As we moved through the South African Book Fair (11-13 September) and the Durban Film Festival, which ended on 20 September, we have been reminded that South Africa is home to world-class creative thinkers and creators. What a treat to see young people piling into these fields to continue the work of older generations, who could only dream of this level of recognition, not only abroad, but right here at home. If we want to see this beautiful flowering of South African storytelling continue, we need to fight to create an environment that nurtures and protects our creators, and aids the post-Covid recovery of the sector.
Creating just such an environment has been the work of many years, and it continues to play out in Parliament. In August 2020, there were multiple presentations from the department of trade and industry to Parliament’s portfolio committee on the Copyright Amendment Bill that seeks to bring South Africa’s intellectual property laws into the 21st century. These meetings were the most recent stops in the Bill’s long journey through Parliament, to the presidency, and back to Parliament for reconsideration.
The legislative journey of the Bill should not be merely of passing interest to those of us invested in the future of the creative sector. Given that the Bill will decide the fate of the sector, it should be of fundamental concern.
The direct consequence of the passing of the Bill in its current form will be the death of any reward for our creators, and so too any hope for the future of our battered industry.
As the Bills are further scrutinised, we must resist the urge to tinker at the margins, solving only the procedural concerns while retaining the substance of the Bill. Contrary to the arguments in the portfolio committee, this is exactly the right time to reconsider “whether the general policy, the policy choices and trade-offs made in the Bill were appropriate and optimal”. If we don’t, the consequences could be dire.
We need all the issues on the table if Parliament is going to facilitate meaningful engagement that addresses the fundamental weaknesses of the Bill and supports the recovery and growth of the creative and cultural industries.
The “fair use” section is perhaps the most important of the clauses at issue in this legislation. We shoot ourselves in the foot if we turn engagement on this issue into a purely procedural matter, mechanically focused on correcting the flaws identified by the President.
South Africa currently has a “fair dealing” approach to copyright protections. We have a fixed list of exceptions to copyright protections. Only the uses of copyright listed in our legislation are excluded from copyright protections. This approach is simple and straightforward. Its key advantage is legal certainty.
The US-style “fair use” principle has fewer listed exceptions, but it is an open list. It simply provides examples of activities that would be exempted from copyright protections rather than a long list of fixed exceptions. It relies heavily on the courts.
When a digital innovation affects the application of copyright law, for example, US courts will look at the examples provided and the guiding questions set out in their law to decide whether this is the type of activity their legislature intended to exempt.
Nearly every country that has rejected the principle of fair use has done so because, among other reasons, they recognise that it opens the door to big tech firms exploiting creators’ content for free under the guise of fair use. It places too high a burden on artists to litigate if they want their creations protected.
In our declining economy and Covid-battered industry, we can’t afford to gamble with a system that could undermine vital livelihoods.
Despite this, in the Copyright Amendment Bill, our Parliament has created an exceptionally long list of exceptions and combined it with the signature open-ended fair-use formulation. The effect would be to leave creators thoroughly exposed to exploitation as more users claim their use is exempted from copyright protections by analogy to any one of the endless exceptions. At that point, artists would need to litigate every single instance of abuse, overwhelming our judicial system and bankrupting the artists in the process.
This hybrid formulation of fair use morphs into a grotesque distortion of US-style fair use when one considers that the US has harsh punitive measures for the abuse of fair use. South Africa’s bill has no punitive measures at all. By the time a South African creator has fought the court battles – likely to the Constitutional Court, since this is an entirely novel system in South Africa – the amount awarded to them would not cover their legal fees.
The “hybrid fair use” system created in the current Bill is not a middle road between fair dealing and fair use, but a Frankensteinian fair use combination of the two models, whose final product is the worst of both systems. If we can settle the critical issues around fair use, we can protect the livelihoods of our artists, soothe the misgivings of our trading partners and potential investors, and create an environment in which creators want to create and are fairly remunerated for doing so.
At the root of the issue is the question whether the IP regime in the Bill is what’s best for our creators, and whether it best protects and promotes our economic growth. This should be both our guiding principle and our ultimate goal.
A great number of industry players are equipped and ready to work through these questions with our lawmakers. Together, we can ensure that the final product at the end of this process is beneficial to the creative and cultural industries in particular, and to the South African economy in general. Collaboration is our only hope if we’re going to emerge from the current crisis with any creative sector to resuscitate.