(by Linda Daniels – first published for Intellectual Property Watch under CC BY NC SA licence)
“Fair use” was at the heart of discussions between intellectual property stakeholders at a recent workshop called to discuss the revised draft copyright amendment bill of South Africa. The one-day workshop, held in Cape Town on 6 December was the first of two IP sector workshops that brought together academics, activists and IP practitioners to discuss the merits and demerits of the copyright amendment bill and its anticipated revisions. The second one-day workshop was held in Johannesburg the same week on the 8th of December. The draft copyright amendment bill, was published in the government gazette by the Department of Trade and Industry (DTi) in July 2015. This opened a public submissions process into the bill which ran until 16 September 2015. During this period, government called a one day conference in Johannesburg to further inform the refinement process of the bill (IPW, Africa, 28 August 2016). However, the initial flurry of excitement around the bill’s first public appearance has been tempered by uncertainty over when the official revised version will be released. DTi spokesperson Sidwell Medupe told Intellectual Property Watch in December, “We are working on it with state law advisors (certification). Early next year this will be complete and will be introduced formally.” The revised bill has not been made public yet, however Intellectual Property Watch has seen a draft version.
According to one South African academic at the meeting. The current draft bill does not contain a US-style fair use right because – although it applies a similar flexible balancing test through a general clause – it is not open to any potential purpose. This may inhibit the clause from being applied to some purposes not included in the bill, for example to the millions of copies made each day by commercial internet search engines. Such copies are not for “research,” “education” or other specific purposes protected in the existing bill. Broadly defined, “fair use” refers to rights within copyright law to use protected works without license or permission of the rights holder to serve various public interests. Expanding such user rights in South Africa in a core purpose of the revision and the workshop explored the many ways in which users would benefit from the bill’s terms. These include expanding rights to use copyrighted works for education, libraries and to provide access for people with disabilities. The workshop also explored the extent to which the bill might implement the more specific “fair use” right that exists in the U.S., Israel, Singapore, and some other countries. Here, according to Professor Sean Flynn of American University Washington College of Law, “fair use refers to a general exception in copyright law that is open to use for any potential purpose and is applied through a flexible balancing test that considers the rights and interests of the author as well as that of the user and public at large.” It is less clear whether the South African bill will include a fair use provision that is general, open and flexible as is the US standard.
Dr. Tobias Schönwetter, director of the Intellectual Property Law and Policy Unit at the University of Cape Town (UCT) and the regional coordinator for Africa Creative Commons, opened the Cape Town workshop. He reminded workshop participants that the discussion would be limited to the published draft copyright amendment bill and what could be anticipated in the revised bill given that it has not yet been released. This latest workshop was organised by the IP Law and Policy Unit of UCT and follows on from an event entitled, “The Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform conference” which was held in August 2015 and hosted by the same organisers.
“We will recapture hot topics of the 2015 bill,” Schönwetter told participants at the start of this year’s workshop. “We will then hone in on copyright exceptions and limitations as well as persons with disabilities and then have a discussion on whether or how we should introduce a general fair use in the context of SA.” Schönwetter was a contributor to the joint academic submission on the draft amendment bill to the DTi. One of the more controversial elements of the draft copyright amendment bill is the section on orphan works, which some IP stakeholders find impractical. Orphan works refers to those whose owner cannot be located, is unknown or is deceased. The copyright amendment bill proposes that in the cases described, ownership of copyright shall be perpetual and vested in the state. Profs. Peter Jaszi and Sean Flynn, both based at the American University College of Law in Washington, DC, were speakers at both workshops in South Africa. Each stressed the value of having a fair use clause that is open to unforeseen purposes as a key means to promoting South Africa’s social and economic interests that may be impaired by unduly broad copyright monopolies. Jaszi told workshop participants: “Fair use should not be viewed as a scary or difficult one. The motion picture industry … the World Wide Web … all involved the reuse of existing copyrighted material for new purposes.… [A]ll are examples of value added, follow-on innovation.” “In each case, at the moment of each innovation … there were no copyright barriers, sometimes because the innovation fell into the exceptions of copyright law or the innovation operated in the gap in copyright law,” said Jaszi. “That space for innovation and experimentation is an equally important part of that mix. How do you achieve that mix? How do you make that space for innovation?” One way would be to deal with it in policy, he said. “We could wait for some problems to arise and then write some specific exception to fit the problem. There are two problems with this: as a political matter its quite difficult for new entrants to exert influence to secure an exception to copyright law that will benefit them,” said Jaszi. “The other reason is that often, you don’t know what the next innovation will be until the opportunity it presents is upon you,” he said. “The delay may be fatal or damaging to the innovation process. We don’t know what innovation is coming next. We really can’t anticipate it. And that’s a great dilemma.” There’s a lot of consensus in this field that a copyright system that relies exclusively on specific exceptions … is almost bound to fail,” Jaszi continued. “Specific exceptions need to be coupled with some other open, more flexible, more forward-looking form of copyright exception.” “Here we get into mire of terminology,” said the professor, who in December was retiring from his storied career. “What kind of general exception? A country like South Africa today is faced with interesting choices. In considering the revision of copyright law could start from scratch…. It could be original to us. It’s not easy to know what in this moment what a wholly original approach would be.” Flynn added that the economics of fair use included the benefits such as technological innovation, research and development for example; educational attainment, workforce productivity and… freedom of expression. He added: “Fair use is not for the things that we know now but for the things that we don’t know now.”
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled is copyright treaty adopted in Marrakesh, Morocco, on 28 June 2013, and allows for copyright exceptions to facilitate the creation of accessible versions of books and other copyrighted works for visually impaired persons. Countries that have ratified the treaty have a domestic copyright exception covering these activities, and allowing for the import and export of such materials. Jace Nair, CEO of Blind SA, chairperson of the Africa Marrakesh Treaty Committee and the Africa Regional Representative of the World Blind Union Marrakesh Treaty Committee, reminded workshop participants that while five African countries had ratified the far reaching treaty, South Africa was not one of those. The treaty came into effect in September this year. Nair said that in order to overcome the book famine for visually impaired persons the South African government must amongst others amend the copyright act and ratify the Marrakesh treaty. Denise Nicholson, scholarly communications librarian at the University of Witwatersrand in Johannesburg, also a proponent of the need for limitations and exceptions for libraries, archives and for research and education reminded workshop participants that libraries serve everyone and that no one can function without information. Nicholson’s concern was summarised in the joint academic submission on the bill, to which she was a contributor. It read in part: “in addition to general exceptions, the law should include as well specific exceptions with regard to common and socially significant uses of copyrighted works, including for quotation, for uses by libraries and archives, for people with disabilities, and other purposes. It is also important that the relationship between specific exceptions and a general, flexible exception be understood as fully complementary, rather than competitive or exclusive.”