The Copyright Amendment Bill, poorly conceptualised and drafted, and not backed by policy, has pitted authors and book publishers against educational institutions – as if copyright law is bound to favour one at the expense of the other – instead of weighing the rights of copyright owners against the interests of society and creating a balance between them.
Two parliamentary portfolio committees have grappled with the bill’s failings.
It was passed in 2018, with heartfelt speeches from members of Parliament about saving poets from dying in poverty and opening wide the doors of education, but, in reality, it does neither.
Let me explain.
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In 1998, a group of musicians petitioned the president to look into the unfair copyright practices in the music industry. As a result, an investigative commission, the Copyright Review Commission, was set up.
The commission’s recommendations formed the backbone of an amendment bill to, in the words of the bill itself, make sweeping changes to copyright law to “ensure that artists do not die as paupers due to ineffective protection”.
The department of trade, industry and competition was then able to declare that it was making the law to boost the income of creatives.
Another ambition of the bill was to “allow reasonable access to education” because, under the current Copyright Act, “educators [are] hampered in carrying out their duties”.
You may well ask what that is supposed to mean, but an acrimonious discourse has developed and it has come to mean that unless the law is changed to allow schools and universities to photocopy textbooks, pupils and students will be denied an education.
If that seems vastly illogical and grossly unfair, that’s because it is indeed illogical and unfair, as well as untrue.
Authors of the school and academic textbooks and scholarly works don’t earn salaries as teachers and university lecturers do.
For an income, they depend on royalties derived from the sale of their works.
The provision of schoolbooks is the obligation of the state.
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But if national and provincial education departments choose, under a new copyright regime, not to supply books but to photocopy them, or take extracts from them, then the authors will have to stop writing and do something else to earn a living.
The textbook market will collapse, publishers will close and South Africa will have to rely on imports.
In higher education, countries around the world – including South Africa – subscribe to licensing, whereby extracts from books the students can’t afford to (or don’t need to) buy are collated under licence into “course packs”.
These, too, will be “free” under the new law. The legal doctrine under which content becomes “free” for education is called fair use.
(In all fairness, fair use does not mean “use that is fair” – it’s a broad exception to copyright under certain conditions such as education.)
I have focused narrowly on one negative consequence for authors.
Of course, the ripple effects go much further and the local book publishing industry faces an eventual decline when the book is devalued.
There will be many job losses. Knowledge production and the writing and publishing of scholarly works will take a step backwards.
South Africa will become more reliant on imported knowledge – from the global north and even from African countries that, unlike ours, are taking steps to protect the intellectual property they produce and to nurture and respect those who produce it.
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The bill lacks a legitimate legislative background: no economic or social impact assessment to forecast its consequences in the future; no copyright policy to guide its ethos; a stop-and-start, drawn-out but biased process through Parliament; and the president’s doubts about its constitutionality.
From the authors’ perspective, it seems as if we are teetering on the edge of a precipice, and we have to ask: What are we worth?
Are we, as we thought, one of the driving forces in an increasingly literate and creative society, or are we merely providers of free content?
We believe that authors, the producers of knowledge, have a major role to play in cultural and educational development. And we call on Parliament to acknowledge us and to reject the Copyright Amendment Bill.
Seeber is an author, publisher and editor, and the founder of the Academic and Non-Fiction Authors’ Association of SA.