The Copyright Amendment Bill will improve publishing, not destroy it
Our Copyright Act has not been updated since the 1970s — it was passed before the VCR was invented
There has been a recent uptick in criticism of the Copyright Amendment Bill coming out of publishing companies and collective management organisations (CMOs), such as the piece by Mpuka Radinku, Copyright Amendment Bill puts the publishing sector, and jobs, at risk.
CMOs, such as the SA Music Rights Organisation (Samro) and the Dramatic, Artistic and Literary Rights Organisation (Dalro), are entities that collect copyright royalties but are regularly criticised for not paying creators.
The reason CMOs and publishers are up in arms about the bill is because President Cyril Ramaphosa’s state of the nation address promised to regulate them through necessary provisions that have been lacking in our law for decades. The purpose of the bill is to improve access to copyright for both creators and the general public who rely on the copyright system for education, innovation and creation. It provides a balance that has been missing for the past 41 years from the SA copyright regime.
Creators support the bill because it advances three key interests of individual creators:
The right to create: The bill creates modern exceptions to copyright, including a balanced “fair-use” right, that permit digital and other uses necessary to make original work and to exercise our freedom of expression. We support this right because, as creators, we need fair access to the works of others to quote, sample and express the reality in which we live. All creators are also users.
The right to own: The bill removes the apartheid-era standard that made the commissioner of many works the default owner of our art. This is one of the most important changes for film makers and photographers. No longer will broadcasters, publishers and others automatically own all the rights to prevent us from re-using our own work in other projects or markets not served.
The right to earn: The bill improves the regulation of contracts and CMOs to ensure we are paid for our work and protected against abuse and exploitation. Publishers and CMOs have opposed the bill by making fabricated statements out of fear that the bill will expose and rectify their exploitative practices though its proposed reform.
Impact assessment and public consultation
Our Copyright Act has not been updated since the 1970s — it was passed before the video cassette recorder (VCR) was invented. Conversations and attempts to update copyright law date back to the late 1990s and early 2000s. The government has given all stakeholders more than enough time to be heard, through meetings, workshops, a conference, public hearings and several chances to make submissions on the bill. Some of the Copyright Alliance members were even on the technical team to improve the drafting, language and layout of the bill.
The Copyright Amendment Bill will increase the bargaining power of creators, libraries, museums, schools, people with disabilities, and others, in their relationships with publishers and collective management organisations
Despite this, the publishing industry and CMOs, who coincidentally are also members of the Copyright Alliance, continue to complain that the consultative process has not been adequate and that their submissions have not been taken into account. They are currently spending millions of rands on a massive lobbying campaign instead of listening to the needs of members which they claim to represent.
Samro is currently under investigation by the department of arts and culture for allegedly failing to pay gospel musicians their rightful royalties. It also wasted a great deal of members’ royalties on a failed investment in Dubai and the repurchase of Samro House. Instead of resolving these issues, they chose to rather pass the blame onto the Copyright Amendment Bill by insisting that authors and creators will not get their rightful royalties.
The bill red flags their failure to pay royalties and negotiate fair contracts with their members. Instead of considering the benefits in the bill, their exaggerated claims in the media are causing panic among authors and creators.
Growth — not job losses and disinvestment
Claims that favouring creators in copyright reform will harm the economy are not supported by the experiences in countries that have adopted fair use. The economies in Singapore, Malaysia, Israel, Philippines and other countries that have adopted it have continued to grow strongly. Indeed, one econometric study shows that technology industries grow faster — and publishers and entertainment companies expand — as a result of fair use.
Fair use will not destroy publishers
It is a frequently-stated falsehood that adopting fair use destroyed Canadian publishing. Studies show that, in Canada, payments to CMOs have been declining as universities and others rely more on fair dealing (they don’t have fair use). There are various reasons for the downturn in their publishing industry, but research shows that it is not Canada’s fair-dealing provisions that are the cause.
Redirection of library resources has, in fact, resulted in more spending on the products of local Canadian publishers. In SA, more than 60% of books used in schools are locally published (Publishing Association of SA, 2013), yet more than 60% of Dalro licensing revenue goes to foreign publishers (Copyright Review Commission). The bill seeks to improve the situation for SA publishers.
Furthermore, under all copyright laws, copyright owners have a right to go to court to enforce their rights. They have to prove an unlicensed use. Fair use is a defence. The burden for proving a defence rests with the user. That is true under our current fair-dealing law and it applies to fair use as well.
Fair use does not drive up litigation or its costs
There has been no reported explosion in litigation in South Korea, Philippines, Israel, Singapore or other countries that have adopted fair use. Copyright law in the US is not a major litigation area. A review of a sample of all recent US federal court cases found that copyright cases made up just 0.75% of the docket, and fair-use rulings make up just 0.004% of cases. In the event of litigation, the burden of costs is not likely to fall on the “poor” authors or creators, but with the copyright holders, who are usually large publishers that generally have legal advisors, litigation budgets and insurance to cover such cases.
Fair use is not a giveaway to music-sharing platforms
Fair use doesn’t let anyone avoid paying a licence to play, perform, or copy a work in a way that substitutes for the market of the copyright owner. There is little or no commercial fair use on YouTtube. Content identity allows the copyright holder to monetise (receive the advertising revenue) from any use of their work on YouTube, even for uses that would be a fair use under US law.
It is time to consider what is really at stake. The Copyright Amendment Bill will increase the bargaining power of creators, libraries, museums, schools, people with disabilities, and others, in their relationships with publishers and CMOs. It is logical that publishers and CMOs would be opposed to such legislation as it is a threat to their profit margins — not their members.
Many creators, artists, film makers and other creative users and producers of copyright works, as well as the general public, will benefit from the Copyright Amendment Bill. No piece of legislation suits all stakeholders but this bill is a major improvement for most stakeholders. Rather than rejecting it, we should embrace it for the sake of access to knowledge, creativity and innovation in SA.
• Flynn is associate drector, programme on information justice and intellectual property, American University Washington College of Law, and former clerk to chief justice Arthur Chaskalson; Tusi is a ReCreate policy fellow.