There is a crisis in South African creative industries.
As creators, we are users of existing cultural products. Currently our work can be blocked through censorship by copyright owners for uses that would be freely permitted elsewhere. Moreover we often do not not own the work we create. And many of us have been disadvantaged by an exploitative system which fails to pay us for our work.
Growing the digital economy requires innovation. South Africa is at a disadvantage to other countries that have flexible copyright laws that permit software, game and other developers to use digital content for technological uses as long as they do not compete with copyright holders.
For example, for a video game set in Johannesburg, it should not be a problem to feature famous landmarks like Nelson Mandela Bridge. In the United States, Canada, India and other countries such use would be considered fair; in South Africa the law is less clear.
There is a current process to reform our country’s copyright law that could address some of our grievances and better enable local creative production.
The Copyright Amendment Bill drawn up by the department of trade and industry last year included many of the creator rights we need, including the right to “fair use”. Fair use was limited to uses that do not substitute for the work in the market of the original, protecting markets for our work while liberating our creative capacity.
The Bill contained many other useful and well-crafted provisions, including on educational, disability and library uses.
Some have lobbied against fair use for what we think are misguided reasons. Some think that such rights would harm South Africa. This, despite evidence that expanding fair use and other creator rights in other countries has promoted local industry growth, innovation, scholarship and local entertainment and publishing industries.
This week before Parliament, the department of trade and industry and the department of arts and culture endorsed a two-phased approach with some issues delayed. But justice delayed is justice denied.
We should not have to wait any longer for our rights to create.
The fair use rights we need include the right to:
- Parody and satire
- Incidental use of background content
- Use of works in public places
- Digital archival
- Creation of educational works
- Non expressives uses on the Internet, including indexing, data mining and search
- Re-mixing, transforming and re-interpreting
- Creation of accessible copies for people with disabilities
- Adaptation to future technology
Recently, a diverse group of creatives, including ourselves, formed ReCreate — a coalition in favour of balanced copyright reform. ReCreate calls on government to enact all of these creator rights, either directly or by an open fair use or fair dealing exception.
We also call for the Copyright Act to respect our right to own works we create. Current law that makes the commissioner or funder of many works the default owner should be repealed.
We finally call on the law to protect our right to earn from our work. Collective management organisations (CMOs) run under-regulated monopolies that charge others for our work, claim to “represent” us, but are free to waste our money. CMOs must have a fiduciary duty to creators, be subject to member governance, and be subject to government oversight on the reasonableness of their expenditure and payouts.
These are vital and urgent issues that must be addressed now, not in any later stage.
If there is a two-stage approach, the interim arrangement must include fair use or open fair dealing and promote our rights to own and earn from our works. This would create a fair use trial period so that creators have reasonable assurance that they can practice essential activities while the fine details of specific exceptions are worked out. This trial phase would allow a test of the claims that fair use will cause any harm.
Forward to a creative economy that works for all South Africans.
The authors are members of the steering committee of Re-Create, a coalition of writers, filmmakers, photographers, educational content producers, software and video game developers, technology entrepreneurs, artists, poets, producers of accessible format materials, and other South African creators. Re-Create was formed to advocate for a balanced Copyright Amendment Bill that includes modern creators rights. For more information visist re-createza.org