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Debate around the contentious Copyright Amendment Bill

- Wits University

Deep polarisation still marks a bill that is heading into its fifth year in various draft iterations and awaiting to be signed into an act by the president.

It was billed as an indaba to “break the impasse” on the contentious copyright amendment bill, but from the outset this intention of the gathering hosted by Wits was thwarted when the coalition opposed to the bill boycotted the event.

Deep polarisation still marks a bill that is heading into its fifth year in various draft iterations and has since March been before the president awaiting to be signed into an act.

The Wits indaba, said Denise Nicholson, Manager: Scholarly Communications and Copyright Services Office at Wits University and an access to knowledge activist, was hoped to break the deadlock by finding common ground and to discuss and debate issues of constitutionality in the bill.

“We had hoped to have both sides gathered in the same place with equal number of speakers from both sides being given equal time to raise their points and to find solutions, so it was a pity that the coalition declined our invitation.

“Wits has always had a proud reputation for encouraging freedom of expression, open dialogue, and robust debate, and it was hoped that this indaba would be a platform for such activities,” she said.

The deadlock comes at the cost of information and knowledge being withheld from more people and the consequence of making society less inclusive. So said Joanmariae Fubbs, chairperson for the portfolio committee on Trade and Industry and a member of the extended committed for National Economic Transformation.

At the same time, organisations such as BlindSA said at the gathering that was held on 2 December, that their organisation is at the point of taking the matter to court if the president continues to stall in signing.

Fubbs gave the opening remarks to the day-long conference and called for “courage” and “to conquer our fears and to see beyond the dangers of today to prepare for a new tomorrow” in reforming the Copyright Act of 1978.

She added that South Africa needs a society “empowered by knowledge and information to know their rights but more than that to overcome the challenges of earlier copyright legislation that unwittingly ignored a majority of the population to benefit the few. Experience and knowledge of the past has shown us that only in a free society is creativity and innovation nurtured for the benefit of all society.”

Fubbs said that the amendment bill seeks to correct shortcomings in the 41- year-old Copyright Act that does not provide for exceptions for education purposes and other uses necessary for teaching. It is also out of step with creating in a digital environment and new technological era and has no provisions for people with disability.

“Research and scholarship rely on the work of others as building blocks for the creation of new knowledge,” she said.

Fubbs highlighted several elements of the bill that have remained contentious. These include the issue of exclusive rights, the models of fair dealing and fair use and the rights of authors, which includes all creators of original content, and how this weighs up against the public interest.

Fair use has been slammed by critics of the bill as a way to mass copy works without compensation. But proponents of the bill have said that this is gross exaggeration as fair use must meet the four-factor test. Also that international conventions, such as the Berne Convention and TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement, to which all World Trade Organization member countries are bound, also ensure copyright protections.

The four factors are purpose and character of use; the nature of the copyrighted work; the amount and substantiality of the portion taken; and the effect of the use upon the potential market.

Supporters of the bill add that once the bill is signed regulations will give clarity and will further balance the specific needs of all stakeholders.

The Coalition for Effective Copyright of South Africa (that declined the invitation to attend the gathering held at Wits) has however, insisted that the bill be redrafted. They have argued that the bill “short changes” authors, that it will result in potential job losses and will have potential damaging international trade implications.

This follows a review of South Africa’s eligibility to participate in the United States’ Generalized Systems of Preferences (GSP), which is a scheme that allows duty-free imports from less developed countries. The notice given in October by the Office of the United States Trade Representative is based on intellectual property and enforcement concerns, raised by the Intellectual Property Alliance (IIPA), an umbrella organisation of American organisations, that represent five trade bodies of the Association of American Publishers; the American Motion Picture Association; the Independent Film& Television Alliance; the Recording Industry Association of America and the Entertainment Software Association.

But the likes of Christo De Klerk of BlindSA, has called this “nonsense and “fear mongering”.

De Klerk said: “If fair use is this evil imported from the US then way are there more books being printed in the US than ever before. According to UNESCO in 2013 there were 304 000 new titles published and if you include self-publishing it would be double that. In 2018 there were also 871 new feature length films made.”

“There is fear mongering and nonsense being spoken and we need to call this out. While they are delaying we have to mobilise, be more vocal and use the tools that are available to us,” he said.

Photographer Sean Harris representing SAFREA (South African Freelancers Association) was also on a panel on royalty and reversion right and performers’ rights. Harris’ copyright infringement case against the GCIS (Government Communications and Information System) is considered one of the biggest in SA history. He is seeking R20-million in compensation over what he says is the unauthorised, uncredited and repeated use of a photo of Nelson Mandela he took in 1999.

Harris said the bill makes positive advancement in reviewing issues of ownership of copyright and the replication and resale of work, as well as the custodianship of orphaned work (where creators or their families cannot be located) and the nature of contracts between creators and commissioners. He also raised concerns over “the drawbacks” of collective management organisations that he said have not always been most effective in ensuring that monies are properly collected and distributed to creators.

Nicholson said the impasse shows the continued distractions and personal attacks that have marked debate but regardless that the bill looks set to be challenged on its constitutionality. The lack of protection for people with disabilities and the lack of exceptions for educational purposes amount to challenges on the rights to education, she said.

“Wits alone pays about R4.2 million a year in licensing fees and in many cases we end up being charged twice for the same content. If we made this saving we would definitely be able to supplement any loses that something like Wits University Press might experience. It’s about adapting business models in a world that has changed and the amendments will allow us to move in that direction,” Nicholson said.

Find more of Nicholson’s writings on the Copyright Amendment Bill at