The South African government is forging ahead with plans to pass the Copyright Amendment Bill despite its legal flaws and contradictions, seemingly oblivious to the ongoing public debate on its provisions that has been raging for years.

By Keyan G Tomaselli and Hetta Pieterse

Should the Copyright Amendment Bill (CAB) become law, it will negatively impact especially educational book publishing, as well as risk violating authors’ rights and international treaties. It will also harm South Africa’s research economy, and the country could become a haven for servers hosting pirated content.

Off course

The bill has veered off course from its original good intentions to benefit creatives. Its drafters have been heavily influenced by a small group of mostly American academics who agitate for ‘users’ rights’ to limit rights of copyright.

The supposed benefits of ‘fair use’ are presented as axiomatic, despite the absence of a cogent policy or impact assessment that supports these claims. There is a glaring absence of proper socio-economic studies and impact assessments that should have been done at the start of the process.

The bill’s passage is anticipated by those who wish to cut their cost for copyright content that they would otherwise have to purchase. However, this would leave content creators empty-handed and with fewer incentives to create new works.

There have been thousands of pages of prior discussions and submissions to parliament, yet concerns raised by members of the public have simply been swept aside without full explanation.

Different notions of fairness

The concept of ‘fair dealing’ in the existing South African Copyright Act of 1978 enables affordable reproduction of licensed materials for educational use in course packs, in terms of international treaties. It does so by exempting the use of copyrighted works for certain statutorily defined purposes relating to particular types of works. This provides clarity to all concerned.

By contrast, the Amendment Bill follows the ‘fair use’ concept, which entails the reproduction or use of copyright-protected material without the author’s or publisher’s prior consent or permission. Crucially, it does not restrict its application to clauses of permitted purposes of use.

‘Fair use’ has been described as an “ill-fitting alien doctrine” in South Africa. It is embodied in the Copyright Law of the United States but, in the South African version, the door is opened to unlimited use by the inclusion of a ‘such as’ phrase.

This reconstitutes a list of previously specific uses into mere examples of diffuse uses that might qualify in legal terms, thereby robbing authors of the right to thwart unauthorised use of their intellectual property (IP).

If the mark is overstepped, a court of law will have to decide on the appropriateness of the use. In other words, case law rather than statutory law will decide what ‘fair use’ includes. But, having to institute court action is a costly and lengthy exercise.

Educational works

Whereas the US ‘fair use’ clause contains very few exceptions, the South African version added a clause enabling the education environment as well as libraries, online archives and other users to freely copy materials. This will negate the rights of authors of educational works.

There will be a decline in incentives for local textbook writing and new editions, which are already being reduced, as local content suited to the South African context would no longer be worthwhile for either authors or publishers.

The ‘fair use’ override will squander the IP value of content, when books, articles, films and other materials are used especially for educational purposes. That, in turn, will collapse much of the South African publishing and book-selling industry because educational publishing is the backbone of the local industry. The loss of copyright in this sector will cause significant contraction across the board.

‘Contract override’

The bill will enable a ‘contract override’ whereby the minister of trade and industry will be empowered to prescribe the terms of publishing contracts. This will interfere with freedom of contract between authors and publishers.

It will remove bargaining power from authors and interfere with the healthy competitive environment for the best authors.

It will affect South African publishers’ ability to attract authors, since they will not be able to protect their copyright, nor will authors and publishers be able to earn sufficient income.

And it will cause scholarly presses to be unable to co-publish with external publishing partners due to the lack of copyright protection and contractual controls.

Winners and losers

All of this raises the recurring question: Why is it that South African authors and copyright owners are to be denied the same legal protection as their counterparts in Europe and the United States?

The CAB will allow technology companies ‘free access’ to monetise content in which publishers (university presses, in this context) and universities have invested to develop. Big Tech will, thus, be legally enabled to leverage public money for private profit-making.

Research economy

Publication is the lifeblood that underpins appointments, promotion, access to funding and job security in academia. These opportunities for career mobility are compromised when an author’s ownership of content is threatened.

Were the bill to be enacted in its current form, a significant portion of the state publishing incentive that currently finances research activities would be rerouted to meet upfront publication charges in the parallel context of open access.

This will see a shift from the publication of home-grown textbooks customised for local users in favour of copyright-protected imports with clear implications for the re-colonisation of content.

The loss of home-grown textbooks resulting from the bill’s weakening of IP protections will have implications for the decolonisation of curricula, which has become a key performance indicator for universities since the #RhodesMustFall movement.

In addition, a reluctance of international firms to collaborate with South African publishers will result, in reducing global exposure for local authors and content.

Copyright to be halved

The bill limits copyright to 25 years instead of the existing 50, despite the fact that the latter term is the norm internationally.

Publishers invest in their authors over time. It is not uncommon for the first book of an author to start making a profit after only the fifth, sixth or seventh edition, which could extend beyond 25 years.

There is no fairness in allowing another publisher – or a platform such as Amazon – to free-ride on the first publisher’s effort. Amazon and others would reap what they have never sown, cherry-picking and leaving the rest stranded like ships in the desert.

Infojustice?

The bill will have the effect of legalising the distribution of published material by Sci-Hub and Library Genesis, among other pirates, alongside sites such as Amazon. It will be difficult, if not impossible, to sue or prosecute anyone for distributing commercially published material downloaded from such sites.

If the bill is adopted in its current form, it will likely lead to South Africa becoming an international haven for pirate sites.

Given the broad definitions of the bill, soon it will not be only a matter of academic and educational repackaging and redistribution, but also a matter of popular culture – a kind of free-for-all.

In effect, the bill will legalise the theft of original South African work for reselling by international operators who paid nothing for it, yet who monetise access to it. It would not be a kind of decolonial revolutionary act – that is the basic contradiction that the pro-bill lobby fails to understand.

Big Tech firms are notorious for evading national taxes. Their after-tax profits are akin to the big publishers, but Big Tech firms are never criticised by the pro-bill proponents, who are reliant on their support.

The misplaced assumption that copyright is ‘bad’ because it protects the North Atlantic assumes that the Global South has nothing worth protecting, and, therefore, nothing worth selling. Such a position will simply enable the postcolonial mining of South African ideas that will enrich the Big Tech information prospectors looking for unprotected works for which payment is not required. Where is the infojustice in that? – universityworldnews.com

Keyan G Tomaselli is a distinguished professor in the dean’s office, faculty of humanities, University of Johannesburg, and professor emeritus and fellow in the School of Applied Human Sciences, University of KwaZulu-Natal, South Africa. Hetta Pieterse is the commissioning manager at UNISA Press, University of South Africa.