Copyright in created works and the right of their creators to live off them should be an inalienable right, says the writer (Madelene Cronjé)
The goals of the Copyright Amendment Bill tabled by the National Council of Provinces are noble and shared by most South Africans interested in developing our creative and academic sectors.
But, by misreading the production processes behind our country’s body of knowledge, Parliament may have dealt a death blow to these industries.
What’s even more concerning is the domino effect that this will have on the long-term quality of higher education in South Africa when we remove the incentives to create new or updated learning materials.
In a recent letter to groups representing some of the creators of this knowledge — PEN South Africa, PEN Afrikaans and the Academic and Non-Fiction Authors’ Association of South Africa — the minister of trade and industry, Rob Davies, stated that educational institutions such as universities are the dominant creators of new knowledge and that, as such, they “critique information and find new local and global applications for existing knowledge”.
Davies uses this assessment as justification for the Bill, which, in its exceptions and limitations for fair use, allows for the extension of exceptions to the copyright of works when the use is “for education” or academic works.
The harsh reality is that, once the producers of knowledge can no longer gain fair compensation for their work, the incentive for creating disappears and work stops. When this happens, we achieve two outcomes.
The first is that academic materials will be left to age until they are no longer relevant and the skills we are creating will not keep up with global trends.
The second consequence is to recolonise our education, because the only way to access new materials will be to import it (at a significant cost premium).
When there is less knowledge, particularly local ideas and insights, the opportunities for “critiquing information and finding new local and global applications” for it is necessarily also reduced.
The rationale behind the Bill’s attempt to make academic texts affordable or permitting their reproduction is that students and lecturers will be able to access that knowledge more easily.
But, by rendering the production of academic knowledge nonviable, the minister is essentially pressing “pause” on the growth of the field.
When the amended Act leads to fewer South African writers producing work and fewer university presses and academic publishers putting out texts, the availability of “existing knowledge” to be converted and processed into new, innovative and inspiring ideas will shrink.
In a sense, the department and Parliament, which has approved the Bill, is endorsing the appropriation of knowledge without compensation.
Although such a policy may be understandable in the context of returning stolen land to its rightful owners, in the academic field there are no such considerations.
Knowledge has not been stolen. It is produced by writers, academics, publishers and artists, influenced by previous generations of knowledge creators, built upon and shared in order to grow humanity’s understanding of itself and its environment.
These people have as much right to compensation for their endeavours as any other workers in our economy.
By allowing an extremely broad range of uses of their work without authorisation or compensation, the department is in effect saying it has no value and at a stroke is undermining knowledge creators’ ability to earn a living.
To extend the land-use metaphor, if a government were to decree that wheat could no longer be sold for money, wheat farmers would instantly have no more incentive to grow wheat and cultivation of that crop would cease.
In this case, knowledge and ideas are our cash crop. Writers, publishers and artists are the farmers of our ideas. They invest their time, their labour and their own money into their research, their production and their creative processes.
Although much of what they do is for the benefit of broader society, their motives are not just altruistic. Like all of us, they must support themselves with these labours.
The Copyright Amendment Bill threatens to remove their ability to do so.
When producing knowledge no longer pays, knowledge producers move into other industries. They have no other choice.
Davies, in his letter, insists that “the hybrid fair use provision is not a carte blanche provision but it is subject to safeguards that have been incorporated into the CAB [Copyright Amendment Bill]”.
This is all well and good but, as we have seen with similar legislation in countries such as Canada, the parameters of the new law will have to be determined by the judiciary.
Academics, artists and publishers will have to go to court to defend their right to earn a living from their own work.
Whether they succeed or fail, the process may take longer than a decade, as has been the case in some similar matters in North America. Quite simply, few publishers
and hardly any authors have the wherewithal to finance such legal battles.
This should not be necessary. Copyright in created works and the right of their creators to live off them should be an inalienable right.
We fear that, in trying to ensure that coursework is more affordable, the state is ensuring that the work in those academic courses will be all the poorer in years to come.
We must again implore the legislature to reconsider its adoption of this law.
Even now, at the 11th hour, the president can send the Bill back to Parliament for further consideration. If our writers can no longer write for a living, there will be less writing to learn from.
Professor Sihawukele Ngubane is the chairperson of the Academic and Non-Fiction Authors’ Association of South Africa