Fringe views replace universities’ collective position

Universities South Africa (Usaf) seeks to promote optimum conditions for universities to thrive in South Africa. Therefore, it made no sense when its submission to Parliament in support of the Copyright Amendment Bill implicitly accepted a provision that would have meant that plagiarism will no longer be copyright infringement and did not recognise that the compulsory royalty provisions for authors would hinder academics writing for peerreviewed journals.

A formatting error at the end of the document showed that the Usaf submission of July 2018 was written by one of the most vocal supporters of the numerous copyright exceptions in the Bill, a founding member of pro-bill lobby group Recreate, who is based at the University of the Witwatersrand.

Universities are major consumers of copyright materials and will demand greater flexibility to work with these materials and to make them accessible to their faculties and students — that is, for improved copyright exceptions — and they cannot be faulted for this.

But a study of the Usaf submission compared with the submission made by Recreate in the same consultation shows something else was going on.

Usaf’s submission was in response to Parliament’s consultation on a limited number of clauses in the Bill. Yet the submission went beyond that and, containing multiple errors, unreservedly enthused about the Bill’s expanded “fair use” clause and other copyright exceptions. It supported the panorama exception for photographs and films and commented on needle time for music, despite this not being something in which universities would be expected to have an interest.

A comparison between the Usaf submission and an early version of the Recreate submission shows convergence on 10 items and differences on none.

An error in an esoteric point about collecting societies in both documents was a dead giveaway, showing that the Usaf submission had been written to reflect Recreate’s views. With the support of professors from the

American University Washington College of Law, who had disclosed that their work was funded by a grant from Google, Recreate’s submission was corrected, but it was not followed through in the Usaf submission. Usaf’s error stood in contrast to all the other submissions and was noted by Parliament’s legal adviser.

The Usaf submission was also remarkable for what it did not address. The compulsory royalty provisions for authors in the June 2018 version of the Bill would have been a bar to any scientific journal publishing the work of a South African academic, since they conflict with the standing practice of there being no monetary remuneration for the publication of academic articles.

The copyright exception allowing a student to cut and paste copyright material into an assignment, thesis or dissertation, did not require the author to be acknowledged, thereby inadvertently permitting plagiarism under copyright law. Both provisions were improved — but not perfected — months later following advice from the panel of experts of Parliament’s portfolio committee on trade and industry.

Usaf’s submission also failed to mention an all-encompassing contract override clause that will have profound implications for universities’ relationships with publishers and collective management organisations.

Differences of opinion on whether copyright exceptions apply to given uses will now have to be determined by a reconstituted copyright tribunal