/ 22 March 2019

An open letter to the minister of trade and industry

An Open
Minister of Trade and Industry Rob Davies. (David Harrison/M&G)

Dear Minister,

Thank you for your letter in reply to ours about the petition signed by thousands of authors asking that the Copyright Amendment Bill not be adopted.

The Academic and Non-Fiction Authors’ Association of South Africa (Anfasa) agrees when you say copyright is an instrument to drive innovation and to generate creativity in the 21st century.

Such objectives chime with ours, which include empowering authors and encouraging the creativity that contributes to culture, science and heritage.

Copyright law should balance authors’ entitlement to reward for their talents and labour with the needs of society to benefit from what they have written.

You may have been informed that because Anfasa opposed “fair use” it means that authors oppose access to information.

That could not be more wrong. Anfasa supports exceptions that permit access without authorisation for education but, with respect, we challenge your assertion that “the 1978 Act had no exception for education or research”. This is incorrect. The Act contains numerous such exceptions.

The Copyright Amendment Bill broadens and extends them to the point where unauthorised, unpaid and even unacknowledged use of an author’s work is permitted if it is “for education” — an undefined purpose wide open to interpretation. The result will be uncertainty and an open invitation to endless litigation that no one can afford.

You also wrote that textbooks and scholarly journals are expensive. You seem to be saying that the law should make them cheaper. Anfasa members, teachers and academics, are also concerned that students can’t afford books. That is why at universities extracts from published works are copied under licence.

For a university holding a “blanket licence” to copy chapters and articles and to distribute course packs the fee per student per year is R129.56. We read with total amazement what Joanmariae Fubbs, chair of the portfolio committee, said in Parliament: “I am told that currently students have to pay R1 000 to use one or one-and-a-half chapters in a textbook.” You yourself said that “every time you go to a photocopy machine you have to put a bucket of money into somebody’s pocket” and later you said “as politicians, we have to make decisions … [we make] no apology for taking decisions in favour of students …”

Anfasa supports benefits for students. Learning and knowledge production are at our core. But making free what is currently licensable will lead to a student saving R129.56 a year. Meanwhile, authors will earn less.

Because copyright is so vulnerable to vested interests, someone may have deliberately passed on incorrect information about costs to students. This does not gainsay the objective of the department of trade and industry for copyright to stimulate research, innovation and creativity, but the Copyright Amendment Bill will fail to reduce such costs.

You say that the department of trade and industry consulted widely and that it was impossible to accommodate every position. Of course. No one expected the department to come up with legislation that miraculously pleases everyone. But some positions have been consistently favoured over others.

Anfasa attended and spoke at consultative meetings, conferences and seminars. We made submissions and participated in public hearings in Parliament.

None of the concerns we raised or the points we made about the balance of needs and interests that copyright should preserve were taken into account. We conclude that there may have been another agenda exerting influence on the decision-makers.

This isn’t just about exceptions and flexibilities for education, nor about the production of new know-ledge. It is about the unintended consequences of bias that will negatively affect knowledge production way into the future.

It is about an excessively broad range of exceptions, promoted by certain persons known to be close to United States tech companies and who have been very active locally, and in other countries that eventually adopted “fair use”. The version of “fair use” we are getting is more lenient, with more exceptions than even those of the US, with none of the protections such as statutory damages that could be imposed on institutions that stretch “fair use” beyond the limits of fairness.

Silicon Valley is replete with tech companies eyeing their place in the digital future. The broader the “fair use” regimes are worldwide, the easier it will be for them to gain access to intellectual property and use it for their own gain. Check the reports detailing how persuasive the American emissaries can be in convincing organisations and even governments that more and more exceptions are necessary in order to “re-use” and “re-create” the creativity of others without their permission.

This Bill has been in preparation for far too long. You write that it “cannot be delayed any longer”, but we are asking whether there is anything we can do at the last minute to avert disaster. Please hear us.

Does the Bill do what it is supposed to do: benefit the students, the producers of knowledge and the innovators — as well as society in general?

This should not be a contest between students and authors, with students the short-term victors and the likes of Google waiting in the wings.


Monica Seeber, Academic and Non-Fiction Authors’ Association of South Africa