Fringe views replace universities’ position on the Copyright Amendment Bill




Universities South Africa (Usaf) seeks to promote optimum conditions for universities to thrive in South Africa. Therefore, it made no sense when its submission to Parliament in support of the Copyright Amendment Bill implicitly accepted a provision that would have meant that plagiarism will no longer be copyright infringement and did not recognise that the compulsory royalty provisions for authors would hinder academics writing for peer-reviewed journals.

A formatting error at the end of the document showed that the Usaf submission of July 2018 was written by one of the most vocal supporters of the numerous copyright exceptions in the Bill, a founding member of pro-Bill lobby group ReCreate, who is based at the University of the Witwatersrand.

Universities are major consumers of copyright materials and will demand greater flexibility to work with these materials and to make them accessible to their faculties and students — that is, for improved copy­right exceptions — and they cannot be faulted for this.

But a study of the Usaf submission compared with the submission made by ReCreate in the same consultation shows something else was going on.

Usaf’s submission was in response to Parliament’s consultation on a limited number of clauses in the Bill. Yet the submission went beyond that and, containing multiple errors, unreservedly enthused about the Bill’s expanded “fair use” clause and other copyright exceptions. It supported the panorama exception for photographs and films and commented on needle time for music, despite this not being something in which universities would be expected to have an interest.

A comparison between the Usaf submission and an early version of the ReCreate submission shows convergence on 10 items and differences on none.

An error in an esoteric point about collecting societies in both documents was a dead giveaway, showing that the Usaf submission had been written to reflect ReCreate’s views. With the support of professors from the American University Washington College of Law, who had disclosed that their work was funded by a grant from Google, ReCreate’s submission was corrected, but it was not followed through in the Usaf submission. Usaf’s error stood in contrast to all the other submissions and was noted by Parliament’s legal adviser.

The Usaf submission was also remarkable for what it did not address. The compulsory royalty provisions for authors in the June 2018 version of the Bill would have been a bar to any scientific journal publishing the work of a South African academic, since they conflict with the standing practice of there being no monetary remuneration for the publication of academic articles.

The copyright exception allowing a student to cut and paste copyright material into an assignment, thesis or dissertation, did not require the author to be acknowledged, thereby inadvertently permitting plagiarism under copyright law. Both provisions were improved— but not perfected— months later following advice from the panel of experts of Parliament’s portfolio committee on trade and industry.

Usaf’s submission also failed to mention an all-encompassing contract override clause that will have profound implications for universities’ relationships with publishers and collective management organisations.

Differences of opinion on whether copyright exceptions apply to given uses will now have to be determined by a reconstituted copyright tribunal or by order of court. Unlike in any other country in the world, every mutually agreed settlement of such a difference will have to be made an order of court to have effect in law, with a judgment recorded against the university as the defendant.

Usaf’s submission supported clauses in the Bill not relevant to universities. It did not deal with clauses that go to the heart of ethics and practices at institutions of higher education, or even consider academic authors and university presses. One has to ask whether universities gaveUsaf the authority to make this submission.

Unisa made a completely different submission through its research chair in law, society and technology. Stellenbosch University wrote to the consultation’s email distribution list that the Usaf submission did not reflect its views and that it and other universities had not been consulted about it.

If Usaf’s submission, based as it was on ReCreate’s position, did not follow a meaningful internal approval process, then one is compelled to conclude that it did not represent the collective view of South Africa’s universities and that its platform was taken over by ReCreate.

That the submission wanted to create the impression that there was broad support for the Bill is apparent from its first paragraph, which states that Usaf is “the national representative for 26 public universities in South Africa” and “the voice for the sector.”

ReCreate followed through after the Bill had been passed with an open letter in April 2019, calling for the president’s immediate assent to the Bill. An earlier draft of the open letter claimed “our organisations represent over half a million South Africans” and a drafting note assumed that Usaf would co-sign.

But when Usaf and other institutions on whose support ReCreate relied did not co-sign, ReCreate still sent its open letter to the president with the same unsubstantiated claim about the half a million South Africansit represented.

On Monday there will be an “indaba” at Wits University about the “impasse” on the constitutionality of the Bill, organised by the same people behind ReCreate, with the topics framed in the terms of ReCreate’s arguments why the Bill is supposedly constitutional. Yet the invitations to the indaba make no mention of ReCreate, presenting it as being co-hosted by Wits University and the American UniversityWashington College of Law.

Fringe views on copyright held by ReCreate and its supporters have been presented as academic opinion in support of the highly controversial Bill, not only in the submission to Parliament written for Usaf.

These fringe views had privileged access to the government at the expense of creators and investors in the creative economy, and are on the brink of being foisted onto South Africa as law.

The country’s benefits from mutual international recognition of copyright and its creative economy have already encountered the stress resulting from the government having heeded this siren call without having conducted proper assessments and policy formulation in developing the Bill.

André Myburgh is a South African lawyer based in Basel, Switzerland, where he specialises in copyright policy and legislation internationally. He was a member of the panel of experts established by the portfolio committee on trade and industry to advise on the Copyright Amendment Bill. He also advises the Copyright Coalition for South Africa, whose members have challenged the constitutionality of the Bill

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Andre Myburgh
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