Copyright proposals‘go too far’
New law needs to delicately balance competing interests
BACK in 1978, when South Africa’s copyright law was last updated, the meaning of the word “digital” was limited to numbers, fingers, thumbs and toes. Nearly 40 years later, “digital” is the token of a technological revolution that impinges on every facet of life. It is held up as the greatest democratising agent in the world of knowledge and information since the invention of the printing press in the mid-1400s.
Digital has become synonymous with access – and that’s the rub when it comes to copyright.
While our 40-year-old legislation – widely considered to be sound on basic principles – no longer matches the challenges, South Africa’s new Copyright Amendment Bill has attracted criticism, particularly from the publishing and music industries, for going too far in potentially enabling consumers to use material without having to pay for it.
The bill is broadly recognised as a necessary step towards bringing South Africa in line with vast digital-age changes in creating and disseminating books, study texts, songs, images, movies and broadcasts, but it includes provisions for what publishers call “across-theboard overriding of contractual terms” in the name of fair use, and a controversial provision that the state will assume ownership of copyright of works it has funded.
Detractors are pinning their hopes on lawmakers being willing to alter the draft law to ensure what they believe must be a fairer balance between access (“fair use” exceptions to enable people to use information without having to pay copyright or royalties) and the right of creators of content to earn an income from their efforts.
Not everyone agrees – as debate in and around this month’s public hearings on the new bill by Parlia- ment’s portfolio committee on trade and industry reveals.
South Africa’s publishing industry – more than 60% of whose output is education material for schools and universities – is so concerned at the implications of the law (and the apparent absence of any government study of the economic implications) that it commissioned its own economic assessment by PricewaterhouseCoopers International (PwC).
At the heart of the argument is the balance between the rights of creators of content and its users, and – through royalties or payments – ensuring a stable incentive for creative people or companies to continue creating and innovating and therefore ensuring economic and social development and an expansion of knowledge.
As the PwC report puts it: “Limiting the protection afforded to the authors, creators and innovators of creative works acts as a disincentive to such activities and risks robbing society of the benefits of such creativity.
“At the same time, unduly restricting the access of society to such works limits the public good that can be derived from sharing their contents.”
If it is a question of degree, critics of the Bill say its definition of “fair use” is too wide and will have dire consequences.
The Publishers Association of South Africa (Pasa) – which commissioned the PwC study – said last week the “free-of-charge uses that will be permitted by the ‘fair use’ provision and exceptions for educational and academic activities in the Bill (will mean) no remuneration will be payable for reproductions and other acts which would have needed permissions and licences … under the current legislation”.
Pasa is the country’s largest publishing industry body, representing large and small producers of nonfiction, fiction, education, academic and trade publications.
In a briefing, Pasa warned that the PwC assessment predicted a “weighted average decline in sales” of 33%, a R2.1bn drop in sales revenue, a rise in imports and drop in exports, and a “weighted decline in employment” of 30%, equivalent to about 1 250 full-time jobs.
It said 89% of publishers surveyed predicted that promulgation of the law in its present form would harm them, leading to “restructuring, retrenchments and business closure”.
Pasa’s executive director and a member of the Copyright Alliance, Mpuka Radinku, said publishers welcomed “one of the main goals” of the Bill in bringing the country’s 1978 law up to date, but believed “many provisions … will need to be re-evaluated, reconceptualised and rewritten” as the law’s “overbroad exceptions are to the prejudice of authors and publishers”.
Canada has been down a similar road, an experience examined by PwC, which notes that its findings “are largely consistent with a review of available literature on the impact of copyright reforms in Canada and the potential impact of similar reforms once contemplated in the United Kingdom”.
The contrary view has been offered by visiting American copyright expert, Sean Flynn, co-ordinator of the Global Expert Network on Copyright User Rights.
He has argued that a general exception for fair use is critical to stimulating and sustaining technological innovation and advancement, as it was “future proof ”.
Writing in Business Day last week, Flynn said: “Fair use doesn’t let corporations, or anyone else, avoid paying a licence fee to play, perform or copy a work in a way that substitutes for the market of the copyright owner.”
But it did “enable technological innovation by permitting new fair uses of works that were nor foreseen by the legislature. This attracts and enables technological investment without harming rights holders”.
Fynn said: “At American University … we tracked the economic outcomes in more open and less open copyright systems over 40 years. What we found was that high technology industries do much better in countries with fair use or other open copyright exceptions that can enable their work – and that entertainment and publishing industries do better too.”
Pasa, though, was not convinced. The association’s chairperson, Brian Wafawarowa, said authors and publishers were “in the business” of disseminating information, content and knowledge to the public, and were not “anti-access”.
“But a delicate balance needs to be struck between access and the legitimate expectations of rights holders. If it is imbalanced in favour of ‘users’, this will come at the cost of the production of quality and reliable information,” he warned.