We shouldn’t wait any longer for our right to create

AS CREATORS, we are users of cultural products. Our work can be blocked through censorship by copyright owners for uses that would be freely permitted elsewhere.

Moreover, we often do not own the work we create. And many of us have been disadvantaged by an exploitative system that fails to pay us for our work.

Growing the digital economy requires innovation. South Africa is at a disadvantage compared to other countries that have flexible copyright laws which permit software, game and other developers to use digital content for technological uses as long as they do not compete with copyright holders.

For example, for a video game set in Joburg, it should not be a problem to feature famous landmarks like the Nelson Mandela Bridge. In the US, Canada, India and other countries such use would be considered fair; in South Africa the law is less clear.

There is a process to reform our copyright law which could address some of our grievances and better enable creative production.

The Copyright Amendment Bill drawn up by the Department of Trade and Industry (dti) last year included many of the creator rights we need, including the right to “fair use”.

Fair use was limited to uses that do not substitute for the work in the market of the original, protecting markets for our work while liberating our creative capacity.

The Copyright Amendment Bill contained many other useful and wellcrafted provisions, including on educational, disability and library uses.

Some have lobbied against fair use for what we think are misguided reasons. Some think that such rights would harm South Africa.

This, despite evidence that expanding fair use and other creator rights in other countries has promoted industry growth, innovation, scholarship, and entertainment and publishing industries.

Last week before Parliament, the dti and Department of Arts and Culture endorsed a two-phased approach with some issues delayed. But justice delayed is justice denied.

We should not have to wait any longer for our rights to create.

The fair use rights we need include the right to: Parody and satire. Incidental use of background content. Use of works in public places. Digital archival. Creation of educational work.

Non-expressive uses on the internet, including indexing, data mining and searching.

Remixing, -interpreting.

Creation of accessible copies for people with disabilities. Adaptation to future technology. Recently, a diverse group of creatives, including ourselves, formed ReCreate, a coalition in favour of balanced copyright reform. ReCreate calls on the government to enact all these creator rights, either directly or by an open fair use or fair dealing exception.

We also call for the Copyright Act to respect our right to own works we create. Current law that makes the commissioner or funder of many works the default owner should be repealed.

We finally call on the law to protect our right to earn from our work. Collective management organisations (CMOs) transforming and re- run under-regulated monopolies that charge others for our work, claim to “represent” us, but are free to waste our money. CMOs must have a fiduciary duty to creators, be subject to member governance, and be subject to government oversight on the reasonableness of their expenditure and payouts.

These are vital and urgent issues that must be addressed now, not at a later stage. If there is a two-stage approach, the interim arrangement must include fair use or open fair dealing and promote our rights to own and earn from our works.

This would create a fair-use trial period so that creators have reasonable assurance that they can practise essential activities while the fine details of specific exceptions are worked out. The trial phase would allow a test of the claims that fair use will cause harm.

Forward to a creative economy that works for all South Africans. Rehad Desai, independent producer; Lulamile Mohapi, video game developer; Ben Cashdan, TV producer; Tusi Fokane, free expression campaigner