(by Linda Daniels for IP Watch, published under a CC BY NC SA licence)
PRETORIA, SOUTH AFRICA – A conference here this week elicited a robust debate amongst intellectual property stakeholders in South Africa about the objectives of the far-reaching draft Copyright Amendment Bill. The Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform conference was held on 11 August in Pretoria. The one day conference brought together activists, law practitioners, academics and government representatives to unpack the draft amendment bill which was published in the government gazette three weeks ago (IPW, Africa, 28 July 2015). The publishing of the bill opened a 30-day window period for public comments. Tobias Schonwetter, director of the Intellectual Property Unit at the University of Cape Town and regional coordinator for Creative Commons, opened the conference by emphasising that the meeting was focused on the public interest of the bill. “The subject matter of copyright law is knowledge. It is cultural material. Any IP is not an end in itself. The purpose is much more utilitarian,” he said. “How can we retain balance of rights holder and user interests especially in the digital age?” Schonwetter added of the bill: “the general direction is right.” Macdonald Netshitenzhe, chief director of policy and legislation at the Department of Trade and Industry, in his opening address, sketched, amongst other things, the trajectory of the bill.
He said that local musicians reached out to government with complaints around royalties that were not forthcoming and it was this concern that was the catalyst for the drafting of a revised copyright law in South Africa. Netshitenzhe said that the copyright law that existed in South Africa prior to the drafting of the bill was “archaic”. The conference also saw in attendance government representatives from the Department of Arts and Culture. Lucy Mahlangu, director for multilaterals and resourcing in the Department of Arts and Culture, underscored government’s position on copyright. “Copyright after creation is the root to wealth, so it’s very important to us that what we are not, nationally and internationally, out of kilter,” she said. “We come from a history of a certain group that was more equal [that needs to be addressed]. Let’s look at whose rights are being protected. Let’s look at the six or seven big IP firms, whose rights are they protecting? We also need to remember that there is a groundswell of people who have been not been protected in terms of IP.” Google Copyright Counsel Fred von Lohmann reminded conference delegates of the staggering and continuous creation of content on the internet which copyright legislation is rushing to try and catch up with. “I hope to persuade you to keep in mind the new creators and technology platforms alongside the traditional stakeholders,” he said. “Well over 99 percent of creative works are created by individuals for non-commercial purposes. All this is not in the realm of traditional copyright concerns. At best for them copyright is a poor fit. The creators are themselves are trying to solve the problem themselves [with approaches] such as Creative Commons … that are trying to change the defaults. The truth today is, copyright law does not distinguish non-commercial users from others.” Conference delegates picked apart sections of the bill that they felt were presently unworkable and workshopped suggestions to government representatives in attendance. Many of those present told Intellectual Property Watch that they would also submit more considered written submissions to government during the current window for public comments. Schonwetter raised the issue of fair dealings and fair use in the draft bill. He felt that the draft piece of legislation was trying to combine the two. “I think there should be an improvement in the way section 12a is being done,” he said. “There seems to be a confusion between fair use and fair dealing. Fair dealing is limited to certain purposes. But fair use has no such limitations. Section 12a is a mishmash of the two. This is something we will put into our submissions.” Marc Schwinges, CEO of TransMedia Africa and chair of the South African Screen Federation, spoke of the frustrations facing South African filmmakers who are commissioned to create content for broadcasters, and suggested a change in Section 21 of the draft bill. “When work is commissioned, there are certain types of creative work where the commissioner owns the copyright of that work,” said Schwinges. “Section 21 includes portrait photographs, a recording and the making of cinematographic work which includes a documentary. In South Africa, we have to look at the finance model. In an increasingly multi-platform model, we will see a proliferation of more free to air community broadcasts. We can’t ignore that work will be exploited on multiple levels, so we have the default model of a broadcaster commissioning and then owns the content.” Schwinges continued: “The broadcaster owns it and doesn’t want to licence it to competitors. One wants to have work reach maximum audience. We need to address Section 21 …the position of power is wrong.” Anriette Esterhuizen, executive director of the Association for Progressive Communication, a network of organisations working with information and communication technologies to support social justice and development, said of the draft bill: “The notion of balancing rights is problematic. I would advocate public interest; how do you balance the rights of librarians on the one hand and huge multinationals on the other. They don’t have equal voice and that is challenging.” She added that “pushing back on copyright is often necessary and that can be good.”