Law changes will make writ­ers poorer

CityPress - - Voices - MON­ICA SEEBER voices@city­press.co.za Seeber is the founder of An­fasa. This is an edited and extended ver­sion of a let­ter sent to An­fasa mem­bers last week

For the past few years, the Copy­right Amend­ment Bill has been in de­vel­op­ment. The Aca­demic and Non-Fic­tion Au­thors’ As­so­ci­a­tion of SA (An­fasa) has been ac­tive all this time; has spo­ken about au­thors’ rights at con­fer­ences; par­tic­i­pated in count­less con­sul­ta­tive meet­ings; and has sent de­tailed sub­mis­sions to the depart­ment of trade and in­dus­try. Last year, an An­fasa del­e­ga­tion went to Par­lia­ment to present the case of au­thors to the par­lia­men­tary port­fo­lio com­mit­tee on trade and in­dus­try.

Noth­ing we have said has had any ef­fect. The pow­ers that be are de­ter­mined that copy­right should be driven by “ac­cess” – that learn­ing and knowl­edge pro­duc­tion will be stunted un­less writ­ten works may be copied and “re-ver­sioned” (digi­tised, trans­lated or re-worked into an­other form) with­out the au­thor’s con­sent.

The his­tory of the bill be­gan when a del­e­ga­tion of mu­si­cians went to the pres­i­dent to com­plain that they were “dy­ing in poverty” as their mu­sic roy­al­ties were not be­ing paid be­cause of out­dated copy­right leg­is­la­tion. The pres­i­dent lis­tened sym­pa­thet­i­cally and set up a com­mis­sion to in­ves­ti­gate and make rec­om­men­da­tions for changes to the Copy­right Act.

The idea was to im­prove the law for cre­ators – specif­i­cally for mu­si­cians, but also for au­thors of writ­ten works and for vis­ual artists. But this ran into strong op­po­si­tion from those who wished to dis­sem­i­nate books and jour­nal ar­ti­cles freely to pupils and stu­dents un­der the prin­ci­ple of “ac­cess”.

The Copy­right Amend­ment Bill al­lows works in­tended “for ed­u­ca­tion” to be copied with­out per­mis­sion or pay­ment. There are con­di­tions at­tached – it is not quite so sim­ple – but the bot­tom line is that au­thors of books writ­ten for schools and uni­ver­si­ties will suf­fer a loss of roy­al­ties be­cause their books will be bought in much smaller num­bers. Hard­est hit will be au­thors writ­ing in in­dige­nous lan­guages as their read­er­ship among the gen­eral pub­lic is small, and their books are only bought in large num­bers when pre­scribed for schools and uni­ver­si­ties.

Some claim that the over­rid­ing im­por­tance is “ac­cess” and that copy­right law “locks away” in­for­ma­tion. Some even claim that copy­right pre­vents peo­ple from creat­ing! Al­though copy­right is a sub­ject that eas­ily in­flames emo­tions, it is of­ten poorly un­der­stood.

An­fasa sup­ports ac­cess. We do not write to lock our work away and hide it from read­ers – we un­der­stand that knowl­edge re­quires ac­ces­si­ble in­for­ma­tion.

How­ever, there are two points of con­tention. The first is that the cur­rent law al­ready al­lows free ac­cess in cer­tain spe­cial cases. What the bill should have done is clear up some vague pro­vi­sions and make the law clearer for layper­sons, rather than bring­ing in a new sys­tem of copy­right ex­cep­tions based on the US prin­ci­ple of “fair use”, as this prom­ises years of copy­right con­fu­sion and re­course to the courts.

Fair use does not mean use that is fair. There are two seem­ingly sim­i­lar doc­trines that al­low a work to be copied with­out per­mis­sion. One is called “fair deal­ing” and the other is “fair use”. The fun­da­men­tal dif­fer­ence be­tween them is that, in fair deal­ing, the law says what is fair and what the al­low­able uses are, whereas in fair use, the guide­lines are less pre­cise and it is up to a court of law to de­cide whether the use has been “fair”.

Fair use opens the door to il­le­git­i­mate uses that can only be fought out in the courts and that favour the user (of­ten a pow­er­ful in­sti­tu­tion like a univer­sity or even a multi­na­tional com­pany). Which au­thor can af­ford to take Google to court?

Sup­port­ers of fair use line up be­hind US law and are lob­by­ing to in­tro­duce it into many coun­tries. Other coun­tries are hold­ing out be­cause they see the US law lob­by­ists as be­ing hell-bent on spread­ing their in­flu­ence. Ex­ten­sive stud­ies show that the fair use sys­tem is very detri­men­tal to cul­tural de­vel­op­ment largely be­cause of its dis­re­spect for the cre­ator. Un­for­tu­nately, it looks like South Africa is about to be “cap­tured”.

The sec­ond point of con­tention is that copy­right law should pro­vide a bal­ance be­tween the in­ter­ests of cre­ators and the needs of so­ci­ety. The Copy­right Amend­ment Bill has fa­tally dis­turbed that bal­ance. In the bill, the so-called right of the user trumps the right of au­thors to de­rive eco­nomic ben­e­fit from their work – in other words, to earn a liv­ing from their talent and labour.

The bill will soon be pre­sented to the Na­tional Assem­bly and will pass into law. The pub­lish­ing in­dus­try (largely based on school­books, as are all African pub­lish­ing in­dus­tries) will be se­ri­ously dam­aged. Ma­jor ed­u­ca­tional pub­lish­ers may close down, which will lead to the loss of jobs. Small black-owned com­pa­nies that de­pend on the schools mar­ket will go un­der. In that sce­nario, lo­cal au­thors will find it dif­fi­cult to get a pub­lisher. Au­thors writ­ing in in­dige­nous lan­guages will be out on a limb. Fewer books will be writ­ten. For­eign pub­lish­ers will boy­cott us if their books can eas­ily be copied in­stead of sold. Our read­ing and writ­ing cul­ture will suf­fer a blow from which it may never re­cover.

This mes­sage ad­mits to some gen­er­al­i­ties. There is much more wrong with the bill than is pointed out here. On the other hand, the bill is not all bad. Mu­si­cians ben­e­fit from it be­cause it fa­cil­i­tates the dis­tri­bu­tion of their roy­al­ties. Vis­ual artists ben­e­fit be­cause it pro­vides an “artists’ re­sale roy­alty”. Au­thors of books gain noth­ing – in fact, they lose.

Could some last-minute in­ter­ven­tion hap­pen? Per­haps a re­spected au­thor will stand up and force­fully re­mind the law­maker that un­re­stricted “ac­cess” has mul­ti­ple con­se­quences, some of them un­in­tended – and that as many if not more au­thors die in poverty than mu­si­cians.

Writ­ers are the con­science of our coun­try, and yet their sta­tus in so­ci­ety and their con­tri­bu­tion to cul­tural her­itage, so­cial co­he­sion and na­tion-build­ing isn’t recog­nised by the law­maker. A luta con­tinua!

PHOTO: MUNTU VI­LAKAZI

New bill will see au­thors such as Zuk­iswa Wan­ner lose out

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.