/ 24 June 2020

See the light and pass the Copyright Amendment Bill

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


On June 16 we celebrate the resistance by the youth of Soweto and across South Africa to  oppressive laws that limited their future education prospects based on race. In 1976 black school students left their desks to protest the imposition of Afrikaans as a medium of instruction. The massacre of students that followed was one of the darkest days in the history of apartheid. 

Sadly, 44 years later on June 16 2020, we faced another dark day for the prospects of our young people. In a letter which received little media attention, President Cyril Ramaphosa referred the Copyright Amendment Bill back to Parliament. This move by the president could dash the future education and employment prospects of millions more young South Africans. 

The Copyright Amendment Bill, drafted by the department of trade and industry over the past decade and passed by our Parliament, ready for the president’s signature in March 2019, sought to open up the doors of learning and culture to young people. In fact, its spirit was very much in line with the aims of the Freedom Charter that inspired Tsietsi Mashinini and his comrades in 1976. 

Strict enforcement of copyright on books and other publications through the outdated Copyright Act of 1978, has been hampering access to learning. The high prices charged for academic textbooks in South Africa (often higher than the prices charged for the same books in the United States) are heartless and discriminatory. If publishers refuse to make books available affordably, the new Copyright Amendment Bill would have allowed students and teachers to access the books in the interest of poor learners. It was one of the issues raised by the #FeesMustFall movement. 

Similar provisions in the Bill opened the doors to high-tech innovation by local creators and entrepreneurs. For example, if game developers in emerging technology hubs such as Cape Town or Braamfontein wanted to adapt ideas from international video game titles for the local market, that would be considered “fair use”. If local TV and film producers featured clips of historical movies in their productions they would similarly be exempt from strict copyright controls. This is especially important for Africa, since the majority of all copyright royalties currently flow to the US and Europe. 

Creators in the US have enjoyed these fair use provisions for generations, and fair use has helped to build vibrant creative and tech sectors in countries such as South Korea. But it was too much for US movie studios to allow an African country to adopt a similar law. Publicly and privately, the Motion Picture Association of America teamed up with multinational book publishers and billion-dollar record companies to pressure our president not to sign into law a bill that would have given our creators a chance to compete and our students a chance to learn.

No matter that the Copyright Amendment Bill (and associated Performers Protection Bill) also sought to empower blind people to access copyrighted works in accessible formats. Or that the Bills sought to give South African actors access to a slice of the income when a popular drama is sold abroad, or to more easily claim ongoing royalties alongside their foreign counterparts in international movies. Or that the bills aimed to give libraries the right to archive important historical works. 

Despite this long list of benefits of the legislation, it was vehemently opposed by an alliance of vested interests, from huge publishers, record companies, Hollywood Studios, global content streaming services and our own media mega-monopoly Multichoice/DStv. Other opponents included royalty collecting bodies — who have often been accused of squandering millions that should have been paid to artists  — and who would have been regulated by the Bills. 

In a move reminiscent of the fight with US drug companies for affordable Aids medicines in the 1990s, the US trade representative even threatened to remove trade benefits if South Africa passed the Copyright Amendment Bill. 

Thousands of activists, teachers, learners, librarians, entrepreneurs, freedom of expression advocates and grassroots creatives had hoped Ramaphosa would resist the pressure to ditch the Bills. But in an era when South African politicians are often seen cap-in-hand, begging for foreign investment, it is not surprising that our president capitulated. 

In a stinging rebuke to his own ANC comrades who spent 10 years drafting the legislation, he said the Bills failed to pass constitutional muster. He quoted extensively from the arguments made by the vested interests who had lobbied against the bills. He repeated their false assertions that there had not been enough consultation. 

The president had sat on the Bills for over a year until BlindSA’s constitutional court challenge caused him to act. Could it be that he didn’t have time to apply his mind properly given all that is going on in the country? We trust that he did not merely cave in to the pressure from the powerful lobbies, something that would be a dereliction of his duty. 

The president has passed the Bills back to the National Assembly. That’s fortunate for those of us who still have faith in South African democracy. We know that our elected MPs from all parties will look carefully at the president’s objections, and reject those that are not based in law or fact. We know that the portfolio committee on trade and industry will execute its duty to look only at the facts and not be swayed by threats or lies by those who seek to become richer from copyrights at the expense of the masses. 

This is a vital continuation of the struggle for equality and opportunity by the youth of 1976. 

Mugwena Maluleke is general secretary of the South African Democratic Teachers Union, Tebogo Sithathu is a musician and director of the Independent Beneficiaries Forum, Jack Devnarain is chair of the South African Guild of Actors, Tusi Fokane and Ben Cashdan are founders of ReCreate South Africa and Jace Nair is CEO of BlindSA