In good copy­right law we’re all im­por­tant

The Star Early Edition - - INSIDE -

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

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