South Africa’s 40-year-old Copyright Act is heading for a long-awaited amendment, and just about everyone disagrees on the way forward.
In the first of a two-part investigation, Lloyd Gedye looks at the many concerns raised about the power of the bill in an era of click, copy, paste
When President Cyril Ramaphosa took to the podium in Parliament to deliver the 2018 state of the nation address and quoted from Hugh Masekela’s 2002 song Thuma Mina (Send Me), did he have permission from the Masekela estate to use the lyrics or did he violate Bra Hugh’s copyright?
It is an example worth considering because a number of advocates for a more liberal copyright regime in South Africa, based on the principle of “fair use”, have suggested that the country’s 40-year-old copyright law is so rigid that even our president could have fallen foul of it.
The process to update South Africa’s copyright law of 1978 began in 2011, and the Copyright Amendment Bill of 2017 is currently with Parliament.
The process has been hotly contested and is full of vocal interest groups. For the academics and librarians, it is about access to published papers.
For the archivists, it has to do with the right to make digital copies of decaying works.
For the visually challenged, it is about access to blind-friendly books, while for the musicians, it is about their song royalties.
During the process, a number of about-turns by the department of trade and industry (the dti) have further muddied the waters.
Just a few months ago, it looked like the dti was going to divide the copyright law reform process into two stages, relegating exemptions pursued by librarians, archivists, researchers, the education sector and people with disabilities to a second phase of regulation changes.
Lobbyists were up in arms after what has been a 40-year struggle to get change. It is clear that a lot is at stake and South Africa cannot afford to get this wrong.
The case of Thuma Mina
Thuma Mina is deeply rooted in South Africa’s choral tradition. Theology professor Tinyiko Maluleke has suggested that some versions are “as old as the earliest churches in Southern Africa”.
Masekela recorded his version for his 2002 album, Send Me, and, because it is a whole new version in law, film maker Ben Cashdan says Masekela’s estate would own the rights to his recording.
And, although Ramaphosa may have technically fallen foul of South Africa’s copyright law, it is a great example to illustrate exactly why the 1978 Copyright Act is so out of date, even if the president’s speech was not beamed live to a mass audience.
Cashdan is speaking as a member of ReCreate, a coalition of writers, artists, poets, filmmakers, photographers, video game developers and technology entrepreneurs that was formed to advocate a balanced Copyright Amendment Bill that includes modern creators’ rights.
In terms of our copyright law, every time you create a copy of a copyrighted work, you need permission from the rights holder, and there is usually a fee involved.
Cashdan says that if the Copyright Amendment Bill does include fair use, then a creator will not have to ask for permission.
They would fall foul of the law, however, if they substitute the original work in its market, like acts of piracy.
“Small amounts of someone’s work are always fair use,” he says. “We all live in a culture, we live with history. Our cultural history should be freely available to all of us to use, to create, to express, to comment or to make a livelihood from.”
Cashdan says if you take copyright too far, you end up supporting large vested interests in the publishing world.
He says that, by applying a non-flexible copyright law, you hand the right to decide if and how a work is accessed, sampled and commented on to these vested interests.
City Press spoke to many proponents of the adoption of fair use, and the one point they kept making is that unless the creator competes with the copyright holder in their market, fair use applies.
Which translates as: unless the president decides to hit the studio to record his own version of Masekela’s song, his use of Masekela’s lyrics will be deemed fair use if the current amendment bill becomes law.
The click, copy, paste era
However, the president is not the only one who may be falling foul of the law. Because in the digital world, copyright gets even more complicated.
Infractions are simple processes we do every day without thinking. Copyright law expert Graeme Gilfillan says that consumers walking around with devices such as iPhones in their hands have completely flipped the script.
“Click, copy, paste,” he says. “The reproduction right has been destroyed.”
How many times have you copied an image off a Google search, or posted your favourite YouTube-hosted music video on your Facebook profile?
The reproduction right, which is the right that protects the copying of copyrighted works, has, in effect, been made redundant and replaced with a share of revenue.
When you repost a photograph your mother took on Facebook without her permission, you just violated her copyright.
If you have developed a video game set in Johannesburg, and coded into the game’s landscape of the city is a digital representation of the Nelson Mandela Bridge, then your game is, technically, breaking the law.
The design of the bridge is copyrighted, and the right that protects video game developers in instances like this is not included in our 1978 law.
Sean Flynn, a law professor at American University in Washington, DC, has been in town lobbying about the amendment bill. He says his colleague describes fair use as the “special sauce” for innovation.
Flynn argues that while the West pushes developing nations not to adopt fair use, it allows it in its own markets.
Minister of Trade and Industry Rob Davies admits that during negotiations with the US over the African Growth and Opportunity Act, certain interest groups were concerned about the adoption of fair use in South Africa.
Dr Andrew Rens, who worked in South Africa for years as the Shuttleworth Foundation fellow on copyright, agrees that the US allows fair use within its borders to spur on innovation, but “doesn’t like it in other countries”. He says the fears of opponents to fair use are “illusory” and are not “entirely rational”.
Rens says copyright law is going to affect how South Africa opens up to, or takes part in, the digital economy.
A backwards-looking bill
Gilfillan, who represents many music clients, says the current amendment bill is “not fit for purpose” and its construct is “questionable”.
“How can we exclude data from the bill? It is insanity,” he says.
He argues that data is used to consume and purchase creative works, and that to not even define it in the Copyright Amendment Act doesn’t make sense.
Gilfillan argues that if the bill becomes law in its current form, the government is going to be placing South Africans in “digital and data slavery” because most of the money generated from creative works is leaving South Africa and is never coming back, as the digital world enables the works to be monetised outside of South Africa’s geographical borders.
For example, you purchase a local artist’s music on iTunes or stream their songs on Spotify in your home, but because of where the service providers are based, these artists’ intellectual property is outside South Africa’s borders.
“The digital world is a borderless world,” he says. “It’s all about the online contract.”
This is an argument City Press heard from many stakeholders.
“It is not copyright law that’s the problem, it is the bad contracts,” said one commentator.
Rens argues that the new bill is essentially “backward-looking” and a lot of people seem to have “hung their hat on fair use”.
The amendment bill, he says, does not engage enough with practices such as artificial intelligence, machine learning, data mining and the internet of things.
“In 10 years’ time, we may find that South Africa has a copyright law that doesn’t work for it.”
However, many interest groups are happy with parts of the bill.
It does include notable exceptions for the education and research sectors and disabled people, as well as for libraries, galleries, archives and museums.
Fixing an old school law
Tusi Fokane is another member of ReCreate and is also the former director of the Freedom of Expression Institute, which has been an active copyright lobbyist.
She says the current amendment has taken so long because the dti is trying to do too many things with one bill.
“Vested interests hold contrasting viewpoints and there appears to be no middle ground,” she says.
Another big lobby group is the Copyright Alliance, a coalition of organisations such as Samro, Capasso, Dalro, Risa et al, which represent most of the country’s music creators and publishers, as well as book authors and publishers.
They have argued that certain provisions in the bill will disadvantage the very creators it aims to protect.
Rens recalls that in the Stanford University Libraries he found a 1979 report on a multiday workshop convened by the South African government to talk about copyright regulations and exceptions. From the document it is clear that there was no consensus and that the 1978 act did not solve anything.
“The arguments sound exactly like the arguments that are going on today,” he says of what a fair copyright deal looks like. “No one got what they wanted.”
Rens argues that the 1978 act needed updating from 1979.
Davies says it became clear how outdated the 1978 Copyright Act was when the amendment bill went to Parliament and a number of issues popped up since the dti started the reform process, but the bill “cannot address all shortcomings”.
“We want to focus on a few things we can fix right now,” he says.
These focus areas, as he singles them out, are South Africa’s musicians, the blind community and the issue of fair use.
“This is not the last word, but we are doing something,” says Davies.
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