No reason for president to delay urgently needed copyright law
Local criticism and US disapproval should not deprive the millions of people who would benefit from updated approach to intellectual property
When the SA Copyright Act of 1978 came into existence the world was a different place. Apartheid was in full force, the internet did not exist and the word “meme” was merely an obscure concept in evolutionary biology. Forty years later SA is another country, but it still has essentially the same, archaic copyright law — stifling education, crushing creativity and thwarting economic progress.
The department of trade & industry (DTI) has been considering proposals for copyright reform since at least 2004. We know this because as early campaigners for access to knowledge we were in many of the early consultations with the government. At last it seemed as if the deadlock had been broken. After extensive public consultations, in March parliament passed the Copyright Amendment Bill and the Performers Protection Amendment Bill. These bills offer an urgent and necessary correction to harmful laws.
Both bills were sent to the president for assent and signature seven months ago, but to date he has done neither. The president has been urged by some to send the copyright bill back to parliament, under the erroneous assumption that the president has the power to return legislation to parliament if there is criticism from vested industry interests or if a foreign country expresses its displeasure. Alas, this is not how constitutional democracy in SA operates; parliamentary decisions cannot be unmade on the whims of the DA’s Dean Macpherson or US President Donald Trump.
SA’s constitution separates the powers of the legislature, the executive and the judiciary. Section 79 of the constitution describes the powers and duties of the president in dealing with legislation passed by the legislature. The president must assent to and sign a bill sent to him within a reasonable period. Only if he has serious reservations about constitutional matters — relating to the manner in which the bill was passed, the powers it gives government organs or conflict with the bill of rights — may he return it to parliament. The expert legal opinion on this point is clear: there are no substantial constitutional concerns.
There is a real danger that the president will, notwithstanding, send the bill back to parliament for reconsideration. The other likely danger is stasis: that he will let the bills wither and die by simply doing nothing about them. Either option would be a disaster for the future of the country. Consider who is being harmed by the status quo. First, the 3-million blind or visually impaired people who are prohibited from accessing information equally with everyone else by the 1978 Copyright Act. Second, students, for many of whom the simple act of buying books to learn, whether in school or at university, is too expensive. (The average annual cost of books for tertiary education is R6,000). Third, musicians, who are often not paid the full royalties owed to them by collecting societies. Fourth, creators of media, from books to film to art, who cannot make use of the freedoms granted to their counterparts in countries like the US (ironically) without breaking the law.
The bills lying on the president’s desk will give blind people their constitutional right to be informed, give all SA citizens engaged in teaching, learning and research the ability to do their work unhindered, give artists and musicians the right to own and control their copyright on equitable terms, and give the country the ability to be a leading player in the fourth Industrial Revolution.
It would take a monster to object to any of this, and that monster exists: the US media industry, which faces both declining value and power compared with the new kid on the block, Silicon Valley. So instead the movie, music and publishing industries have trained their guns overseas, with some success. We are not alone, despite what you may read: in 2019 a whopping 36 countries were singled out by the US administration for having “unsatisfactory” patent or copyright laws, including Canada, Switzerland, India, China, Russia and Brazil.
The perceived threat is that the US government will give in to its media industry and slap tariffs on imports from SA. But it’s a hollow threat. In 1998 SA was singled out for proposed changes to the Medicines Act that would ease the use of generic drugs, primarily to treat the millions of South Africans with HIV who needed them to stay alive. The US pharmaceutical industry and US government backed off when an outpouring of international outrage slammed them for preventing SA from taking perfectly legal action to keep its citizens alive. We won in 2001 and we can win again in 2019.
Not only does the country’s copyright law need an urgent fix, so does patent law. That fix has been 20 years in the making, and the department of trade & industry now has an approved policy for reform in place. A bill that amends the Patents Act is awaited. It is urgently needed by the millions of people in the country who have life-threatening conditions and cannot afford the medication they need to stay alive and by the department of health, which foots the bill for public health. The manner in which the government deals with pressure on copyright will be instructive for how it handles the looming patent amendment.
Lobbyists aligned with the US media industry claim that aspects of the copyright bill may be unconstitutional. Most independent legal experts refute this claim. Another contention is that the process was flawed because of a “tagging” problem, and that provincial functions were affected. However, intellectual property is clearly a national issue due to international treaty obligations, and most independent legal analysis confirms the lack of a tagging problem.
A further contention is that there was not enough public consultation, despite the process lasting several years and the parliamentary subcommittee in charge reopening comments on proposals no less than four times. The most ludicrous of all these contentions may be that “fair use” in copyright — a concept that allows users to do what you normally assume users can do, a concept we copied from US legislation — is an arbitrary deprivation of property. This is about as valid as saying that allowing blind people to learn is unconstitutional.
Here’s the hard truth. The government has finally taken serious steps to bring the SA intellectual property system in line with the times, and the developmental imperatives of the country. To stop this process now, or worse, to backtrack, could mean the difference between life and death for millions of the most vulnerable people in the country.
The copyright wars are a test of sovereignty. What the government does on copyright reform today — and patent reform tomorrow — will determine whether SA is indeed a regional leader, an anchor of Brics (the grouping of Brazil, Russia, India, China and SA), a moral and economic powerhouse in the emerging world, or merely another weak country whose democratic will can be trampled at the flick of a faraway finger.
• Dr Rens is a legal expert on technology regulation and policy who works on artificial intelligence. Prabhala is a fellow of the Shuttleworth Foundation and co-ordinator of the AccessIBSA project.