SADULLA KARJIKER: Fair use and artificial intelligence

It is hard to be upbeat about the year ahead, and the return of rolling blackouts (I refuse to use the euphemistic “load-shedding”) does nothing to allay my pessimism. What makes 2024 an even more scary prospect is that it is an election year, which brings with it the usual fare of ill-considered and harmful populist measures from the governing party.   

In my own area of interest, the Intellectual Property Laws Amendment Act was passed last year. Despite there being no internationally accepted agreement on the mechanism for protecting indigenous (or traditional) knowledge, or traditional (or indigenous) cultural expressions, the SA government was determined to introduce a new law before the 2024 election, and it was duly enacted. 

However, it remains an ill-considered attempt at protecting traditional cultural expressions, and does so in a manner that is out of kilter with the majority view of experts in the field of intellectual property law, both locally and internationally. It is a Procrustean attempt to force the protection of traditional cultural expressions into the existing intellectual property framework, even though traditional cultural expressions do not conform to the requirements of the existing forms of intellectual property. 

Before the 2019 general election then-president Jacob Zuma introduced an unsustainable system of funding for university students, and the financial bill from that political move is still rising. This will no doubt lead to more instability when the government is forced to recognise the folly of its actions. 

So I think you can forgive my pessimism, and share my trepidation, when it comes to the Copyright Amendment Bill. Little of substance has changed in the bill since the first draft in 2015. All the major concerns remain, which leaves one with the justifiable impression that thus far calls for written submissions on the bill, and previous public hearings, have merely been exercises in creating the impression of proper consultation and public engagement. In other words, it has been little better than a sham of consultation and public engagement.   

Worse still, given how shoddy the Copyright Amendment Bill drafts have been from a technical perspective and how skewed the substantive provisions have been formulated, there are good reasons to suggest it was the product of a captured agenda, rather than a genuine attempt at copyright reform. Given what we now know about state capture, it is submitted that it would be irrational to pretend the department of trade, industry & competition was somehow an island of excellence in an otherwise dysfunctional government. 

I must make one thing perfectly clear though, lest I be misunderstood again. Yes, I am referring to the Copyright Amendment Bill’s provisions for exceptions for persons with visual disabilities, or who are otherwise print-disabled. No right-thinking person has any issue with the introduction of the exceptions pursuant to the Marrakesh Treaty. What I have a problem with is the cynical use of the introduction of those exceptions as a Trojan Horse for other changes that are highly problematic.

Incidentally, the Blind SA case was revealing in exposing the hypocrisy (and opportunistic behaviour) of the proponents of the Copyright Amendment Bill who enthusiastically supported the litigation. The Constitutional Court refused a request for the reading in of the proposed section 19D of the Copyright Amendment Bill into the Copyright Act, as the court did not consider the proposed section sufficient to address the needs of the beneficiaries. It preferred to draft its own clause to be read into the act as an interim measure.

So much for the Copyright Amendment Bill being fit for purpose, even for the beneficiaries of the Marrakesh Treaty. As I have previously suggested, the exceptions pursuant to the Marrakesh Treaty should be excised from the Copyright Amendment Bill and expeditiously enacted. 

Fair use exception

If there is one substantive change that has been the focus of criticism of the Copyright Amendment Bill (and, no doubt, the change proponents of the bill are doing their best to enact) it is the proposed introduction of an open-ended, US-style fair use exception to copyright protection. 

One wonders why proponents of the Copyright Amendment Bill have been so quiet about the recent spate of fair-use litigation in the US. It is no doubt because it rubbishes any notion that fair use is more responsive to technological change, and that it brings about greater legal certainty. One shudders to think what it cost photographer Lynn Goldsmith to vindicate her rights in the 2023 US Supreme Court litigation concerning Andy Warhol’s infringement of her photograph. 

The aforementioned case resembles the allegations of copyright infringement by SA photographers Graeme Williams and Peter Magubane (who sadly passed away on New Year’s Day) against the American artist Hank Willis Thomas. I seriously doubt whether, in the absence of pro bono legal assistance, they would have thought it worthwhile to pursue a copyright infringement claim in the context of fair use, even domestically.

That reason alone makes fair use an ideal instrument for corporate bullies with deep pockets, who have no regard for the rights of others in pursuit of profit. If that were not enough, there are the more recent developments concerning the allegations of copyright infringement in the context of text and data mining relating to artificial intelligence, where we wait to see what is permissible under a system of judicial lawmaking.   

The substantive changes proposed by the Copyright Amendment Bill could do untold harm to the prospects of future generations (and existing artists and authors) of this country. If we are not clear about the role of copyright protection in society, and fail to adequately protect our artists and authors, we run the risk of relegating them to again being considered mere hewers of wood and carriers of water.

We risk condemning future generations of South Africans to being second-class citizens (if not worse) in a global village. 

• Prof Karjiker is the incumbent Anton Mostert chair in intellectual property law in the law faculty at Stellenbosch University.