If copyright protection goes too far, the results can harm democracy
Price gouging is possible in SA because of our record-breaking inequality and the monopolisation of textbook markets by large multinationals
Prof Sadulla Karjiker's assertion that the government is "intent on diluting intellectual property (IP) rights without regard for the future of the country" is hogwash. Copyright is vital to ensure that creators of art and literature can benefit from their works, but if copyright protection is taken too far the consequences are damaging for creators, industry and our democracy.
Imagine if President Cyril Ramaphosa was unable to quote Hugh Masekela's "Thuma Mina" in his state of the nation address without permission from bra Hugh's music company.
Karjiker's assertion betrays his proximity to vested interests within the Copyright Alliance, a group seeking to prevent South Africans from quoting, satirising, indexing, sharing and enjoying our own culture. SA is highly unequal. Two men have wealth equal to the bottom 50%; 65% of people are poor (with incomes under R50 a day). Perhaps this brutal reality escapes the professor in Stellenbosch. More than ever, we need a developmental state to balance the demands of profitable companies with the needs of the majority.
In 1997 when SA passed the Medicines Control Act, the price of HIV/Aids drugs was way beyond most patients. Why? Not because of the high cost of drug research. Because multinational companies had priced the medicines in SA at over $12,000 per person annually, figuring they would make more money selling to a few rich patients than catering for the majority. When parliament proposed importing cheap generics, IP purists protested. Thousands of innocent South Africans died in the name of IP enforcement (and former president Thabo Mbeki's denialism).
Global treatment activists joined our struggle for affordable medicines (contrary to Karjiker’s xenophobic view that foreigners are meddlers). SA rolled out the world's largest treatment programme, millions of lives were saved and the drug companies adjusted their business models and continued to rake in profits. Prices dropped 150 times to $75 and the global IP system was left unharmed, if slightly more humane.
As citizens of the most unequal country in the world, we urgently need a shake-up of neocolonial IP rackets. Reforming our law to allow fair use of copyrighted materials is one small but positive step forward.
Despite the Fees Must Fall campaign, thousands of South African students still can’t afford higher education. A textbook can cost as much as R1,800, exceeding the monthly income of many families. That would be like charging $550 in the US — many times the actual US price.
Price gouging is possible in SA because of our record-breaking inequality and the monopolisation of textbook markets by large multinationals. When African countries gained independence, they held few copyrights or patents. Colonialism was handy for controlling scientific and academic knowledge. Today 39% of IP royalties accrue to the US, followed by the EU, Japan, Switzerland and Canada.
Those countries account for 97% of IP income. Africa barely features.
Little surprise that the supporters of the Copyright Alliance include the Motion Picture Association of America and the US trade representative. Karjiker may believe the unequal distribution of intellectual property is an accident of nature, solvable by a bit more "technology transfer", but some copyright hardliners appear to be driven by more sinister motives than a neocolonial trickle-down mindset. Theirs is a deliberate strategy to “make America great again” by controlling the world's inventions, cultural products and pharmaceuticals. What else explains the hypocrisy of those who argue that exceptions and limitations to copyright are good for the US, but not for SA?
The US has copyright exceptions aplenty, allowing Trevor Noah to screen clips of Fox News’s worst proto-fascist Trumpites without asking the network for permission. Fair use also allows teachers and students to copy excerpts of textbooks or articles. The only condition: don't pirate whole works to replace the original in its intended market.
God forbid SA's creatives or educators should try the same. Media executives from Hollywood to Multichoice City would be up in arms, not to mention academic publishers. According to George Monbiot in The Guardian, "Half the world’s research is published by five companies: Reed Elsevier, Springer, Taylor & Francis, Wiley-Blackwell and the American Chemical Society.” Libraries must pay a fortune for journals, and consumers pay up to R750 for one article. Yet most research is publicly funded.
As citizens of the most unequal country in the world, we urgently need a shake-up of neocolonial IP rackets. Reforming our law to allow fair use of copyrighted materials is one small but positive step forward. And yes, Karjiker is right that companies like Google will benefit, because their business model relies on copying the entire internet so we can all search it.
Herein lies the biggest myth of the "copyright uber alles" position. Copyright exceptions and limitations do not stifle innovation; they promote it by allowing for new technologies. Would Karjiker have us shut our doors to Google, or to a generation of game-creators who need to sample images and sounds from copyrighted materials to make their businesses work?
We must ensure that YouTube remunerates creators fairly. But if Karjiker cares about starving artists, perhaps he should focus on another member of the Copyright Alliance, the Southern African Music Rights Organisation, which recently “lost” R50m of artists royalties in questionable deals in Dubai.
Karjiker’s assertion that copyright exceptions are being foisted on us by meddling foreigners is laughable. Having lost the argument he tries to belittle the messenger. His attack on trade and industry minister Rob Davies, the department of trade and industry and parliament is part of a last-ditch effort to sow disharmony and scupper progress of the new copyright bill. Clearly trade and industry officials and legislators are aware of the trade-offs, but they are committed to a developmental state.
SA creators have formed our own alliance, called ReCreate SA. Our aim is to support the rights of creators to own, earn and create, with the assistance of fair and balanced copyright laws. We represent filmmakers, photographers, equal education activists, university students, enlightened publishers, Wikipedia contributors, writers, game-makers, digital innovators, poets and more. Join us at www.recreatesa.org.
• Desai is chair of the Independent Producers Organisation, Cashdan is a TV producer, Fokane is a freedom of expression campaigner and Dlamini is a student activist at UCT.