A coalition of writers, publishers, directors, producers, performing artists and content creators is appealing to the Department of Trade and Industry (DTI) and Minister Rob Davies to reconsider the Copyright Amendment Bill, which the coalition says, has lost sight of its original intention to protect creators’ rights.

The Bill is expected to be adopted by the National Council of Provinces today.

The copyright legislation seeks to establish and protect the rights of creators and copyright owners, while widening access to knowledge and ideas by allowing the reuse of published material.

While the coalition commends the DTI for its attempt to allow users to access knowledge and artist works inexpensively, it is concerned that since the Copyright Review Commission Report, the Bill has changed character and carries unintended negative consequences for creative artists.

They contend that the Bill creates uncertainty around ownership and royalties and permits free reuse, which ultimately threatens production investment and will lead to job losses in various industries.

Academic and Non-fiction Authors’ Association of South Africa (ANFASA) Copyright Committee member and treasurer Monica Seeber tells Polity that, as part of the coalition, ANFASA is opposing sections of the Bill which sanction free use for education and other clauses relating to contracts and royalty payments, which she says are detrimental to authors.

“I speak for academic and non-fiction authors. The short-term effect will be that schools and, especially, universities will be able to make copies of books (or extracts from books) for free, so authors will lose the royalties they currently gain from book sales and photocopy licences. The long-term effect will be a shrinking writing and publishing industry. Less local material will be published, and more will be imported,” Seeber warns.

In its current form, the Bill does not balance the interests of creators with the needs of society, and is heavily biased towards the users, she says.

The coalition argues that content creators will be unable to gain financial benefit from their own work, thereby, removing the incentive to produce further works.

Trade Association the Recording Industry of South Africa CEO Nhlanhla Sibisi tells Polity that in its current form the Bill largely benefits big technology companies and not South African creatives.

“Some of the provisions of the Bill will largely impact on the more than 5 000 small- and medium-sized record labels, as well as thousands of South African musicians who will not be able to sue big tech companies that are likely to take advantage of the broad exceptions in the Bill. As a result, we expect revenues generated by the industry to shrink even further,” he explains.

He went on to note that it was unfortunate and disappointing that the amendments proposed by the industry were ignored.

FAIR USE

Van Schaik Publishers’ Louis Gaigher and NB Publishers head of contracts and rights Olga Wyngaard tells Polity that by de-incentivising creation, this could stifle the culture of writing, reading, education and training, creativity and innovation, as well as the socio-economic wellbeing of South Africans.  

They explain that the Bill introduces the “US doctrine of 'fair use' into South African law”.

South Africa’s copyright laws already allow for free access in certain instances, while 'fair use' sets an open-ended standard with a list of factors for consideration when assessing possible copyright infringement.

Essentially, this places the onus on the copyright holder to approach the courts for relief when their work is copied, digitised, translated or reworked without permission, which Gaigher and Wyngaard add would be a disadvantage for copyright holders as they will be burdened with unnecessary costs and an uncertain outcome.

Gaigher and Wyngaard argue that South Africa’s version of 'fair use' is more expansive than the US’s with additional general and special exceptions and no statutory damages.

“Since 80% of South African’s publishing industry is educational in nature, ‘fair use’ and overbroad exceptions pose a threat to the very sustainability of the local publishing industry and cast a long shadow also over the trade sector (the sector involved in developing books in various formats for the general public),” they point out.

Last year, Parliament’s committee on trade and industry explained that the Copyright Bill and the Performers Protection Bill were introduced to modernise the legislation and align it with international treaties that South Africa intends to ratify or accede to, while addressing unfair contracting between creators or performers and copyright owners.

Seeber says South Africa’s copyright law should be broadly developmental and promote the creativity and expression of African cultures and educational values.

She asserts that the Bill is out of sync with the efforts of other African countries to protect and promote their cultural expression and stimulate knowledge production.

She believes that the chief beneficiaries of the new copyright regime will be foreign.

“There has been undue influence over the drafting of this Bill to fashion it in the interest of the US IT companies. This has been covered over by a propaganda presenting the Bill as benefiting access to information. Even the Minister of Trade and Industry thinks that the Bill is important because it will make information cheaper for students. It will not,” Seeber asserts.

She says the DTI has come under the influence of the US tech industry, specifically Google, which has an interest in weakening copyright throughout the world to own the IP and use it for its own profit.

The Publishers Association of South Africa legal representative André Myburgh also raised concern about Google’s direct involvement in the legislative process and the role of US academics’ global promotion of 'fair use' and open exceptions.

ECONOMIC IMPLICATIONS

The creatives coalition cited a socio-economic impact assessment done by the Publishers’ Association of South Africa and PricewaterhouseCoopers (PwC), which found that 1 250 publishing jobs would be lost if the legislation is implemented. This amounts to about 30% of jobs in the industry.

Following the PwC report, publishers expect a 33% decrease in sales, which could equate to about R2.1-billion a year and loss in tax revenue. As a result of this, imported publications will increase.

Meanwhile, the film industry could also take a hit in cinematic works ownership, which in turn, could lead to less investment, impacting jobs and the future creative output of the country.

Gaigher and Wyngaard is urging the the DTI to engage in depth with stakeholders and hear their proposals, which include reconsidering certain clauses of the Bill and overbroad exceptions.

The coalition points out that if publishing academic texts is no longer viable this will affect school learners, as texts will have to be imported, in turn, reducing learners’ understanding of uniquely South African perspectives and setting back the decolonisation project.

“The Copyright Amendment Bill threatens to harm the very people it aims to protect – the producers of creative content and ideas. We implore [Minister Davies] to intervene, raise these issues with the President and do what you can to ensure that the rights of users to access knowledge are balanced with the rights of content creators to earn a living from their work.”

Polity has contacted the Select Committee for comment but has had no response at the time of going to publication.