by William New – first published for infojustice.org under Creative Commons Attribution-4.0 International License.
A broad coalition of creators and access to knowledge advocates have petitioned the President of South Africa to urgently sign the Copyright Amendment Bill before him. The petition (https://www.re-createza.org/) is endorsed by organizations representing over half a million South African creators, teachers, people with disabilities and others who rely on copyright access and protection. It calls for the President to sign the Bill “without delay,” including to enact into copyright law “a transformative vision for a more equal and just society.” The petition is the latest step in a decades long campaign to enact development- focused copyright reform that is sensitive to South Africa’s particular social and economic context.
At issue is the 44-page Copyright Amendment Bill (as at Feb 2019) (before National Council of Provinces). https://libguides.wits.ac.za/c.php?g=145331&p=6597157
South Africa has spent over a decade in a sometimes arduous process of developing a Bill to improve and update its national copyright law to help local creators benefit from their works and encourage access to works to spark creativity and serve public interests. The original aim of the process was to address the situation in which famous South African artists “die as paupers” because publishers, labels and other intermediaries are able to extract most of the rent from uses of their works without paying creators adequately.
In 2011 the Copyright Review Commission published its report on amendments to the copyright act needed to promote the interests of musicians. The Report recommended that the law be amended to protect the “needle time” rights of performers whose music is broadcasted, that a right of communication to the public be adopted, that unfair contracts be regulated, that excessive costs and unfair practices of collective management organizations be controlled, that copyrights revert to the creator after 25 years, and that the Copyright Tribunal be streamlined. http://publishsa.co.za/file/1532283873rsg-copyrightreviewcommissionreport2011.pdf One of the bill’s primary purposes is to give effect to these recommendations.
As the bill worked its way through the Department of Trade and Industry, the broader intersts of all South African creators was brought into focus. The great majority of publishers and labels that distribute South African works are owned by multinational monopolies. The goal of the Bill has been described by student activists and some creators as “decolonizing copyright” by increasing the rights of both South African creators and users. http://www.thedailyvox.co.za/amp/decolonised-education-means-giving-poor-students-fair-use-of-textbooks-thabiso-bhengu/ The Bill seeks to enhance creator rights in their dealings with such monopolies by expanding rights of individual creators to own and earn from their works. The Bill also seeks to improve the lot of creators and of institutions of learning and cultural memory by expanding “fair use” rights to use works for public interests.
“In South Africa the law has not protected our interests,” states the umbrella creators’ group ReCreate in the 26 April letter to President Cyril Ramaphosa urging him to sign the Bill. “We work in industries where many of us are systematically disempowered. We are working under apartheid-era legislation which favours historical and international monopolies which have control of money and power. This power imbalance must end now.”
The progress of the Bill has pitted a range of creators and users of knowledge against publishers and collecting societies (such as DALRO and SAMRO), whose practices the Bill is in part intended to shift in favour of creators.
Opponents have sought to raise doubts about the Bill to convince the President to send it back to Parliament. Such a move could significantly delay or scuttle the Bill given the change in the cabinet and parliamentary portfolio committee that will follow national elections in South Africa on May 8. Neither of the two leaders who shepherded the Bill through Cabinet and Parliament — Minister of Department of Trade and Industry Rob Davies and Chair of the Parliamentary Portfolio Committee, Joan Fubbs – are standing for election on May 8.
A key aspect of the Bill that has become a flashpoint for debate is the proposal to implement “fair use” into South African law, allowing use of copyrighted material for a wider range of purposes that do not conflict with author rights to remuneration in markets. Because fair use is favoured by technology entrepreneurs who desire to develop artificial intelligence, machine learning, and other innovations that rely on the ability to freely read digital materials, opposition to the Bill has taken to framing the debate as one of technology companies versus creators. But the petition to the President is the latest example of an effort by individual creators to explain how they benefit from fair use as well, for example by liberating their ability to use extracts of other works in new creations.
“When it comes to Fair Use of copyrighted materials we applaud the approach taken in the Bill, which increases access without substituting in the market of the original creator,” explains the petition.
Adoption of fair use has long been a key request of the library, education, freedom of expression, disability and other public interest organizations in South Africa. Denise Nicholson of the University of Witwatersrand Library explains:
“The change to fair use has been largely welcomed in the higher education space and formally supported by many international and local organisations, institutions, teacher unions, NGOs, various creators, and libraries and archives. That’s because fair use provisions will facilitate better access to information and resource-sharing, along with other benefits like allowing accessible formats for persons with disabilities.”
In addition to supporting fair use as a benefit to creators, the petition to the President represents an attempt to draw attention to the many provisions of the Bill that increase creator rights as recommended by the Copyright Review Commission. These include enactment of the right of communication, protection of performer rights (especially for actors), expansions of the rights of individual creators to own their works — such as reversion of rights to the creator after 25 yearss, and the strengthening of the rights of creators to earn from their works, including a right to a share of profits from any work assigned to a third party and through the regulation of collective management organizations.
Publishers have been increasingly pointed in questioning the Bill and the process, complaining that their concerns are not being taken into account. By accounts, they have succeeded in generating some anxiety among authors and other creators with their labelling of the bill as being all about “user rights” at the expense of creators.
The Publishers’ Association of South Africa (PASA) highlighted its concerns in a 9-page document in February. http://publishsa.co.za/file/1552030835hrq-pasasubmissioncopyright-Billncop-select-committee22feb2019.pdf
PASA’s dedicated webpage for the copyright amendment Bill is here. http://www.publishsa.co.za/copyright/pasa-and-the-copyright-amendment-Bill
André Myburgh, a Basel, Switzerland-based consultant for the International Publishers Association and the Publishers’ Association of South Africa, part of an international coalition of publishers, summarized the concerns of the publishers:
“PASA and other industry associations and professional associations across copyright industries have written to the President requesting that he refer the Copyright Amendment Bill back to the National Assembly of Parliament objecting to provisions of the Bill that (1) have not been the subject of proper impact assessment or policy determination, (2) are expropriative without justification or otherwise conflict with the Bill of Rights, (3) are in conflict with the international treaties which is submitted that the President must take into account in his executive actions, or (4) have not been the subject of proper consultation. There is also the overriding objection that, because of the broad scope of the Bill impacting on trade and culture, the Provinces need to be consulted in terms of a specific procedure set out in the Constitution.”
Proponents of the Bill have been working to address each of these claims. Officials at the Department of Trade and Industry have confirmed that a regulatory impact assessment was performed. But it is true that the report was never made public.
The constitutional and international treaty issues raised by opponents of the Bill, including that fair use rights violate the right against arbitrary expropriation of property or the Berne Convention’s “three step test” for copyright exceptions, were canvased by the legal advisor to the Parliamentary Portfolio Committee as well as by an expert consultant from the University of Cape Town and found to be without merit. Proponents of the bill also point to a number of studies on the compliance of fair use with international law, including recent work by professors Pam Samuelson https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3228052 and Christophe Gaiger et al https://bit.ly/2pYExLa
Proponents have contested the claim to inadequate consultation, arguing that Myburgh himself and several other publishing and CMO representatives were included in all hearings, made submissions, and even were appointed to a special experts committee that included no proponents of the Bill.
Myburgh listed several other criticisms of the bill. He suggested the impact assessment by the government was not made public as required, that the remuneration clauses were “illusory,” and that the bill as written would tie up creators in legal jargon, leading them to be exploited more than ever before. Proponents respond that many of these issues could be clarified under regulations required to be drafted before the law is implemented.
Like the law in New Zealand and other countries, and as explicitly permitted by the Beijing Treaty on Audiovisual Performances, the South African bill proposes to allow the opening of technological protection measures (TPMs) to use the work for any purpose allowed by a copyright exception. Thus, for example, if a filmmaker can lawfully quote a work, she can also lawfully break the TPM to copy a quote from the work. Myburgh argues that this clause amounts to a “blanket allowance to crack” technological protection measures which would defeat their purpose. But proponents of the bill praise this provision, arguing that if TPMs are allowed to block access to works that could otherwise lawfully be used under copyright exceptions, then TPMs would be permitted to negate those public interest exceptions in effect.
“Ultimately, this is really a bill to help creators,” described Ben Cashdan, Producer of the South African public affairs television series The Big Debate and co-Chair of ReCreate. “Creators have been a little bit confused, but the real people who oppose the Bill are collective management organizations and publishers. Of course they are going to oppose the Bill because what the Bill really does is expand the rights of creators to demand ownership of and payment for their copyrights, which these intermediaries don’t want.”
Expanding Educational Use for Development
The bill contains an innovative educational use right. The core of the right parallels the Berne Convention and many other education rights in providing broadly for the use of extracts of works “for the purposes of educational and academic activities” as long as the “copying does not exceed the extent justified by the purpose.” The law specifically provides that course packs or other forms of copying may not “incorporate the whole or substantially the whole of a book or journal issue, or a recording of a work” under normal circumstances. (12D(2)). But it goes beyond this restriction and authorizes copying of full works if “a licence to do so is not available . . . on reasonable terms and conditions”; “where the textbook is out of print”; “where the owner of the right cannot be found”; or where the right holder is engaged in anticompetitive conduct in the form of excessive pricing. In each case, no copying is permitted for commercial gain, (12D(5)), and the copying must be restricted to the “extent justified by the purpose.”
Publishers argue that the excessive pricing provisions of the Bill are faulty in part because they go beyond that provided by US fair use. And they argue that the education rights are so broad as to threaten the publishing industry.
It is true that US fair use is not the model for this provision. But former publishing executive and University of Cape Town researcher Eve Gray, and UCT researcher Desmond Oriakhogba, respond that the educational rights are reasonable for a developmental copyright law in a small market where many foreign works are never made available or only at unreasonable prices. https://www.ip-watch.org/2018/12/04/putting-balance-back-copyright-fair-use-south-african-copyright-reform/. Legal experts also point to the parallel with the South African Competition Act which makes it illegal for monopolies to charge an “excessive price.” http://www.compcom.co.za/wp-content/uploads/2014/09/pocket-act-august-20141.pdf
Gray describes the practices the bill permits in the use of works for education as “more restricted than those routinely followed under Apartheid” when works not available in the South African market were routinely copied in full without license. The Bill protects the rights of works that are made available on reasonable terms in South African markets, while expanding rights to fair use of works that are not available or excessively priced. Myburgh calls this expansion in rights “incredibly wide ranging,” including many not known anywhere else in the world “with no justification.”
Gray disputes the lack of justification for broader education rights in South Africa, pointing to data she has collected in her research:
“Over 40 percent of households live on R33,000 for a family of five. But an international textbook not available from a local publisher can cost a student R6,000. An imported textbook can cost months of food. Bursaries for books are regularly below R2,000. Publishers often stock 35 percent of the books needed in a course. We found in our research that 70 percent of higher education students obtain the majority of their materials through informal digital sharing. Books are cheap to make available, especially in digital format. Our markets are not being fairly served.”
Rather than being a threat to publishing, Gray argues that the bill should benefit local publishers by freeing more educational spending to be spent on local works. Licensing fees for extracts in course packs mainly benefit foreign authors and publishers. The Copyright Review Commission noted that “low returns to domestic rights holders . . . have led to criticism that the system favors international publishers: most of the licensing revenue sent to DALRO leaves the country.”
Although most licensing revenue leaves South Africa, when budgets are spent on books instead of licensing, the majority goes to local publishers and authors, proponents say. Thus, Gray argues, greater incentives in the law to serve the local market at reasonable prices may benefit local publishers who are already doing so.
Canada – A Case in Point
Opponents of the South African Bill often point to Canada as proving the harm that the Bill will cause. They specifically point to evidence that blanket licensing for educational materials from collective management organizations decreased after Canada added “education” to its list of fair dealing purposes in 2012. But others have painted a more nuanced picture.
While it is true that CMO revenues have been decreasing in Canada and that schools and universities have been making greater use of fair dealing to share extracts of works with students, overall educational spending on educational materials has not declined.
University of Ottawa law professor Michael Geist calls attention to the larger context of a shift to digital in which the changes in Canada must be analysed:
“Schools and universities are shifting to digital – including to online e-reserves, e-books and other forms of digital distribution. Collective (blanket) licensing, which for years has charged schools for making analogue reproductions of excerpts of printed works for use in printed course packs has declined in value and usefulness as education invests in digital licensing that offers enhanced access and reproduction rights. To facilitate the shift that benefits all stakeholders, legal rules must reflect emerging practices in which blanket licences compete in the market with alternative licensing models.
“One answer,” Geist continued, “represented by Canada, is a mix of broader copyright exceptions for the use of excerpts for educational purposes combined with a shift in educational spending toward buying and licensing more digital works and digital uses of works. The result is that educational spending on licensing in Canada has increased with exceptions and licenses co-existing in a manner that provides appropriate compensation for authors and publishers alongside increased access and flexibility for educational uses.”
Debating Economic Impact
A representative of the Publishing Association of South Africa, Mpuka Radinku, https://www.businesslive.co.za/bd/opinion/2019-03-07-copyright-amendment-Bill-puts-the-publishing-sector-and-jobs-at-risk/ wrote in Business Day in March, “if passed in its current form [the Bill] could trigger significant unintended consequences, including job losses and disinvestment.”
Opponents of the Bill often point to a report commissioned by PricewaterhouseCoopers that concludes that the Bill would result in “a weighted 33% decrease in sales” of books. http://publishsa.co.za/file/1532283880bpc-pwcreportoncopyrightamendmentBill-31july2017.pdf But this study has been criticized by academics who question its methodologies.
Professor Sean Flynn, Director of American University’s Program on Information Justice and Intellectual Property, said:
“The PWC report’s main source of data input is merely a survey of publishing executives on what they thought the impact of the Bill would be. Some publishers claimed that the Bill would decimate their entire industry; others thought it would actually help. The PWC researchers averaged the results and concluded that the Bill would cause a 33% loss in sales because publishers said it would.”
Professor Flynn described American University’s research based on a time series study of the expansion of fair use rights in 21 countries over 45 years. The research finds:
- More open user rights environments have been associated with higher levels of research and development spending by firms in the information and communication technology (ICT) industries in a set of twelve countries. They may also be associated with higher levels of subsequent patenting by firms in the ICT industries.
- There is a positive relationship between sustained, increased openness in copyright user rights, and returns to firms. This relationship is evident when observing various firm- and industry-level indicators of firm performance.
- In the same set of countries, more open user rights environments have not been associated with harm to industries known to rely upon copyright protection, such as publishing and entertainment.
- Researchers in countries with more open user rights environments produce more scholarly output.
Some publisher representatives have taken to claiming that the bill’s disability rights provisions would violate international law because they are too generous. Radinku (in another Business Day opinion piece last week https://www.businesslive.co.za/bd/opinion/2019-04-24-copyright-amendment-Bill-needs-to-comply-with-marrakesh-treaty/), argues that the bill fails to comply with the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled https://www.wipo.int/treaties/en/ip/marrakesh/
The Marrakesh Treaty is aimed at making more books available to blind and visually impaired persons. It contains provisions to ease the cross-border flow of special format books. Publishers, which now are urging South Africa to join Marrakesh, strongly opposed the treaty throughout the negotiations at the World Intellectual Property Organization (WIPO) until the end, when they got a deal to create the Accessible Books Consortium allowing them to control copyright on special format books for export. In their concerns, they indicate that the South Africa Bill would not give them that control.
In his piece last week, Radinku attempted to fan fears that the draft Bill would not comply with the Marrakesh Treaty because the Bill does not confine access rights to the blind but rather extends rights to create accessible works for people with all disabilities.
Groups representing the blind, meanwhile, including two people who are blind and who were on hand for the final negotiation of the treaty, disagree and have urged the signing of the Bill.
“By contrast to Radinku’s assertions, the Copyright Bill contains a simple and very elegant domestication of the Marrakesh treaty that has the potential to dramatically expand the access blind people have to education and the cultural life of our society,” Jace Nair of Blind SA and Marcus Low, a Cape Town writer and health advocate, argued in response to questions.
Calling Radinku’s argument “a remarkable misrepresentation of the facts,” the two argue that “nowhere in the treaty is there a restriction on extending access rights to people with other disabilities.” In fact, they said, other treaties, such as the Convention on the Rights of Persons with Disabilities, and even the South African Constitution, arguably require such extension. Marrakesh “provides a floor, not a ceiling, on the rights of people with disabilities,” they write.
US copyright fair use scholar Peter Jaszi, Professor Emeritus at American University Washington College of Law, opinedthat the South African law is “fully Marrakesh compliant, and should be enacted without delay.”
“We know that the needs and expectations of people whose disabilities interfere with reading are going to change over time. How can legislation keep up?” said Jaszi. “If you take the model of the United States, it seems there are several different ways to fully satisfy both legal Marrakesh and moral obligations to promote the accessibility of texts, one of which is special legislation to benefit particular populations and the other, in the addition or the alternative, fair use.
“We have in the US, this very interesting, recent court precedent, the Hathitrust case,” Jaszi said, “which says that scanning, storing millions of texts so that they can be made available to blind readers – potentially the biggest disability access program of all time – was an entirely lawful and legitimate thing to do because of Section 107 (the general fair use provision in U.S. law), rather than under the special accessibility provisions of the law.”
Copyright and Technology
Stephen Hollis, an attorney for publishers at the law firm of Adams v. Adams, recently described those in favour of bill as being “astroturf” organizations “with no real constituency,” hiding a “hidden agenda” sponsored by Google and aimed at authorizing “new forms of infringement” for services such as YouTube.
Proponents of the Bill describe the focus on YouTube as misdirected.
“Google supports fair use because it is a leader in investment in artificial intelligence research,” explains Flynn. “You can’t teach a computer to read if you don’t allow computers to read. And when computers read, they copy. So if you want to develop artificial intelligence and other innovations in the digital economy you have allow computers to make copies when those copies do not substitute for the work in the market. That is what fair use does; and that is what Google and other technology companies support it.”
YouTube does not rely on fair use but rather licenses music and other works on the platform through ContentID, Flynn explains. ContentID allows content owners to block or monetize the use of their works on YouTube. Music on YouTube is not fair use, Flynn asserts, because it can substitute for the purchase of the work on other platforms.
Dr Andrew Rens, an expert in SA technology law, describes the bill’s technology focused provisions as a potential benefit for high technology investment in South Africa.
“The bill introduces flexibility into SA law through a hybrid fair-use clause. Critics of fair use say they prefer highly specific, detailed exceptions. Detailed exceptions are important, but they can only ever be backward-looking, dealing with current uses of current technologies. Only a general exception clause is future orientated. A general exception clause allows courts to balance innovative uses against the exclusivity given to copyright holders, and so enable continuous adaption.”
Rens draws specific attention to the benefits of fair use in making room for so-called “non-consumptive” uses of works, such as when a computer reads data on the Internet to learn from it in the creation of artificial intelligence (AI) products.
“Companies and countries are investing heavily in AI. One of the leading AI technologies, known as deep learning, relies on vast data sets to reveal patterns. The bill removes uncertainty on the status of data so that SA AI researchers can proceed confidently.”