Monday 12 August 2019

Afro Chic

Decolonising Copyright: Building our Creative and Information Economy

On the 7th of August 2019 RecreateSA convened a seminar in association with the South African Guild of Actors, the University of the Witwatersrand’s Library, Blind SA, the University of Cape Town’s IP Unit, the South African Democratic Teacher’s Union, Washington College of Law’s Programme on Information Justice and Intellectual Property and the University of the Witwatersrand’s Institute for Social and Economic Research. The seminar was entitled “Decolonising Copyright: Building our Creative and Information Economy” and took place in the Senate Room of the Solomon Mahlangu Building.

Tusi Folane outlined that RecreateSA- who she represents- is constituted of a broad spectrum of stakeholders including creatives, activists and trade unions who are all interested in what the Copyright Amendment Bill could mean for them and the work that they do. At the seminar, she highlighted, the aim is to interrogate who stands to profit or benefit from copyright reforms. She indicated clearly that one of the objectives was to accommodate the views of all and for participants to expose themselves to different narratives. Some have been very vocal about pending law reform, making the claim that we are “on a knife’s edge.”

Mandi Vundla then presented three poems surrounding creativity, ownership and sharing. A short film was scheduled to be shown at this point on the expressed need for the Copyright Amendment Bill but due to technical difficulties it was shown later on in the programme. In the film a spectrum of interested parties’ views were expressed, among others a university student and a law professor, both of whom expressed the need for proliferation of information.

Professor Adam Habib of the University of the Witwatersrand delivered the Welcome and introduced the speakers. He explained the fundamental nature of decolonisation (it's about contextualisation) and discussed the tensions within his own university with regard to copyright reforms. He had the Library, on the one hand which would like to start enabling open access to journals and knowledge that is collectively produced and Wits Press on the other hand who feared for their sustainability in the event that this became a reality. He posed the question as to how these competing priorities ought to be married. This is, he said, the purpose of these discussions.

The keynote address was delivered by Professor Ruth Okediji, of Harvard Law School and Co-Director of the Berkman Klein Center for Internet and Society at Harvard University. She discussed copyright in the context of development. The history of intellectual property in South Africa is both factually and theoretically complex. Questions in this regard, she said, will lead South Africa’s process in determining what the law is supposed to deliver. In terms of norms, constitutions and cultures, the reality is that much of copyright law remains ill-suited for the socio-cultural and political landscape in Africa. She then went on to highlight that access to knowledge goods is crucial for development and that policy-makers must thus deal with options that offer different outcomes in intellectual property and copyright law. There is a complicated system of checks and balances needed, she explained and there is tension between rewarding creativity and remuneration and in ensuring diversity. It is all very well, she said, to compose a creative work like a book, but if the book is simply warehoused and nobody reads it, it doesn’t mean anything. We have to have both creation and dissemination to promote social welfare. It is not just individual benefits to creators that is important but also the interests of the public- shaping debate, educating and having a vibrant public domain.

Subsequent to the keynote address was a panel discussion consisting of Ben Cashdan, a filmmaker and television producer representing RecreateSA, Justice Zak Yacoob formerly of the Constitutional Court of South Africa, Professor Daniel Mashao of the Faculty of Engineering and Built Environment at the University of Johannesburg and Mugwena Maluluke, of the South African Democratic Teacher’s Union.

Cashdan expressed that there have been threats by multi-nationals that their support of South African work would be withdrawn if the Copyright Amendment Bill is passed. He indicated that this is because although other jurisdictions have principles such as “fair use,” South Africa adopting this will cause their deals to be less lucrative. He indicated that we must not allow multi-nationals to threaten us. He further highlighted that it is through monopoly power that there arises a situation of exclusionary pricing- something we cannot accept. He pointed out that fair use only allows work to be copied reasonably, so if, for instance, the work is priced absolutely excessively. He said that whether use is fair is an enquiry satisfied by answering questions such as: What is the nature of the original? How much is used? What are the effects on the profits?\

Yacoob indicated that on the basis of Constitutional prescripts that fair use is justifiable. We want to improve upon the quality of life of all people- not only the powerful but the majority. We have to look at where the majority of South African’s are situated. They live in terrible conditions, he expressed. Colonial dispensations were derived overly from freedom and on capital gain while the Constitution is based on human dignity, equality and freedom. Importantly, he said, the Constitution contains the right to freedom of expression- that is, the freedom to receive and impart information. There is a dynamic between the two. Most important, he illustrated, is that rights can be limited by law of general application as long as the limitation is based on human dignity, equality and freedom. Yacoob highlighted that we have a society committed to improving the human condition- trying to achieve the appropriate balance. The balance we get, he stated, develops a civilisation as we understand it and fair use does do this through ensuring that people can access rights such as the right to education.

Mashao discussed the Fourth Industrial Revolution (FIR). He indicated that it is a fusion of technologies producing new business models which produce new value systems. The FIR has four components- digital, biological, physical and energy and the environment. It will provide many opportunities for copyright, he stated. It will enable, for example, the recouping of invested creativity, time, money and resources. He highlighted that it is important to note that while copyright supports creativity, it can also stifle innovation and that this is something that could do with change.

Maluluke shared experiences of children having one book between five of them at schools, copying each other’s work because it was too hard for all of them to get a turn with the textbook. He discussed the exorbitant price of textbooks and how many of them are cheaper overseas. He stated that a point that has been well-noted by United Nations Rapporteurs is that education has to be accessible. We need to make sure that even students in the most remote of areas have proper access to education. In South Africa, he pointed out, five companies monopolise 71% of publishing. This drives up prices, making education inaccessible to poor learners. In an analysis of what we need, he suggested that a number of factors be taken into account: facet; numbers; experimentation; language; culture and changing power relations.

In the discussion subsequent to the panel discussion, questions surrounding collecting societies, 25-year reversion and royalties emerged.

The event was a fantastic conversation-starter and provided deep insight into different perspectives surrounding pending copyright reform. It is our hope that such rigorous debate can continue around these important issues.

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