A new copyright law is just President Cyril Ramaphosa’s signature away from implementation, but critics are claiming that the legislation, which they see as a capitulation to the interests of tech giants such as Google, could have dire consequences for the creative industries.
The Copyright Amendment Act has been passed by the House of Assembly and National Council of Provinces, the latter on March 20 this year, but a coalition against the Bill says that, if it is passed into law, it will result in job losses and may ultimately kill the creative industry.
Collen Dlamini, spokesperson for the Coalition for Effective Copyright, says the Bill is a “complex piece of legislation, riven with uncertain terminology, that has been rushed through Parliament thanks to the advocacy and funding of tech giants like Google”.
He says the Bill calls for “fair use”, which the coalition believes is unfair for creatives because it will allow their work to be freely used by all comers. He says they are against fair use in the Bill because it does not provide statutory protection for content creators.
Dlamini says licensing under the existing law allows for students in institutions of higher learning to copy portions of books, but then institutions are liable for a certain fee per student per year. But with the new fair use rules this will no longer be applicable.
The new law would also, for example, allow Google to copy books from South African libraries for free in exchange for digital copies for the library, while the search giant gets to keep a copy of the scanned books without paying for them for its own business purposes. At present Google can only scan books that are out of copyright.
Critics of the Bill claim Google funded a group called ReCreate, which is for the Bill and has supported it. But ReCreate says it is “a transparent, membership-endorsed organisation”.
“We do not represent Google in any way,” says ReCreate spokesperson Nontando Tusi. The organisation is in a coalition with other organisations that include writers, filmmakers, learners, librarians, technology entrepreneurs and the Freedom of Expression Institute, she says, adding that ReCreate represents more than half a million South Africans.
“ReCreate is funded by a number of organisations, which include Google and [the] Open Society Foundation and receives contributions from volunteers and organisations,’’ says Tusi. It does not act under any instruction from any of its funders, she says. ReCreate says it supports the Bill in its totality, arguing that fair use will “free creators from private censorship”.
“Fair use is necessary for creators, because many new works contain references or excerpts of other works. Documentary films quote news and other sources. Photographs capture copyrighted images and structures. Authors quote other authors. Fair use ensures that creators have the right to make [use of] these and other uses that do not substitute for the original work,” says Tusi.
She says fair use does not mean “free”, because the Bill has “clear parameters as to what use of a copyright-protected work will be considered fair”. André Myburgh, a specialist in South African copyright law, says the problem with the expansive fair use provision in the context of the Bill is that it will encourage users to copy copyright works without permission and without fear of consequences.
“ Fair use is in essence a flexible set of principles based on which, if they apply, a consumer of copyright goods can reproduce the copyright work without the permission of the copyright owner and therefore without payment,” says Myburgh.
“Not only individual consumers, but also businesses can benefit from fair use. It is a doctrine that is unique to the United States and a few other countries in the world that have been persuaded to introduce it — Israel, Uganda, South Korea and recently Singapore. Countries that follow the copyright law tradition of the United Kingdom, including South Africa, have flexible copyright exceptions based on the doctrine of ‘fair dealing’, where the standard of ‘fair practice’ is applied to specific purposes, such as quotation and reporting on current events,” he added.
Myburgh says the UK and Ireland had both considered introducing fair use — and decided against it. Myburgh said the Bill’s fair use clause introduces permission-free copying for purposes not allowed in the US and is also accompanied by numerous other copyright exceptions.
“The impact will not only be felt in consumer uses, which will no longer be paid for, but in unpaid uses by new technologies developed by companies whose business models depend on the existence of fair use and copyright exceptions.”
Dlamini claims the Bill was not thoroughly researched and that it “violates the constitutional right to freedom of choice of trade”. He says a socioeconomic impact assessment done by the Publishers’ Association of South and PwC in 2017 showed the film industry, with R12.5-billion in annual turnover, stands to lose sales, and the book industry could experience losses of at least R3-billion within the first year of the new law being in place.
The PwC report found that the fair use provision in the Bill could mean a decrease in employment in the publishing sector of 30%, implying a reduction of 1 250 full-time equivalent jobs. The Coalition for Effective Copyright includes the Academic and Non-Fiction Authors’ Association of South Africa; the David Gresham Entertainment Group; Dramatic, Artistic, Visual and Literary Arts in South Africa; the Independent Black Filmmakers Collective; Juta; Kagiso Media; Media24 Books; the Music Publishers’ Association of South Africa; NB Publishers; Pearson SA; the Publishers’ Association of South Africa; the Recording Industry of South Africa; Sony/ATV; Sony; Shuter & Shooter; Universal; the Visual Arts Network of South Africa; and Warner. All are up in arms and are begging government to reconsider the Bill.
“The Bill was informed by extensive consultations with copyright-based industries that commenced from 2009,” said Sidwell Medupe, spokesperson for the department of trade and industry.
Google, responding to questions from the M&G, said: “We agree with the government that the existing Copyright Act of 1978 is outdated. The updated Copyright Bill brings South Africa in line with international best practices and standards in dealing with copyright in the digital age.
“Updated copyright legislation will unlock creativity, promote innovation, and grow the creative sector and the South African digital economy.”
Tshegofatso Mathe is an Adamela Trust business reporter at the Mail & Guardian