Ghaleb Cachalia. Picture: RUSSELL ROBERTS
Ghaleb Cachalia. Picture: RUSSELL ROBERTS

Parliament’s trade & industry committee is in the final stages of adopting the controversial Copyright Amendment Bill despite strong opposition by academics and those in the  industry who claim  it would deter investment.

The committee was due to sit on Thursday night to go through the bill clause by clause as a prelude to its final adoption.

Copyright lawyers, publishers, broadcasters and recording companies objected to the bill both on substantive grounds and because of its poor drafting during 10 days of public hearings in 2017.

 More than 70 submissions on the bill — first gazetted in July 2016 — were received by the committee which established a technical task team to redraft it. Apart from technical amendments, there have not been substantive changes to the provisions of the original bill.

There was a general consensus during the pubic hearings that SA had good copyright legislation but that it needed to be updated to take account of technological developments. Instead the bill proposes to fundamentally change the country’s copyright regime.

The bill’s memorandum states that it “aims to enhance access to and use of copyright works, to promote access to information for the advancement of education and research and payment of royalties to alleviate the plight of the creative industry”.

In an interview on Thursday committee chair Joan Fubbs defended the bill, including its retrospective provisions saying the final product was a great improvement on the initial version.

One of the more contentious aspects of the bill is its introduction of the “fair use” principle used in the US and favoured by Google. This principle would coexist with the current system of “fair dealing” with regard to exceptions to copyright infringement, a hybrid system which DA deputy trade and industry spokesperson Ghaleb Cachalia said merely fudged the issue.

The fair dealing exception in the current Copyright Act allows the use of other people’s copyright protected material for the purpose of research, private study, education, satire, parody, criticism, review or news reporting, provided that what is done with the work is “fair”.

Fubbs argued that the fair use principle would take SA into the future. It would open up the opportunities  to educational institutions, technology and innovation while at the same time protecting creators’ works. She rejected accusations that Google had exerted undue pressure on the committee to adopt the fair use principle which would benefit the internet search engine.

Owen Dean, emeritus professor of copyright law at Stellenbosch University, has a very negative view of the amendment bill which he said would undermine the rights of copyright owners. He said the bill was “very badly drafted and fundamentally flawed. I have recommended that it should be withdrawn and the process started all over again”.

Dean believes the introduction of a fair use system went too far. While copyright created a type of monopoly, the interests of the author had to be balanced with the public interest. This was achieved in the fair dealing system through a very specific, legislated system of exceptions to the exclusive right. A fair use system on the other hand gave the courts wide discretion to decide what was the fair use that would override the exclusive right.

“This bill goes much too far in the direction of the interests of the public and erodes the rights of the author completely,” Dean said. “Potentially you could have whole textbooks being copied for instance. This would mean that authors and publishers won’t make any money.”

Dean said he objected to the “fair use” principle in principle because it was open-ended as it gave the courts wide discretion in deciding what was fair use. There were very few criteria given in the bill which the court would have to apply. This would create great uncertainty as no-one would know in advance whether a particular judge would find in favour of fair use or not.

“It is going to lead to a lot of litigation which is in nobody’s interest,” Dean said. He also believed the proposed bill contravened SA’s international treaty obligations regarding intellectual property and would probably be challenged in the Constitutional Court by industries which rely on copyright to make profits.

Stellenbosch University professor of intellectual property law Sadulla Karjiker wrote in Business Day in October that the bill would dilute intellectual property rights. “A fair use system is more beneficial to Google, especially regarding its services such as YouTube. Fair use would give it greater room to erode the protection copyright owners have and increase its bargaining power over African artists and creators.”

Karjiker  said the committee’s work on the bill had been “shambolic and would embarrass a banana republic”.

In an interview on Thursday Karjiker noted that only five countries in the world had adopted a fair use system. This worked in the US because it had a judicial system of punitive damages which acted as a brake on unfair usage. SA does not have a system like that, he said.

A fair use system is open-ended  and suits parties with the deepest pockets as they could tie down  their opponents in litigation. “Basically it is giving Goliath the power against David,” Karjiker said.

He stressed that intellectual property rights serve to incentivise innovation and creativity which are fundamental to economic growth. There is already anecdotal evidence, he said, that foreign investors are shying away from investing in SA because of the uncertainty over the protection of copyright.

Cachalia said the gaping holes and confusing terminology of the bill would create such uncertainty that his party would not be able to support it in its current form. He criticised the “gross haste” with which the committee was rushing through the bill on the grounds that it would accomplish populist redress and redistribution.

Another problem, he added, was the provision of the state owning copyright over works the  government had funded and the introduction of the concept of “resale royalty rights” for art-works. Resale royalty rights would allow an artist to claim a portion of the resale price of her artwork when onward sales were made.