LETTER TO THE EDITOR

The Copyright Bill is fundamentally flawed and strips creatives of their rights

By Collen Dlamini 30 September 2019

Although the Copyright Amendment Bill was originally intended to benefit South African creatives, it will instead cut off their income streams. The losers will be local artists, writers and musicians. The winners will be the large, global tech companies who will gain free access to South African content.

The Copyright Amendment Bill has been sitting on President Cyril Ramaphosa’s desk since March 2019 awaiting his assent after both Houses of Parliament passed the bill. The President has every reason to be hesitant about signing the bill into law.

The core issue with the Copyright Amendment Bill is that it will amount to the expropriation of intellectual property (IP) without compensation. This will deal a hammer blow to the production of local content in our book stores, on our television screens and in our educational institutions.

Although the bill was originally intended to benefit South African creatives, it will instead cut off their income streams. The losers will be local artists, writers and musicians. The winners will be the large, global tech companies who will gain free access to South African content thanks to the bill’s extensive exceptions to copyright, especially under an expansive set of principles allowing free use of copyright materials called “fair use”.

No wonder opposition to the bill is mounting. As a result, the President finds himself stuck in a cul-de-sac with only one way out: to send the bill back to Parliament as he is duty-bound to do.

There are at least nine reasons why the President needs to send the bill back to the National Assembly for further deliberation:

1. The bill is unconstitutional

First of all, the Copyright Amendment Bill is legally and constitutionally flawed. The expropriation of IP without compensation introduced by 10 clauses of extensive copyright exceptions, including the “fair use” provision, is in breach of the constitutional guarantee of property rights. It is also questionable whether adequate public consultation was done on the bill, a serious procedural flaw that is itself enough to invalidate the bill.

2. The bill is not compatible with South Africa’s obligations under international treaties

Besides the bill’s unconstitutionality, most of its copyright exceptions are also inconsistent with South Africa’s international obligations under the TRIPS treaty that is the foundation of the country’s membership of the World Trade Organisation. They are also inconsistent with the WIPO (World Intellectual Property Organisation) Copyright Treaty, a treaty which, ironically, Parliament’s National Council of Provinces resolved that South Africa should accede to on the very same day that it passed the Copyright Amendment Bill.

3. South African authors have come out against the bill

Authors and playwrights Wilbur Smith, JM Coetzee, John Kani, Athol Fugard, Fred Khumalo, Gabeba Baderoon and renowned cartoonist Zapiro and many more signed a petition last year calling on Parliament not to pass the bill. They were joined by authors’ associations, booksellers, publishers, freelance workers, readers, literacy organisations, academics, copyright scholars and practitioners. There is a groundswell of opposition to the bill in literary circles.

4. South African musicians oppose the bill and have marched in protest against it

Earlier this year, artists banded together to create a song, Vikela Mina (Protect Me), featuring The Soil, Jimmy Nevis, Vicky Sampson, Arno Carstens and Zolani Mahola of Freshly Ground and many more.

In June, at this year’s annual South African Music Awards, Motswako rapper Khuli Chana and radio personality Twasa Seoke called on the Minister of Arts and Culture to encourage President Ramaphosa to reject the bill. South African musicians have been the loudest, most consistent opponents of the bill. These artists want the bill to be sent back to Parliament for critical review of the copyright exceptions.

Despite the bill being passed by Parliament, protest marches against the bill continue. In April, the Trade Union for Musicians of South Africa brought artists together to march to Cape Town Station where President Ramaphosa was expected to be. In August they joined forces with the Musicians Association of South Africa (MASA) to lead a demonstration in Johannesburg where they handed over a memorandum imploring President Ramaphosa not to sign the bill into law.

5. Legal experts have questioned the constitutionality of the bill

Both the South African Institute of Intellectual Property Law and the Law Society of South Africa have made submissions to the Department of Trade and Industry opposing the extension of unwarranted copyright exceptions at the expense of creators’ rights. All four members of a panel of experts in copyright law appointed by the National Assembly’s Portfolio Committee highlighted problems with the copyright exceptions as well as other deficiencies in the bill.

6. Government has not done a proper socio-economic impact assessment of the bill

The government is pushing this bill through, despite repeated warnings, without any real assessment of the socio-economic impact of the bill. An independent study commissioned by the industry showed devastating consequences for educational publishing, that would have a detrimental knock-on effect in other spheres of book production.

Government has the rules and resources in place to carry out this necessary research: the Department of Planning’s Socio-economic Impact Assessment System (SEIAS); the need for supporting opinions from the Departments of Justice and International Relations and Co-operation for accession to international treaties; and the Department of Sport Arts and Culture’s South African Cultural Observatory are there to provide economic statistics on the creative and cultural economy. Yet none of these have been used properly, if at all, in developing the bill. This failure of due diligence is another strike against its constitutionality.

7. Global firms say the bill will discourage creative sector investment in South Africa

Global firms and international trade associations have been consistent in saying that the bill’s provisions will weaken the South African internal and export markets for creative content. Last month, international trade associations representing authors, literary publishers, book publishers, music publishers, record labels, film producers and film studios jointly called on the President to send the bill back to Parliament, calling for a proper, sector-specific impact assessment and meaningful consultation with affected stakeholders, warning that the bill does not bring South African law into line with the international treaties on copyright.

8. South African exports are on the line – to the tune of R12-billion

In April 2019, the International Intellectual Property Alliance (IIPA) asked the US government to reconsider South Africa’s preferential trade access in the light of the Copyright Amendment Bill. The IIPA argues that the bill fails to provide adequate and effective protection of American copyrighted works and so South Africa will no longer meet the requirements of US Generalised System of Preferences. If the request is granted, South Africa could lose up to 16% of its total exports, costing the South African economy approximately R12-billion in lost revenue.

9. Not everybody in government agrees with the bill

In a Parliamentary Arts and Culture Committee meeting, Minister Nathi Mthethwa admitted that the President is in a tough spot with this bill. The solution, according to the minister, is to find an outcome that unifies the sector, and this can only come from the industry. And we agree. This is why we are pushing for the bill to be sent back to Parliament so that we can engage in a meaningful process to recast those aspects of the bill that will damage the creative economy and cost jobs.

If the President has any doubts about the constitutionality of the bill, he is obliged to return it to Parliament, and it is clear that there are many good reasons for him to do so.

The intellectual property of our artists, musicians and writers is something for which we have to fight. DM

Collen Dlamini is convenor of the Coalition for Effective Copyright in South Africa. The Coalition comprises a number of associations in the creative industry including writers, musicians, publishers and film associations.

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