On the Copyright Amendment Bill
or by order of court. Unlike in any other country in the world, every mutually agreed settlement of such a difference will have to be made an order of court to have effect in law, with a judgment recorded against the university as the defendant.
Usaf’s submission supported clauses in the Bill not relevant to universities. It did not deal with clauses that go to the heart of ethics and practices at institutions of higher education, or even consider academic authors and university presses. One has to ask whether universities gave Usaf the authority to make this submission.
Unisa made a completely different submission through its research chair in law, society and technology. Stellenbosch University wrote to the consultation’s email distribution list that the Usaf submission did not reflect its views and that it and other universities had not been consulted about it.
If Usaf’s submission, based as it was on Recreate’s position, did not follow a meaningful internal approval process, then one is compelled to conclude that it did not represent the collective view of South Africa’s universities and that its platform was taken over by Recreate.
That the submission wanted to create the impression that there was broad support for the Bill is apparent from its first paragraph, which states that Usaf is “the national representative for 26 public universities in South Africa” and “the voice for the sector.”
Recreate followed through after the Bill had been passed with an open letter in April 2019, calling for the president’s immediate assent to the Bill. An earlier draft of the open letter claimed “our organisations represent over half a million South Africans” and a drafting note assumed that Usaf would co-sign.
But when Usaf and other institutions on whose support Recreate relied did not co-sign, Recreate still sent its open letter to the president with the same unsubstantiated claim about the half a million South Africans it represented.
On Monday there will be an “indaba” at Wits University about the “impasse” on the constitutionality of the Bill, organised by the same people behind Recreate, with the topics framed in the terms of Recreate’s arguments why the Bill is supposedly constitutional. Yet the invitations to the indaba make no mention of Recreate, presenting it as being cohosted by Wits University and the American University Washington College of Law.
Fringe views on copyright held by Recreate and its supporters have been presented as academic opinion in support of the highly controversial Bill, not only in the submission to Parliament written for Usaf.
These fringe views had privileged access to the government at the expense of creators and investors in the creative economy, and are on the brink of being foisted on to South Africa as law.
The country’s benefits from mutual international recognition of copyright and its creative economy have already encountered the stress resulting from the government having heeded this siren call without having conducted proper assessments and policy formulation in developing the Bill.