Copyright must be fair and balanced to all concerned

Do authors and publishers need to be protected by traditional copyright to continue being creative? Or do #FeesMustFall supporters have a right to free or at least low-cost access to copyright materials irrespective of the impact on authors and publishers? Or are there different ways to satisfy all needs and expectations?

These questions face members of parliament as they deliberate the controversial Copyright Amendment Bill that was submitted to parliament in May.

The bill proposes a number of positive steps to bring South Africa’s copyright legislation into the internet age. The Publishers’ Association of South Africa (Pasa) – representing most of South Africa’s commercial publishers – supports such steps, as well as the general initiative to review and improve the current Copyright Act that dates from 1978.

However, Pasa has serious concerns about flaws in the bill and the preceding consultation.

For example, Pasa finds it unacceptable that the bill was submitted in the absence of a completed intellectual property policy – it seems self-evident in a democratic state that policy is approved before legislation is developed.

In addition, Pasa views the consultation leading to the bill as insufficient.

A third criticism is the lack of an independent assessment of the potential socioeconomic impact of the bill.

Pasa’s fourth criticism relates to a worrying number of errors and mistakes in the bill. To mention one, the bill implies welcome support for international copyright treaties, but insufficiently deals with the implementation.

One such treaty is the WIPO Copyright Treaty (WCT), which includes the “right of distribution”: the right to “authorise the making available to the public of the original and copies of a work through sale or other transfer of ownership”.

This right has not been written into South African legislation, yet the bill also does not introduce this right.

Pasa suggests alternative steps. Firstly, modernise the Copyright Act by fast-tracking the uncontroversial, urgently needed themes in the bill. Other themes that require more thought and analysis should be considered in a moderate process.

One example of immediate steps is to ratify both the WCT and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

Ratifying the WCT will open the door to bringing South Africa’s legislation into line with modernday requirements for the effective management of digital rights.

Ratifying the Marrakesh Treaty could spur parliament on to consider an exception to copyright that allows easier access for printimpaired persons.

A moderate process would carefully consider and consult on the scope and impact of changes to modernise the Copyright Act. For example, investigate developing exceptions for the temporary reproduction of copyright works on computers and online to the extent they are necessary for proper functioning, but not in a way that prejudices copyright owners.

Copyright must be fair and balanced to all concerned. Copyright laws should recognise the public interest both in support of, for example, the institutions that require content and the publishers that provide the services. Laws should balance the interests of these partners who both serve the public good.