Trade and industry minister Rob Davies recently responded to a letter from the Academic and Non-Fiction Authors’ Association of SA (Anfasa), sent in advance of the National Assembly’s adoption of the Copyright Amendment Bill. 

The letter had informed him of a petition co-managed by the association asking for reconsideration of the legislation. The petition had more than 3,000 signatories, including noted authors, artists and playwrights JM Coetzee, Athol Fugard, John Kani, Breyten Breytenbach, Wilbur Smith, Deon Meyer and Zapiro, among others.

The association agrees with the objectives and principles expressed in the minister’s response — that copyright should be an instrument to drive innovation and generate creativity. These objectives chime perfectly with Anfasa’s, which include supporting and uplifting authors and raising their status in society; ensuring authors receive adequate recognition and payment of royalties; advocating for the intellectual property rights of authors; encouraging creativity; and ultimately contributing to SA culture and heritage.

Anfasa’s position on copyright law is that it should provide the balance between authors’ entitlement to reward for their talents and labour on one side and, on the other, the needs of society to benefit from what the authors have written. Copyright law is complex and delicate, and when that balance is disturbed there are unintended consequences, to the detriment of scientific and cultural development.

We are therefore bound to correct the minister’s assertion that “the 1978 Act had no exception for education or research”. Sections 12, 15, 16, 17, 18, 19A and 19B of the current act, and chapter 1 of the copyright regulations, already lay out numerous exceptions for education and research. However, the bill broadens and extends those exceptions to the point where unauthorised, unpaid and even unacknowledged use of an author’s work is permitted if it is “for education” — an undefined purpose open to many levels of interpretation. The result will be great legal uncertainty and an open invitation to endless and costly litigation that neither authors nor libraries and universities can afford.

The minister also says the cost of buying educational material in SA is very high, “therefore flexibilities will be incorporated with teaching exceptions”. It appears he is saying that because textbooks and scholarly journals are expensive, the law is going to be changed to make them cheaper.

Many of our members are themselves teachers and academics, and they are as worried that many, if not the majority, of students can’t afford to buy books. That is why there is a collective licensing system that allows copying of extracts from published educational material for a small fee. For a university holding a “blanket licence” to copy chapters and articles and distribute them in course packs, the fee per student per annum is R129.56, plus VAT.

Knowing this, we were amazed by what Joanmariae Fubbs, chair of the portfolio committee, said in parliament: “I am told that currently students have to pay R1,000 to use one or one-and-a-half chapters in a textbook.” The minister himself spoke in parliament of “the ridiculous notion that every time you go to a photocopy machine, you have to put a bucket of money into somebody’s pocket” and “as politicians, we have to make decisions. I think we made no apology for taking decisions in favour of students in education.”

The association was also disappointed by these motivations for copyright exceptions since they were not supported by any research or impact assessment in relation to the bill, nor was this intended effect of the bill even debated by the portfolio committee. The 2014 regulatory impact assessment to which the minister refers in his reply to us only justifies the statutory licences in schedule 2 of the bill, and certainly not, as he said, the bill’s approach on copyright exceptions and limitations.

The association unreservedly supports decisions that lead to benefits for students. Learning and knowledge production are at the core of our ideology. However, when making free what is currently licensable will lead to a student saving R129.56 per year while significantly reducing authors’ earnings, one cannot help but question the wisdom of that decision.

If one reviews the consultative process leading up to the passage of the bill by the National Assembly, the inescapable conclusion is that some positions were consistently favoured over others. Our organisation was involved in this process from the start. We attended numerous meetings, conferences and seminars. We made submissions. We participated in public hearings in parliament. But not a single one of the concerns we raised on behalf of authors, or the points we made about the balance of needs and interests copyright law should seek to preserve, was taken into account.

This and the most recent pronouncements raise the question of whether the bill is about the need for exceptions and flexibilities and the crucial role of universities as producers of new knowledge, or whether there is another agenda influencing decision-makers. Indeed, it seems the bill is about creating a legal framework with excessively broad exceptions to copyright (broader than in any other country that is a member of Trade Related Aspects of Intellectual Property Rights); a framework that has been promoted by people known to be close to US internet technology companies and who have been active in SA and other countries, and who seem to have had preferential access to the department of trade & industry (DTI) and parliament.

Their promise of legislating free uses of copyright works to benefit internet technology, to the detriment of the creators of those works, coupled with the prospect of a reduction of the cost of education for governments must seem irresistible. But these free uses come at a cost, the impact of which has not been assessed by the DTI. The bill’s excessive copyright exceptions expropriate the rights of authors, the spoils of which will be shared between those who make these works available using internet technology and educational authorities and institutions that choose to reuse these works without remuneration.

Though we are sympathetic to the minister’s contention that the bill “cannot be delayed any longer”, it was fatally flawed from the start. The government and parliament should ask themselves whether, in reality, this bill will do what it is supposed to do, namely benefit students, producers of knowledge and innovators, as well as society in general.

• Prof Ngubane chairs the Academic and Non-Fiction Authors’ Association of SA.