptions are in nearly seven pages worth of text in single-line spacing, and have come through the entire legislative process virtually unscathed, despite incisive submissions from all quarters of the creative industries and the advice of all the members of a panel of experts in copyright law, and despite the rest of the Bill having been substantially amended by the portfolio committee.
On the international stage, policymakers see through these calls for “users’ rights”, “recreators rights”, “decolonisation of copyright”, “information justice” — call it what you will. New legislation in the European Union vests internet platforms with taking responsibility for copyright infringing material that they make available. Copyright exceptions in the United Kingdom, the EU and Japan facilitating the use of copyright material for artificial intelligence machine learning vary substantially from the adapted “fair use” clause in the Bill. The recently-released model copyright law of the African Regional Intellectual Property Organisation, an intergovernmental organisation for co-operation on intellectual property between mostly English-speaking countries in Africa (but not South Africa and Nigeria), has none of the excesses of the Bill, nor does the recent Copyright Amendment Act in Kenya.
Both the draft of the Bill published in 2015 and its original version introduced to Parliament in 2017 contained key provisions expropriating copyright for the benefit of the state, while giving rights of copyright away under the extensive copyright exceptions. The clauses meant to implement the recommendations of the Copyright Review Commission report of 2011 betray a fundamental misunderstanding of what was required to improve the position of musicians and authors. The recommendation in the assessment of the much-maligned 2013 Draft Intellectual Property Policy for a statutory licence for reproductions and translations of written works not available in South Africa, was similarly totally misunderstood.
The document produced in Parliament as the assessment that the government prescribes for any new legislation had no independent research and was not published as it should have been, raising the question of whether it was even signed off by the department of planning. It may well be necessary to investigate whether the compilation of this document amounted to an abuse of the socioeconomic impact assessment system.
The portfolio committee recognised the Bill’s shortcomings and mostly wrote out the most egregious expropriative provisions. But this still amounted to rewriting a fundamentally flawed text. All the copyright exceptions were retained, virtually unaltered, notwithstanding the advice of every member of its own panel of experts that many of the copyright exceptions have constitutional implications, and are at variance with the Berne Convention and other international treaties on copyright to which South Africa is or intends becoming a party.
As a result, the plight of creators and performers in South Africa — the very reason the Bill was introduced in the first place — becomes a collateral issue that needs lip service, resulting in backers of the Bill egging on provisions ostensibly meant to benefit creators and performers that have no precedent in any other country and will be unworkable.
South Africa needs to consider copyright in the creative economy — those who create copyright works, those who invest in them and those who make them available and consume them — in a far more methodical way than the Bill has allowed, to produce sound and even-handed legislation. The president’s referral of the Bill back to Parliament for very real reservations about its constitutionality will create that opportunity.