Flexible copyright bill rightly factors in swiftly changing tech sector
Software is becoming increasingly central to many parts of our lives and needs to be able to adapt to an unknowable future
A bill to amend the 41-year-old Copyright Act has been passed by the National Council of Provinces (NCOP) on March 28 and now goes to the President for signature. Most of the media discussion on the bill has centered on how it will affect a legacy industry — publishing. But there has been surprisingly little discussion about the need to update copyright to cope with next-generation technologies.
Big data, artificial intelligence (AI), the internet of things and the fourth industrial revolution require policy responses across a wide spectrum, from energy to data privacy. The bill, appropriately, deals only with the copyright element of these issues. As a result of a process that has included four rounds of public comment, the bill includes important changes for the tech sector.
But its not only the tech-specific reforms in the bill that matter to innovation. The fourth industrial revolution is expected to reduce unskilled and semi-skilled employment. Growth of in-demand skills relies on an educated workforce. The education provisions of the bill include exceptions for education and parallel import of educational materials. These are not just for the benefit of individual learners but essential to prepare SA for disruptive change.
While amending the 1978 Copyright Act to suit digital technology is important to the SA tech sector, software isn’t important only to this sector. Mobile banking runs on software, as do an increasing number of heart monitors. On March 14 2019 hundreds of Boeing aircraft were grounded because of a software problem. As Silicon Valley investor Marc Andreessen says, “software is eating the world”.
The bill introduces several overdue fixes specifically for data, application programming interfaces (APIs), interoperability and anti-circumvention. But like any other law, it cannot predict unimagined technologies. Instead, copyright needs to be flexible to adapt to technological change.
The bill introduces flexibility into SA law through a hybrid fair-use clause. Critics of fair use say they prefer highly specific, detailed exceptions. Detailed exceptions are important, but they can only ever be backward-looking, dealing with current uses of current technologies. Only a general exception clause is future orientated. A general exception clause allows courts to balance innovative uses against the exclusivity given to copyright holders, and so enable continuous adaption.
Businesses are increasingly relying on data analytics to improve processes and realise efficiencies.
Companies and countries are investing heavily in AI. One of the leading AI technologies, known as deep learning, relies on vast data sets to reveal patterns. The bill removes uncertainty on the status of data so that SA AI researchers can proceed confidently.
Software engineers will benefit from certainty on APIs. These have been used by coders for decades as a way of telling other coders how to build software to interoperate with their own software. Recently Oracle has attempted to claim copyright over widely used APIs for Java. This claim undermines decades-old software development practices and threatens innovation.
In February 2019 Microsoft, Red Hat, Mozilla and the Computer & Communications Industry Association all filed briefs asking the US supreme court to reject Oracle’s claim. Specific provisions in the bill will prevent similar threats to SA innovators, but they will only be safe when it is law.
Because technology keeps evolving, drafting legislation for the sector isn’t easy. Exhibit A is the troubled history of anti-circumvention. In the 1990s the manufacturers of compact discs tried to prevent copying by adding TPMs, colloquially known as copy controls, to CDs. Human ingenuity quickly overcame the controls so they pushed for laws prohibiting circumventing controls. Internationally anti-circumvention rules were introduced in a treaty devised by the US and Europe.
In response to persistent demands from some industry players whose primary demand was anti-circumvention provision, the bill included them from the very first draft. Curiously, several of the most ardent supporters of anti-circumvention vehemently opposed the bill because it includes new royalty rights for the writers, composers and artists.
Anti-circumvention rules were created to prevent copying of recorded music and movies stored in what are now almost obsolete media. But anti-circumvention also applies to software, and so to an astonishing array of devices that rely on software to work.
If flight software has TPMs added to it, then an aviation authority investigating an accident would have to circumvent them to test the software. An airline would have to circumvent TPMs to fix defective software to prevent fatal crashes. Aviation authorities and airlines would have to risk criminal penalties for circumvention. To prevent this kind of situation, the bill allows someone to circumvent protection measures if they are doing something that is already allowed by an exception. But there isn’t a specific exception in copyright for testing and fixing defective software that crashes planes. Until recently not many people would have foreseen the need.
Since it is not possible to foresee every situation in which it is crucial to modify software, what is needed is a flexible exception to copyright and a corresponding exception to anti-circumvention. The bill has both, because prohibiting circumvention without allowing fair use and authorised circumvention for fair use would endanger cyber-physical systems
It is understandable that those invested in existing business models should be anxious about changes to copyright law. But the entire SA economy needs to become more innovative. The Copyright Bill can help. But copyright law, whether changed or not, cannot protect legacy industries from the disruptive changes to the global economy. Only innovation can save them.
• Dr Rens is an expert in SA technology law who is currently researching the internet of things at the Internet Governance Lab at American University in Washington DC.