At the heart of the copyright reforms are wide-ranging increases to “exceptions” to SA’s copyright laws. The motivation for these reforms is no doubt benign, with the government hoping to increase access to copyrighted material among the poor. In reality, the obvious consequence of these amendments will be to give mostly foreign businesses free rein to profit from SA creations.
This is why the strongest anger at the bill comes not from foreign interests but from SA creators and businesses. As Coalition for Effective Copyright head Collen Dlamini explained, the bill makes “losers” of local artists, writers and musicians. “The winners will be the large, global tech companies who will gain free access to SA content thanks to the bill’s extensive exceptions to copyright,” he said.
SA creators have objected passionately to the proposed bill, including a march last year by a group of musicians, writers and artists. One of the protesters, Freshlyground lead singer Zolani Mahola, declared: “We do not want to die poor. Musicians and composers die penniless despite their contribution in the industry and the country.”
A petition organised by three SA writers’ groups was signed by more than 3,000 people and among the many prominent authors to speak out was Nobel prize-winning author JM Coetzee. The reason this bill worries SA creators so much is that it limits their ability to make their own business deals, while giving others broader rights to use their work without paying.
Most notably, the bill transplants US-style “fair use” into the SA legal system. Fair use allows people to make limited use of other people’s works without paying — like the quotes in this article or brief sections of a work for educational purposes. SA already has its own such provisions, known as “fair dealing”.
Worryingly, this new law goes way beyond the confines of fair use and fair dealing. One section allows for unrestricted copying of content “for educational and academic purposes”, provided that the copying doesn’t exceed the length justified by the purpose. Such a broad provision could wipe out educational publishing in SA. Paying for textbooks, for example, would no longer be necessary; local educational and scholarly publishing will become unsustainable.
The end result is greater reliance on copied foreign educational works and a serious threat to all academic authorship by South Africans for South Africans. Overall, these restrictions make SA an unattractive place for creative international business to sign deals with SA writers, musicians and filmmakers. At best, they will affect rights — for example, a publisher with fewer rights will pay less. Production is likely to move elsewhere.
A perceived lack of adequate public consultation also mars the bill. SA creators, creative businesses and others have complained repeatedly about being shut out of the deliberations on the act. Among the voices that do seem to have been heard are US-based Big Tech and certain US academics, most notably those who advocate for strict limits to copyright.
Prof Keyan Tomaselli of the University of Johannesburg complained that one US law professor critical of copyright protection “had access to decisionmakers at the expense of all other interested parties since before the bill was even introduced”. This is hardly a balanced way to develop changes to legislation that will have major economic consequences.
South Africans may find the US’s muscular approach to protecting the intellectual property rights of its businesses and creators aggravating. But the government should put to one side any nationalistic concerns and look at what is best for its own economy. On copyright, the Americans may have a point.
• Urbach is a director of the Free Market Foundation of Southern Africa and Schultz the Goodyear chair of intellectual property law at the University of Akron in the US.