/ 15 November 2019

Does the Copyright Bill promote access?

Does The Copyright Bill Promote Access?
(John McCann/M&G)




Exactly how the Copyright Amendment Bill will facilitate “access to education” and make education cheaper have not been made clear, not least since the Bill has not undergone a proper impact assessment, as prescribed by government’s own rules.

“Access” is not a term used in the Copyright Act. The description of the Bill as facilitating “access to education” comes down to a rationalisation for new copyright exceptions in

the education space, where copyright works can be copied, as well as adapted and placed online, without permission and without paying for it.

Copyright exceptions for specific educational purposes already exist in our copyright law and are permitted by the international treaties on copyright to which South Africa is, or intends to become, a party. These will have to be expanded as the Act is updated for the digital age.

However, use of the term “access” has become politically charged in a deliberation in which it is conflated — in the sense of being given the same meaning — with the constitutional right to education.

Sanya Samtani, in her recent article (“The new copyright Bill could help unlock the doors of learning and culture”, Mail & Guardian, August 19 2019), offers two examples of how copyright exceptions will apply at university level: photocopying by students and copies made to compile course packs.

Students at all universities already benefit from a collective licence from the Dramatic, Artistic and Literary Rights Organisation (Dalro), which allows photocopying within reasonable and internationally accepted norms, at R134.78 a student a year plus value-added tax under the blanket licence option. The replacement of the Dalro licence with a remuneration-free copyright exception was not canvassed in any of the policy documents leading up to the Bill, nor in the deliberations in Parliament.

The 2011 Copyright Review Commission implicitly supported the Dalro licence, recommending steps to distribute licence income directly to authors, as well as to publishers.

The government’s intentions became clear only after the event, when the former chair of the portfolio committee on trade and industry, Joanmariae Fubbs, told the National Assembly on its adoption of the Bill: “I am told that currently students have to pay a thousand rand to use one or one-and-a-half chapters in a textbook. This is no longer sustainable.” Not only was this statement incorrect, but doing away with remunerated copies contradicts the Bill’s stated aim of benefiting authors.

A course pack made with the use of copyright exceptions will necessarily comprise “cut and pastes” selected from the work of others, with no permission asked and no compensation given, even with the name of the author of the work copied only being given “if practicable”. One can even foresee a scenario in which, to the chagrin of educational institutions that develop original, high-quality course packs, course packs copy extracts from other course packs.

So how will this reduce the cost of education? If it is confirmed that the Bill is meant to end the Dalro licence, the Bill imposes no obligation to pass on the measly saving of R134.78 to each student. With course packs taking extracts from published textbooks and other academic works, there is the real risk of

product substitution based on copyright exceptions.

The Bill does not require works made from copyright exceptions to be made available free of charge. Educational institutions will be able to charge for these course packs in their student fees.

All this free copying will actually be at the cost of the authors and publishers of those works, even university presses. The supporters of the Bill do not assess how the taking of these copies without permission and without remuneration will affect authors and publishers, choosing instead to paint educational publishers as a monopoly that would not be harmed by these new copyright exceptions; if they are, then that would, in the words of the Constitution, be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

Much of this seems to come from an unfounded perception that academic authors write for free. Educators employed by institutions will write course packs as a term of their employment and likely earn no extra income from it. However, when it comes to textbooks for schools and universities, authors are remunerated for their work.

Publishers are an integral part of the value chain behind the development of school textbooks. At risk, they offer textbooks in response to provincial governments’ invitations to tender. When tenders are successful, they contract authors to write the text and they edit the work to ensure they meet the government requirements.

Authors of textbooks and academic books at university level most definitely write with the expectation of being remunerated, usually by way of a royalty. The income these educators earn from writing is more valuable to them than supporters of the Bill would care to admit.

The Bill’s copyright exceptions will also allow the parallel import of textbooks meant for other markets and the reproduction and translation of foreign books not available in South Africa, all of which can be used to substitute South African-produced educational works.

The effect of the copyright exceptions on the creative economy is expected to be severe. Copyright exceptions are based on there being copyright works from which copies can be made. But it will be unsustainable to have educational publishers compete with material that uses their own work made available free and with cheap imports not made for the local market.

These consequences do not seem to have been considered by the government in drafting the Bill, nor were they taken into account in its passage in Parliament. This cannot in any sense be described as “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. On the contrary, if the Bill comes into force, the government will pass its constitutional obligation to provide education on to publishers and authors to subsidise education through their loss of income.

André Myburgh is a lawyer based in Basel, Switzerland, where he specialises in international copyright policy and legislation. He was a member of the panel established by the portfolio committee on trade & industry to advise on the Copyright Amendment Bill. He advises the Coalition for Effective Copyright