/ 18 December 2019

USAf’s Copyright Bill rebuttal raises questions and answers none

(John McCann/M&G)
(John McCann/M&G)




The rebuttal to my article “Fringe views replace universities’ position on the Copyright Amendment Bill” (Mail & Guardian, November 29) by Professor Ahmed Bawa of Universities South Africa (USAf), “USAf’s position on Bill in line with its mission” (M&G, December 13), misses the point and —despite claiming that there are “too many inaccuracies” in my article — does not deal with any of the facts recounted there at all.

Bawa’s rebuttal raises the merits of the Copyright Amendment Bill’s “fair use” clause, a position with which I respectfully disagree. The Bill’s “fair use” clause allows far more instances of unpermissioned and unremunerated uses of copyright works than in the United States, from where the “fair use” principle originates.

The Bill does not import the balancing mechanism of compulsory statutory damages that exists in the US, and goes the other way with a contract override clause that will leave copyright owners and collecting societies with no choice but to take legal action in every dispute, whether copyright exceptions apply or not.

The Bill clearly has no “very specific conditions [that] will not give rise to a free-for-all situation”. The anticipation that illegitimate unpermissioned uses of copyright works will be encouraged because the law is very real.

But that is not what my article was about. Bawa’s rebuttal misses the point that I was referring to the June 2018 version of the Bill and how USAf’s error-laden submission of July 2018 did not even pick up the mistake in the then-current version of the Bill that one of the educational exceptions would have allowed plagiarism under copyright law.

One would expect members of institutional associations such as USAf to mutually agree on courses of action as important as taking a position on the wholesale revision of copyright law, especially since USAf’s submission emphasised at the beginning that it is the “representative body for 26 public universities in South Africa”.

Bawa’s admission that “one vice-chancellor said that more debate was needed” simply justifies my questioning USAf’s authority from its members — South Africa’s universities — to make the submission.

USAf was in the unique position of being able to get advice from at least a dozen professors who specialise in intellectual property law. In his rebuttal, Bawa unnecessarily — and, in my view, unjustifiably — casts aspersions on the independence of Unisa’s research chair of law, society and technology, thereby revealing that specialist professors were not consulted.

My article was thoroughly researched and there is nothing in Bawa’s rebuttal that persuades me otherwise than to stand by it and its inescapable conclusion that USAf’s platform was used by other vested interests to support the Bill in a manner that — despite its claims — does not represent the position of South Africa’s universities.

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