Department repeats mistakes of others in bid to alter copyright law

Bungled approach to payment of musicians’ royalties is one example of the shortcomings of poorly drafted bill

The parliamentary portfolio committee on trade and industry is debating a bill to amend the 1978 Copyright Act. The bill, which originated with the Department of Trade and Industry, is intended to give legacy industries such as publishing and civil society institutions such as libraries at least some of the concession they have sought for years, sometimes decades.

While the issues at stake are clearly of paramount national importance and not always easy to resolve, the resulting bill is a backward-looking amalgam of provisions poorly aligned with the National Development Plan. Indeed, it would seem to be in contradiction with a related policy recently released by the same department, the draft intellectual property policy of 2017, recently approved by the Cabinet and under finalisation, which calls for a “greater emphasis on innovation, improved productivity, an intensive pursuit of a knowledge economy and the better exploitation of comparative and competitive advantages”.

Much is missing from the process to amend the Copyright Act, including representation of less-established constituencies — for example, musical performers. The technical quality of the bill has been subject to unsparing criticism from several quarters. The portfolio committee dealing with the bill appears determined to resolve problems with the drafting and to eventually create passable, user-friendly legislation. But Parliament has other business and cannot continually manage copyright in response to quickly changing technology. The responsibility of assessing law and policy in light of the state of technology and society is usually the role of departments.

In contrast to the copyright process, the draft national intellectual property policy, which was drafted by another department within the Department of Trade and Industry, exhibits an expert balance between the needs of the country and the constraints of the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights treaty framework and demonstrates how intellectual property can be made to serve development. Should Parliament pass suitable legislation, the Department of Trade and Industry could deal with new technological developments through the formulation of regulations. But where will the department find the expertise to draft and administer tech-savvy, strategically aligned copyright regulations when there is no evidence of such thinking in the bill?

In the early years of the new millennium, many developed countries responded to the internet by making laws that gave much more power than was due to copyright intermediaries. They promoted sweeping powers for copyright owners and managers at the expense of creators and users. The inadequacies of this approach quickly became apparent in the countries that tried it.

SA should learn from the experiences of these countries and avoid the traps they fall into. However, there isn’t much evidence in the bill of any lessons learnt from any other countries. In other countries, laws that prevent people from modifying technology around copyrighted goods are creating large unanticipated problems.

US farmers are prevented from repairing their tractors because this involves changing software controlled by manufacturers. Data analysis driven by artificial intelligence promises research breakthroughs, but in Europe it is being stymied by laws that allow for proprietary rights over databases.

In SA, the Copyright Amendment Bill has copied, rather than avoided, many of the approaches that have proved so problematic. Even the proposed solution to the scandalous nonpayment of royalties to working musicians and performers, especially for use of their music in ring tones, is likely to aggravate rather than resolve the problem.

A blockchain-enabled micropayment system could automate the process, reduce the overhead of collecting royalties for performance and put money in the pockets of musicians. But in its current form, the bill requires that there be one collecting society for each category of right, in effect preventing innovators with new technologies from entering the sector and forcing the copyright system to deliver value to creators and users even if it is at the expense of intermediaries.

The one future-orientated provision that one could accurately describe as being almost in the bill is fair use. Flexible provisions that enable judges to craft new rules in response to technological change give a competitive advantage to countries that use them; fair use in the US is perhaps the best-known example. In a fashion that is typically careless, the bill as drafted contains a provision that is entitled “fair use” but that is, in fact, not fair use but rather a fixed list of narrow exceptions.

Publishers in SA have claimed that they will be harmed by fair use, even though evidence demonstrates that publishing in the US and elsewhere flourishes alongside fair use.

While legacy industries have been less welcoming of the bill, one could argue that it has finally placed long-delayed public interest issues on the table.

The book famine for blind people should be ended and they should be given the same access to knowledge that everyone else enjoys. Earlier in the decade, SA vocally supported international efforts to enable the crossborder exchange of knowledge for blind people, efforts that culminated in the Marrakesh Treaty in 2013. Surprisingly, SA hasn’t yet joined the treaty. Perhaps this is because some of the officials concerned think it necessary to first pass legislation that the treaty would require. This is not the case.

Neither South African law nor the treaty require legislation to be passed first. It is hard to think of anyone who opposes provisions that will allow visually disabled people to learn and grow equally, and yet these provisions may become the victim of disagreement on other issues in the bill, especially if they prevent the bill from being signed into law.

Teachers and librarians have long sought more appropriate exceptions for learning, at least since the current legislation was passed in 1978. Their concerns have become more urgent with each wave of technological change.

Proprietary software vendors and record companies have demanded provisions criminalising the hacking of copy controls for more than a decade, even though experts have pointed out that functionally equivalent legislation has been in place since 2002.

With the bill finally before Parliament, these longstanding issues will finally have a hearing. When this opportunity passes, it will be decades before copyright law comes up again for debate. Who will ensure that it aligns with SA’s development strategy in the meantime?