In good copyright law we’re all important
SOUTH Africa is in the midst of reforming its copyright laws. In the past week, the Freedom of Expression Institute (FXI) joined up with the Department of Trade and Industry (DTI), American University Washington College of Law (AUWCL) and Google South Africa to hold a series of events under the banner of Copyright Week, to raise awareness among government, creatives, platform providers, civil society and other stakeholders on the highlights of the Copyright Act Amendment Bill.
During our engagements, it was clear that there was a great deal to applaud in the current draft bill. With a few modest changes, the bill will fully live up to its lofty goals.
What was also clear was that the copyright laws’ importance to culture and innovation was well-known and rightly celebrated – not only encouraging authors, musicians, visual artists and performers, but also entrepreneurs, in creating new products and services that provide access to copyrighted works.
Doing the task well requires acknowledging that we are all important, that we all have a role to play in a healthy, creative and innovative society. There is no hierarchy of interests, no favoured class of people or companies. The digital revolution has been a great leveller: It has brought to South African artists the ability to create new works on their own without the need for expensive studios and without giving away their rights to gatekeepers. A smartphone is all you need to create, edit, and distribute your work to the world.
The law serves society, not the other way around. A reformed copyright law must match how South Africans live now, while still providing flexibility for future technological developments. A dynamic society requires dynamic laws. Dynamic laws are guided by principles and not by detailed rules. The common law fair use doctrine, developed to mediate disputes between authors, has directly led to the creation of more and richer content works, increased knowledge (through commentary and criticism) and the encouragement of entire industries to develop innovative products, including the video cassette recorder, the iPod, internet search engines, text and data mining, and cloud computing.
In light of this, the 2015 draft of the reform Bill helpfully included a fair use provision. It also included the flexible language “such as” when referring to the purposes for which fair use may apply. In the latest draft “such as” was deleted. One can think of purposes that should be allowed: scholarship, education, comment and criticism, news reporting, parody, satire. Most fair use and fair dealing laws call these purposes out and appropriately so. But there have always been new types of uses because there are always new types of creativity and new technologies enabling new uses. That is the promise of creativity and technology – to innovate, create new works, new products and new services that you hadn’t thought of. It is for this reason that courts and the US Congress never attempted to develop the equivalent list of fair use purposes as they did for the factors to be applied. We urge the South African government to reinstate the important “such as” language for fair use purposes.
Another area for improvement that will reflect the way African artists create is a non-commercial remix or user generated right, as seen in Section 29.21 of the Canadian copyright act. Remixes are an integral part of our creative society. African artists have joined together to create the African Digital Network, “an online collective, a creative space, where digital artists, enthusiasts and professionals can seek inspiration, showcase their artistry and connect with emerging artists”. A 2005 book, Africa Remix: Contemporary Art of a Continent, is a 224 page examination of how 80 African creators from 30 countries (including South Africa) working in film, documentary photography, fashion, sculpture, painting, and music, literature, use other works as a source of inspiration for their new, remixed or mashed-up works. A remix or user generated exception will ensure that this creativity continues.
A final area worth mentioning is linking. The current draft of the Bill leaves the status of digital hyperlinks uncertain. Linking is the very basis of the world wide web, just like a card catalogue of old was the basis of libraries. As Tim Berners-Lee, the inventor of the web, noted: “The ability to refer to a document (or a person or any thing else) is in general a fundamental right of free speech, to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else.” Linking is not transmitting or exploiting a work. It is merely providing information about where to find a work and thus should not be considered a violation of copyright owners’ right of communication of the work to the public.
Due to their critical role in providing information and to the architecture of the world wide web, the draft copyright bill should be amended to either provide an express exception for linking, or, alternatively, that the communication to the public right be grounded in the server test. South Africa has the benefit of being able to learn from the positive and negative ways that the issue has been addressed in other countries. Positive examples include Canadian Supreme Court decisions, Section 512(d) of the US Copyright Act and US court decisions.
In contrast, uncertainty in Europe has led to a host of opinions and rulings altering and amending the legal status of hyperlinking. Complexity for a foundational tool of the internet has nothing to commend for South Africa. A simple exception, or a construction of the communication to the public right that is based on the simple-to-understand server test, will serve all much better.
‘Linking is the very basis of the world wide web.’
Tusi Fokane is an Executive Director at the Freedom of Expression Institute