Reckless copyright bill a threat to creative industries
Murky ‘fair use’ clause means content producers can be widely plagiarised, robbing them of income and the country of original work
The department of trade and industry’s reckless pursuit of the Copyright Amendment Bill will have disastrous consequences for SA creative industries. Due to the unspecified “fair use” clauses in the current bill, artists will have no protection from rampant plagiarism, which favours those who seek to exploit original content without creating it or investing in it.
At face value, amendments to the bill imply “fair use” of work in the pursuit of education or dissemination of information. However, the bill goes too far and will ultimately work against SA content producers. In the publishing industry alone, PwC’s economic impact assessment projects a 30% reduction of sales and a loss of jobs equating to R2.1bn per annum.
A recent symposium by the Academic Non-Fiction Authors’ Association of SA (Anfasa) at the University of Witwatersrand showed the frustration felt by scholarly writers and publishers over the bill. With the marked global prevalence of predatory journals and the recently launched, open-access science initiative Plan S, intellectual property concerns and appropriately incentivised opportunities for knowledge producers are made more vulnerable by “fair use” clauses, particularly in the SA context as a developing country with valuable, original content.
“Fair use” would allow for the unspecified use of others’ work without permission. An operational example is the American Psychological Association, which allows permissible citations of a substantial 400 words in single-text extracts, or 800 words in a series of text extracts. This problematically impinges on copyright, especially as it is moved to different platforms, for example online open-access platforms. The unclear line between this and plagiarism at tertiary level is incredibly hazardous to SA educational standing.
Professor Keyan Tomaselli, of the department of communication studies at the University of Johannesburg, warns that without protected in-house publications or course literature, private educational colleges will decline. He also stressed the necessity of competition to diversify and advance the quality of local education.
With “fair use” impinging on compensations for original works, production would decline and shift reliance to imported textbooks. Reduced export of SA products and greater import amid an ever-weakening rate of exchange means further reductions in local revenue and greater educational costs.
A loss of grants for evidence-based research would mean the humanities, historically the least funded faculty, would be most adversely affected. This means a curtailed local and global understanding of our diverse history, literature, music and social sciences.
If there is no independent investment or fair incentive, enterprise and funding must come from SA’s already stressed state coffers. Those in power would thus regulate educational content. This borders uncomfortably close on censorship.
Unlike the US, SA does not have a civil punitive legal system with case-law history awarding mandatory statutory damages for copyright infringement. Added to this, the proposed new legal defence under the “fair use” doctrine could result in copyright owners being unable to effectively and efficiently enforce their rights.
A court ruling would be needed to determine whether the use is fair before “guilty knowledge” could be proven and would be at the behest of the infringer before damages are claimed.
A defendant may simply apologise, “cease and desist” from further offending action and be ordered to pay the standard royalty or licensing fee in permissible usage, or the recoupment cost of the content creation. It may not factor the income accrued by the infringing party nor the full legal costs of the plaintiff. In this environment, contingency-based legal assistance for authors, who are already in deficit due to impeded earnings, will be scarce.
Rights in the bill will be rights in the industries. In their aim to be progressive, the drafters of the bill will introduce an undesirable murkiness in undue and over-regulation of the industry tantamount to governmental interference in private contractual negotiations and agreements. Why should SA creatives be restricted as such when they aren’t anywhere else in the world? A more balanced legal playing field is needed.
All agree that a digital-era amendment to the copyright bill of 1978 is necessary, but lack of proper industry consultation by the portfolio committee on trade and industry in an incredibly diverse creative sector has resulted in legislature far from inclusive. Lack of clarity in exceptions and provisions that seek to introduce one-size-fits-all solutions that may aid some industries but introduce issues in the others are clear indications the bill requires a lot more consideration, consultation and economic impact assessment before it would be anywhere near appropriate for implementation.
Unlike the US, SA does not have a civil punitive legal system with case-law history awarding mandatory statutory damages for copyright infringement
Another consensus is that SA succeeds to the Marrakesh Treaty, which makes the production and international transfer of specially adapted books for people with sight impairments by limitations and exceptions to traditional copyright law. A thriving educational environment with fair intellectual property protection would bolster the publishing industry and provide specialist writers and transcribers with much-needed funds to develop these materials. These efforts would be hampered if we don’t recoup as we endorse.
At the Anfasa event, “fair use” proponents ReCreate expounded: “It’s been hard for the DTI [department of trade and industry] to make everyone happy and think of everyone” and duly urged the unanimous dissenters to voice their concerns and provide solutions. But all organisations present, including many in their personal capacity, have submitted such to no avail. As Monica Seeber of Anfasa puts it, “Not a single submission or single piece of advice was ever acknowledged, let alone taken.”
So what are the solutions? The bill fails to understand the distinctions and diversity in the industry due to lack of impact studies and engagement with those this will most affect — from independent labels to artists who invest their own funds into the creation of their intellectual-property small businesses. If the bill wants to include “fair use”, it needs to also address exclusive, statutory damages to enforce civil claims. It needs to reflect the understanding of market-related royalties within various industries.
With far more pressing bills under consideration, such as land reform, there seems to be considerable political will behind passing this. It has, indeed, been referred to as the “election bill”. The legislative process thus far has been fundamentally flawed, with no invitation extended to industry, nor specialist copyright legal advice sought in its drafting. It’s been shrouded in secrecy from its inception.
Parliament received more than 1,000 submissions in response to the bill, with only 70 making the final cut. These responses were deliberated on for a mere hour. In 2017, the department of trade and industry hosted an event with Google where they referred to the tech industry giants as “their partners”. However, they did not attend any of the workshops to which they were invited by industry. Why has this been so one-sided?
As a musician and music educator at school level, my ardent efforts are to impart formative interest and, hopefully, career aspiration to my pupils; to see them take up the mantle in tertiary pursuits, to contribute to the arts and teach us in turn, but only in good conscience if their efforts are protected and viable.
Anfasa’s aim is to “give voice to the interests and concerns of all academic and non-fiction authors, whether or not their works have appeared in print”. This manifested in the said gathering: a full room of writers, editors, researchers, publishers, educators and many others expressing their concerns and further investing their personal time, efforts and mental energies to understand the impact of the bill on their industry. As it stands, it is likely the latter of Anfasa’s mission statement will be the unfortunate majority outcome for SA voices.
• Pri Hollis is a Johannesburg-based singer-songwriter, music educator who writes on music law pertaining to intellectual property