The Sunday Independent

Copyright proposals‘go too far’

New law needs to delicately balance competing interests

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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.

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