Picture: ISTOCK
Picture: ISTOCK

New copyright legislation will be the first government implementation of policy for the fourth industrial revolution in SA.

The Copyright Amendment Bill of 2017 before the president for signature features copyright flexibilities needed for SA to benefit from the fourth industrial revolution. These will free SA entrepreneurs to develop innovative techniques of data analysis without holdup from copyright holders, to grow local data analysis capacity and allow innovation in artificial intelligence (AI) and the internet of things.

Global leaders in AI such as Microsoft will find SA a preferable destination for investment in research & development. South African industry will be able to access local, rand-denominated, AI services. Data localisation will become practical when local AI capacity is developed. Without copyright flexibilities, SA will become a source of raw data, processed in countries perspicacious enough to deploy copyright flexibilities.

One of the drivers of the fourth industrial revolution is AI that uncovers previously unseen patterns and develops algorithms so that computers can perform tasks they were previously incapable of doing. Many recent developments in AI are based on machine learning, which requires vast data sets to identify patterns and develop algorithms. Inputs for machine learning include not just traditional data but huge training sets of video, audio recording, text, even software, each subject to copyright.

Most products of machine learning, such as an algorithm that can recognise a car in video footage, or an algorithm that can predict energy demand in a grid, are utterly unlike their input data. Even so, some steps in machine learning for multiple categories of input are barred by copyright. Tracing each copyright holder for each item in a vast machine learning corpus is impractical, and obtaining permission for each is impossible.

In May 2018 the Japanese Kokkai (parliament) changed Japanese copyright law to explicitly authorise machine learning. In June 2019 a Canadian parliamentary committee on industry, science and technology recommended introducing copyright flexibilities that enable AI.

In the US, where AI breakthroughs were first achieved, existing copyright flexibilities permitted innovators to develop new analytical techniques. Copyright flexibility has proven a decisive advantage to innovation in the US in previous technological revolutions. By one estimate, industries relying on fair use accounted for 16% of the US economy, generating $5.6-trillion a year.

That was in 2014 before the growth of AI, facilitated by fair use. But the trade policy of the developed economies emphasises obtaining strong rights for their corporations from developing countries rather than affording them the competitive advantages that they used to become producers rather than consumers of technology. Putting similar flexibilities into SA copyright law gives SA the same advantages.

Though new technologies offer economic growth for SA they threaten the profits of some. Those most invested in keeping the economy unchanged will demand government protect their businesses, and warn of job losses if government does not.

But as Prof Tshilidzi Marwala, deputy chair of presidential commission on the fourth industrial revolution, points out, “in the fourth industrial revolution era, some jobs will disappear, some will change and new types of jobs will be created”. Similarly, some business models will no longer be viable, some will change and some new business models will emerge.

It isn’t surprising if legacy industries oppose the copyright flexibilities needed for AI. The publishing industry, already under scrutiny by the Competition Commission for book price fixing, has voiced fears of job losses if SA’s obsolete copyright law is updated. But content intermediaries are not always good at predicting how new technologies will affect them.

When the video recorder was introduced, representatives of the movie industry in the US compared it to a serial killer that would murder their industry. The US supreme court upheld the copyright flexibilities needed for use of VCRs, and far from being killed the movie industry went on to reap huge revenues from a new revenue stream of video rentals.

Content intermediaries want the bill sent back to parliament, prolonging a policy process that began with the Farlam commission in 2010. Delaying the introduction of copyright flexibilities would not shield content intermediaries from the forces reshaping the global economy. It would prevent SA from leading AI in Africa. Competition is heating up. Google has already chosen Ghana for a new centre on AI, while Microsoft is investing $100m to develop engineering capacity in Kenya and Nigeria.

SA still has some advantages, but must now use them decisively. By signing the Copyright Amendment Act the president will be kick-starting the fourth industrial revolution in SA.

• Dr Rens researched regulation of AI and the internet of things at American University in Washington, DC

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