A new approach to copyright, amending the Copyright Act of 1978, is about to be submitted as the Copyright Amendment Bill (2017) to the National Assembly of the South African Parliament.
The Bill affects the spectrum of South Africa’s creative industries, from authors to artists to musicians, as well as publishers. A spectrum of users are also affected, including general readers, persons with disabilities, learners and students, and users and staff of libraries, museums, archives and galleries.
Technological revolutions are forcing a rethink of copyright to provide for digital developments. The Bill therefore includes some positive additions and changes to copyright practice in South Africa. The Bill however introduces a new copyright doctrine which threatens livelihoods of thousands in the creative industries. It also threatens in the long run to stifle our culture of reading, education and training, creativity and innovation, as well as the socio-economic wellbeing of South Africans.
The Publishers’ Association of South Africa (PASA) is in favour of the creation and general availability of copyright-protected literature and has supported amending the outdated aspects of the Copyright Act. At the same time, PASA has serious concerns about the Bill’s allowing copyright material like schoolbooks and textbooks, to be copied and adapted for a wide range of purposes without authorisation and remuneration as has always been the case to maintain sustainable availability of these works. This concern is shared by various international organisations.
The new copyright doctrine is being introduced without sufficient protection to copyright holders. How this doctrine could negatively affect three major publishing sectors – trade, academic and educational – is detailed below.
The term ‘trade publishing’ refers to books in various formats that are bought and read by the general public and are typically bought for public libraries. With the economic slump already affecting the South African general book trade, the contentious Bill directly threatens the rights and livelihoods of authors and trade publishers.
An objective of the Bill is to develop a legal framework that will promote in a balanced manner both accessibility to users of such books, as well as acknowledgement of the rights of book producers. The new legal framework with its broad ‘fair use’ clause, extended general exceptions to copyright and new exceptions for educational institutions, libraries, archives and galleries undermines the rights of South African trade authors and publishers.
Reasonable protection by copyright incentivises creative output and yields socially beneficial literary creations for the South African trade market that can transport a reader to different times, lay bare social struggles and introduce diverse sides of humanity. The Bill fails at providing a balance between the interests of authors and the needs of society. It favours social needs and interests over authors’ interests, having the effect that the production of creative works could decline – to the detriment of society.
According to the PriceWaterhouseCoopers (PwC) socio-economic impact assessment report of 2017 a weighted 33% decrease in book sales is to be expected which would amount to a decline in sales of around R2.1 billion a year. The PwC report also estimates that it is likely that imports will increase, and exports will decrease - and the rich storytelling of our own authors will wane.
“Information wants to be free”, the rallying cry of the First Hackers Conference of 1984 resonates in our #FeesMustFall moment marked by students’ insistence on tertiary education that is free, decolonised and locally relevant. The activist Stewart Brand continued: “[I]nformation wants to be expensive, because it is so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower all the time.”
This tension finds expression in the materially flawed Copyright Amendment Bill with its possible impact on developing and publishing material for students. Claiming to promote ‘advancement of education and research’, the Bill threatens to lay waste to authors’ rights, to expropriate intellectual property, to devalue educational content and de-incentivise future creation. It endangers the sustainability of South Africa’s academic writing and publishing industry – an industry in the business of producing and investing in local content and making it available to South African students.
Currently, the Copyright Act (1978) allows copyrighted material to be copied for free in certain instances, for example, for illustrative purposes and for research or study. This approach to copyright exceptions is well-established in our law and chimes with international copyright conventions that limit exceptions to special cases where copyright holders’ interests are not unreasonably prejudiced.
The Bill introduces a copyright doctrine that is applied mainly in the US. This doctrine is an open-ended standard with a list of factors for consideration when assessing possible copyright infringements. However, transplanting this doctrine into South Africa introduces it into a different legal context with wider provisions and fewer sanctions than the US has. Exceptions which will allow for unremunerated and unpermitted use will almost put an end to applying copyright in educational institutions.
According to this ‘fair use’ doctrine, a copyright holder would have to approach the courts for recourse when an institution – such as a multinational tech company – copies, digitises, translates or reworks material without permission. The case would be judged according to the requirements of the infringer. Possible consequences for the tech company would be no worse than if they originally obtained permission and paid remuneration. Copyright holders would be burdened with costs and an uncertain outcome.
The exception clauses qualify authors’ moral right to be acknowledged by the phrase ‘as far as it is practicable’. This cavalier approach towards authorship is also manifest in a retrospective and non-waivable right to a royalty and a 25-year limitation on assignment, unduly limiting authors’ freedom to contract. The Bill’s overly broad educational exceptions could cast a long shadow and stifle the production of local academic content.
It is tempting to assume that copyright law only benefits copyright holders. Nothing could be further from the truth. Fair copyright protection benefits users and producers. This is especially true in educational publishing where publishing companies have a responsibility to create material of a high educational standard. In order to do this, their intellectual property must be protected and remunerated. It is unfortunate, then, that the Bill does less to protect copyright and copyright holders than the current Copyright Act. The Bill not only threatens the educational publishing industry and authors but will also have negative consequences for education and our country as a whole.
The Bill includes the introduction of an extremely loose exceptions clause, and contains specific exceptions for educational institutions. It will allow the reproduction of works without authorisation or remuneration to the rights holder under the auspice of ‘educational purposes’. There is every possibility that the Bill will encourage a disregard for copyright which will lead to widespread retrenchments and unemployment in the education publishing industry in both large and small businesses. Job losses will include thousands of freelance suppliers like editors, proofreaders, typesetters, printers and sales and marketing personnel.
Perhaps the most disturbing results of this collapse will be the erosion of innovation within the industry, and of the accuracy of materials available for schools and learners. Without an interest in creating up-to-date and educationally sound products, the risk is that outdated materials will be left in circulation.
Olga Wyngaard is the Contracts and Rights Manager at NB Publishers, Louis Gaigher is the Publisher at Van Schaik Publishers and Warren Kliphuis is the Marketing Director at Shuter & Shooter Publishers.