Owen Dean writes that government's 'Use Fair' in the Copyright Amendment Bill allows any manner of unauthorised use of a work which meets certain criteria, which could cause problems down the line.
We have all been to fun fairs. A fun fair is a facility set up in a vacant space, usually of temporary duration, devoted to providing entertainment to those who frequent it. There are ferris wheels, merry go rounds, helter skelters, tunnels of horrors, dodgem cars, roller coasters and the like. There are also stalls of one form or another where prizes can be won, such as coconut shies where wooden balls are thrown at coconuts, or other targets like effigies of people, with a view to knocking them off their pedestals. Handouts of free gifts are plentiful. 'Roll up here; all the fun of the fair!' is the cry.
When the fair has run its course, everything is packed up and gone, usually leaving behind something of a wasteland. The grass has been trampled flat and gouged up and by and large the place has been trashed. The fun is over.
The Department of Trade and Industry and the Parliamentary Trade and Industries Portfolio Committee, which will collectively be referred to as the 'Fairmaster', has created a special kind of fair. This has been done in a Copyright Amendment Bill, which, having been injudiciously passed by Parliament, has been rescinded and is now under review. The fair is called the 'Use Fair'.
The Use Fair is causing fun and games. It is characterised in particular by two features. There is a coconut shy where the public can hurl objects at effigies of authors with a view to knocking them down, to the glee of the Fairmaster, and there is the donation to the public of free copies of every single book, artwork, music record, movie, computer program, and generally every creative work ever made anywhere in the world, together with the right to use these items freely. These bounteous blessings bestowed on the public at the Use Fair are appositely called 'Fair Use'. Such amazing generosity of the part of the Fairmaster is almost too good to be true! It is indeed, because there is a catch.
When the current supply of gifts at the Use Fair has been exhausted there will be no more forthcoming. Writers, composers, artists, record producers, film makers, publishers, computer programmers and creative people generally who have been belittled and whose works are given away gratuitously with such largesse by the Fairmaster will have been deprived of their earning capacity and will have little incentive to produce new works. The supply of gifts at the Use Fair will simply dry up. The public which accepts these gifts must me aware that this bounty has a short term benefit, but when the fair moves on and the fun is over, it will leave behind a wasteland devoid of creativity and the production of new works. The benefit of the bounty must be weighed up against the cost. Short term gain at the expense of future prosperity is seldom beneficial in the long run, and so it is with Fair Use. Fair Use is not in the public interest! The Fairmaster must be held in check in its designs to beguile the public and sell them short.
In copyright law 'Fair Use' denotes an American doctrine that entails exceptions being made to copyright owner exclusive rights according largely to the discretion or whim of a judge hearing an infringement case. Even in its home environment this libertarian flexible form of excusing copyright infringement on an ad hoc basis is dubious, but it is at least subject to various domestic checks and balances. However, when transplanted into South African law, which does not contain the checks and balances, it has the propensity to run wild like a noxious weed and choke the garden. It should not be allowed to take root. The Fairmaster is, however, consciously planting this invasive weed in our law by means of the Copyright Amendment Bill.
The Fairmaster’s version of Fair Use allows any manner of unauthorised use (e.g. reproduction, adaptation, publication) of a work which meets certain criteria. In effect, as long as the unauthorised use of the work is not of a commercial nature or is for educational purposes it passes muster and is free. This means, for instance, that a text book can be copied and distributed to each student in a class numbering a hundred or more free of charge. Too bad for the publisher and author of the text book! They are, after all, wealthy and do not need the money generated by sales of the book.
In addition to dishing out Fair Use of works with gay abandon, the Fairmaster also has another stock of gifts in its Bill. It allows the copyright owner’s exclusive rights to be abrogated in circumstances which are considered to be even beyond the scope of Fair Use. Copyright is considered to be fair game. For example, without requiring that the manner of unauthorised use should be fair, it allows an individual to copy an entire work for his/her personal use or for purposes which are not commercial. This means that each member of a book, art, or music appreciation society can make a complete copy of the single work purchased by the society, notwithstanding the fact that there may be hundreds of members. The society itself could provide the copies provided it does not charge for them.
Out of step
Apart from the inequity and prejudice occasioned to creatives, the Fairmaster is acting in contravention of South Africa’s international treaty obligations which only allow exemptions from copyright to be made in certain exceptional cases that are not in conflict with the normal exploitation of a work and which are not unreasonably prejudicial to the copyright owner. The wholesale free copying of works championed by the Fairmaster does not meet this so-called 'Three Step Test'.
The Fairmaster should play fair and legitimate. It should get the balance between authors and the public interest in equilibrium and make fair use of its legislative powers. That, after all, is its job.
- Owen Dean is an Emeritus Professor at the University of Stellenbosch, a specialist copyright attorney and author of 'Dean: An introduction to copyright law'.
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