The Copyright Amendment
Bill is a controversial piece of pending legislation that has led to much
discord in the IP community. Many seem to think that it completely
disharmonises the system of creation and control- one of the hallmarks of
copyright law in national and international systems. With a world-first
interpretation of the doctrine of fair use creating broad exceptions, there are
many instances where creators will stand to have diminished rights over their
work.
In a society that has
long since prided itself on reward for one’s endeavors, what is the reason for
this departure? The difficulty with which lawmakers are faced appears to be
that South Africa is also one of the most unequal societies in the world with
often only a privileged few being able to benefit from copyrighted goods.
Current copyright law precludes unauthorised use of works in most circumstances
and this means that in some instances only a small number of people have access
to these works- regardless of whether this is in the public interest or not. A
prominent example perhaps is that of academic literature. Many students find
the cost of books prohibitively expensive and thus cannot benefit from the
content of the works. This inhibits their ability to access education, which
prevents them from being able to lift themselves out of poverty. This
perpetuates cycles of social exclusion, which is contrary to the prescripts of
the Constitution- an instrument with which all law must accord.
It is also important that
laws in a country reflect one single system of governance. If a country is
dedicated to making law and policy that is pro-poor, then it stands to reason
that all law and policy ought to lean in this direction. Much is presently in
the works to bring this about, with the reimagination of property rights set to
hit many different sectors. Phenomena such as expropriation of land without
compensation, national health insurance and prescribed assets are all on the
table and our government has made its leftist ideology very clear in this
regard. The aftermath of Apartheid means it’s time to do business differently-
specifically that it is no longer all about business but rather that things
ought to be done in the name of uplifting the poor and disadvantaged.
But who will this
actually uplift? Most certainly we all ought to work together to create a more
equal society, but will the fair use exceptions really accomplish this? Are
these provisions of the Bill a justifiable limitation of the rights of
creatives? Will knock-on effects such as a potential brain-drain and job loss
really uplift the poor or is it government’s responsibility to do so? Is taking
away people’s livelihoods truly democratic or is it a dangerous plunge towards
a complex socialist system our government cannot properly run? Is taking
something away from one person to give to another not more of the proverbial
“stealing from Peter to pay Paul” than bringing about substantive equality?
Indeed there are many questions and the answers are not clear cut. One can only
hope that all of this is thoroughly considered by South Africa’s President
before the Bill is signed into law.
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