Tuesday, 20 August 2019

Afro-Buff

Resources on the CAB debate: all the links you need!


South Africa: The Copyright Amendment Bill is presently on the desk of the President awaiting signature. There has been furious debate over the Bill, with supporters and detractors uniting on one of two predominant sides to voice starkly different opinions as to what the destiny of the Bill should be. For those who would like to understand the debate, Afro-IP has compiled this post containing links for further reading on the Bill and those engaging in activism surrounding it.

A group called ReCreate has emerged supporting the Bill. Recreate represents a spectrum of creatives, trade unions and members of civil society evidenced by their home page. It drafted an open letter advocating for the Bill to be signed in its current form and recently convened a seminar on Decolonising Copyright where the need for copyrighted items to be made accessible in a manner suited to the South African context was discussed. One of the most hotly-contested aspects of the Bill is the doctrine of “fair use,” which is introduced by the Bill. Recreate argues that this is in the interest of all South Africans and will not prejudice, but rather encourage creatives. It highlights that “fair use” will facilitate the realisation of rights such as the right to education. A further motivation behind their support of the Bill is that it will make copyrighted works more readily available to people with disabilities, for instance by allowing written works to be printable in braille.

The Coalition for Effective Copyright (“Coalition”) came into existence with a view to prevent the Copyright Amendment Bill from being signed into law in its current form. The Coalition represents creatives in the industry who do not support the Bill. Once the National Assembly and National Council of Provinces approved the Bill earlier in 2019, the Coalition formally petitioned the President not to sign it. A seminar was recently held, entitled “On a Knife’s Edge” under the auspices of Adams and Adams where the Coalition was represented by its spokesperson, Collen Dlamini who moderated a panel discussion where the need to alter the course of copyright reform was discussed from an industry perspective. The Coalition claims that the Bill does not pass constitutional muster on the basis that its prescripts amount to deprivation of property without compensation, that it has been tagged incorrectly, that inappropriate authority has been delegated to the Minister of Trade and Industry, that there has been inadequate public consultation, and that it violates the right to freedom of trade and occupation.

The pattern of passage of the Bill through Parliament prior to reaching the president had essentially 5 prongs. Debate of the Bill took place throughout the process, it was released for public comment, public hearings were held, it was passed by the National Assembly and then the National Council of Provinces. As is customary, the Parliamentary Monitoring Group kept records of the process with the debates and submissions of all parties concerned being made publically available. The Department of Trade and Industry, as the ministry responsible for copyright reform, has also made public all of their submissions on the Bill as well as their responses made to issues raised by the public in the parliamentary hearings concerning the Bill.

According to section 84(2) of the Constitution, the President is faced with a number of choices. He can either sign the Bill into law as it stands, refer it back to the legislature for its consideration and subsequent to this if he deems necessary, refer it to the Constitutional Court for its consideration. As is clearly evident, the proponents and naysayers will not have a meeting of the minds any time soon and it is anyone’s guess what will ensue subsequent to the President making his choice. All that is evident is that seemingly everything in copyright law is up in the air and that a resolution is urgently needed.


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Andre Myburgh, Lenz Caemmerer
AUTHOR
21 August 2019 at 14:03 delete

The article is mistaken if it implies that this is merely a debate about 'fair use' as it is known in the United States and a difference of opinion between stakeholders.
The seminar “On A Knife’s Edge” made it clear that the ‘fair use’ clause in the Bill differs in material respects from the ‘fair use’ clause in the USA, having a far broader and more damaging impact, and that it is but one part of six pages worth of copyright exceptions being introduced. Very few of these copyright exceptions benefit from any research or impact assessment that Government is obliged to undertake under its own procedures. The seminar also showed that those six pages of copyright emerged from the public consultation process largely unscathed.
Instead of tightening SA's copyright laws, as is the trend in other parts of the world (eg Europe’s recent move to address the 'Value Gap’), the Bill introduces these over-broad copyright exceptions to make South Africa’s copyright laws amongst the most relaxed in the world. This will make a failed international experiment out of South Africa’s copyright regime, irreparably damage the country’s creative sector irreparably.
A review of the comments by the National Assembly’s Panel of Experts, of which I was one, makes it clear that the process by which the Bill has reached as far as it has, actually strikes at the heart of the integrity of the legislative process:
https://legalbrief.co.za/media/filestore/2019/03/Letter_AF_Myburgh_to_Minister_R_Davies_Mr_E_Makue_14Mar2019.pdf
https://legalbrief.co.za/media/filestore/2018/10/Baloyi.pdf
https://legalbrief.co.za/media/filestore/2018/10/Ngubo.pdf
https://legalbrief.co.za/media/filestore/2018/10/andre_myburgh.pdf

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Denise Nicholson
AUTHOR
23 August 2019 at 13:09 delete

The Bill's provisions are not far broader than those in the U.S. The SA Bill specifically lists examples of acts permitted under fair use to provide some clarity for users and producers of copyright works, but ALL those acts would be covered under "such as" in the U.S. fair use provisions. Why shouldn't SA benefit from progressive exceptions when the U.S. (including its entertainment, IT and publishing industries) and many other developed countries have benefitted from similar or more progressive limitations and exceptions for years.


Copyright laws in all countries borrow ideas and principles from international treaties and from the domestic law of other countries. We should never shut out good ideas, even if we did not invent them here. Fair dealing in our current Copyright Act is outdated, limited and static, and does not address the digital world, nor the demands of the 21st century and the 4IR. Fair use, on the other hand, is progressive, dynamic and future-proof and 'digital-friendly'. Fair use has been used in courts in the U.S. and Europe for about 200 years and there is a wealth of jurisprudence to draw on. Other countries with fair use are developing their own jurisprudence, as will South Africa, like it has been doing around constitutional issues. Our judiciary will also decide on appropriate restitution, when necessary.

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Denise Nicholson
AUTHOR
23 August 2019 at 13:09 delete

contd ... The first case on fair use was in Folsom v Marsh 9.F.Cas.342 (C.C.D. Mass 1841). Fair use was coded in the U.S. Copyright Act of 1976 and has not had to be amended, as it applies to new technologies as they arise. About 10 other countries have also adopted fair use in their copyright laws and more countries are considering it, because it is 'future-proof' and benefits users, creators and producers of information and knowledge. Its 4 factors give clarity to what can be used and reused, whereas fair dealing does not.


Recommendation 6.1 of the Australian Government’s Response to the Productivity Commission states: “The Australian Government should accept and implement the Australian Law Reform Commission’s final recommendations regarding a fair use exception in Australia”. Dr. Owen Dean in his Handbook on SA Copyright Law, WIPO (in its Economic Contributions study for the DTI in 2011), Gowers' Report in the UK (2006) and Deloitte in New Zealand (2018) all recommend fair use. There are also many online Best Practice Guidelines on Fair Use available for different users and creators, which will help to avoid litigation on these issues.



The Bill is supported by large multinational, regional and local organisations, institutions and individuals. It has also been hailed as a possible model for other countries. It was drafted within the framework of international, regional and local documents and our Constitution. It is in line with international IP treaties and trends. It also will finally bring our law in compliance with our Constitution and international conventions on human rights and disabilities. The current law has no provisions for persons with disabilities who face a serious, 'book' famine' every day.



Unfortunately there has been a lot of fear-mongering in the media about fair use, which is mischievous and misleading. Publishers, authors and creators continue to prosper in countries with fair use. They have not suffered serious damage because of fair use. In fact the U.S. boasts the largest and wealthiest IT, publishing and entertainment industries in the world because fair use enables creation and innovation. Ironically, lobby groups within these industries are strongly opposing fair use in South Africa. One has to ask why they don't want a developing country to benefit from provisions they themselves have benefitted from for decades!


There is much opposition to the EU's directive clause on the value gap, and its implementation is likely to be problematic. It is probably wise that SA has not yet addressed this and can monitor what happens in the EU, but there is nothing to stop SA doing a further brief amendment to address these issues in the future.

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