MAVERICK CITIZEN

Copyright Act ‘discriminatory and ‘exclusionary’ and reform is urgent, say civil society organisations

By Zukiswa Pikoli 6 October 2020

A learner at the Christiana School for the Blind and Partially Sighted in North West. (Photo by Gallo Images / Foto24 / Bongiwe Gumede)

A group of civil society organisations and activists have written to Parliament, the Department of Trade and Industry, Economic Development, Tourism, Small Business Development and Employment and Labour, regarding the recently amended Copyright Bill.

See the Copyright Amendment Bill here.

The group says that in its current format, the copyright regime is “discriminatory” and “exclusionary” and that it infringes the rights of pupils, teachers, people with disabilities, artists, musicians, and writers. They are lobbying for urgent reforms that would be in line with our Constitution’s Bill of Rights as well as the international human rights agreements that South Africa has ratified.

The organisations point out that the apartheid-era Copyright Act 1978 prioritises business interests over human rights obligations and that a further delay on the Copyright Amendment Bill would be a betrayal of a 14-year process.

Below we publish the letter from the group:

5 October 2020

Dear Members of the Portfolio Committee on Trade and Industry (National Assembly) and Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour (National Council of Provinces),

BILL OF RIGHTS IMPLICATIONS OF RECENT COPYRIGHT REFORMS

We write because we believe copyright reforms in South Africa are urgent.

Our current copyright regime is exclusionary and discriminatory. Reforms are absolutely necessary in order to bring our copyright law in line with the Constitution and the Bill of Rights. The impacts of Covid-19 have made this need even more pressing. We appeal to you to effect these reforms without further delay.

In this letter we will highlight:

(1) why these reforms are necessary and urgent;

(2) slowness of reform will infringe the rights of blind and visually impaired persons and prolong ongoing unequal access to education; and

(3) the ways in which delay in passing the Bill will ensure that these rights remain unfulfilled.

REFORM IS NECESSARY AND URGENT

  • Pupils, students, librarians, teachers, and people with visual, print, and learning disabilities all depend on you to do what is right. We have been waiting on a promise that was made 14 years ago, when copyright reforms were first placed on Parliament’s agenda. Please do not let our rights be deferred again at the behest of corporate interests.
  • The apartheid era Copyright Act 98 of 1978 is unconstitutional to the following extent:
    • It is this Act that discriminates against people with disabilities, not the amendments proposed in the Copyright Amendment Bill. The proposed amendments are essential for remedying this discrimination.
    • The regime established by the current Act and its Regulations fails to ensure that all pupils can access textbooks, guaranteed to them by the right to education in the Bill of Rights. The proposed amendments are necessary so that pupils are not deprived of access to learning materials because they are unaffordable.
  • We trust that after years of consultation, the Minister for Trade and Industry, the Parliamentary legal advisor, and most of the Committees’ members are fully aware of this and are committed to bringing this apartheid-era law in line with constitutional commitments to ensure equal access to education for all.
  • South Africa has ratified international human rights agreements and treaties like the International Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the Rights of Persons with Disabilities. The human rights obligations that stem from these treaties require precisely the kind of changes envisaged in the current version of the Bill, as does Sustainable Development Goal 4 which aims to “ensure inclusive and equitable quality education and promote lifelong learning opportunities for all” by 2030. The proposed changes contained in the Bill are an essential step in giving effect to South Africa’s international human rights obligations, as well as Bill of Rights obligations which have been neglected in the discourse.

DELAYS WILL INFRINGE RIGHTS AND IMPACT LIVES

  • Ongoing infringements of the rights of blind people:
    • Right now, blind people in South Africa do not have the same rights as the blind in India, the United States or Nigeria, when it comes to accessing books of any kind. This means severely limited access to education and consequently inhibited participation in the social and cultural life of our society.
    • Those with visual and print disabilities have, for a very long time, been deprived of equal access to textbooks and other learning materials because the law was not framed to enable appropriate access. Internationally, this has been recognised as a “book famine” by the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, 2013. This treaty obliges states parties (which include India, US, Nigeria, Kenya, Singapore and over 65 other countries) to correct this historical deprivation. South Africa has not ratified this treaty, leaving South Africans behind.
    • The current Act does not contain provisions to reproduce, distribute and make available accessible formats of published works for persons with disabilities. Therefore, the law fails to protect the rights to equality, non-discrimination, and the right to dignity of blind and visually impaired people – including blind learners whose right to education is being denied.
    • You have the power to fix this. But the longer it takes, the more blind South Africans will be left behind.
  • Ongoing unequal access to education
    • Pupils, students, teachers and librarians all depend heavily on accessing written learning materials to ensure effective and equal learning opportunities.
    • Right now access to education remains deeply unequal in South Africa, affecting most severely the poorest and most vulnerable. Those living in poverty cannot afford textbooks at the market rate; those living with disabilities cannot access textbooks that are not in accessible formats.
    • The regime established by the current Act and its Regulations fails to ensure that all pupils can access textbooks and other materials essential to their learning, guaranteed to them by the right to education in the Bill of Rights. The regime imposes strict limitations on libraries that disproportionately affect students relying on these institutions for learning materials. The Bill provides a balanced approach toward fixing this. The proposed amendments – which allow for, amongst other things, the reproduction of work under copyright for educational and academic purposes; the creation of course packs of extracts of materials under copyright; the uploading of educational materials for virtual learning – are necessary so that pupils are not deprived of access to learning materials because they are unaffordable or otherwise inaccessible.
    • However, industry and copyright lobby groups have resisted these changes, in favour of business interests, to the detriment of enabling poor, vulnerable and disadvantaged pupils and students across all levels of education full participation in society.
    • The latter goal is Parliament’s Constitutional responsibility. The longer reforms are delayed, the longer the inequality continues, and the longer these constitutional commitments continue to be breached.

FURTHER DELAYS WILL PERPETUATE RIGHTS INFRINGEMENTS

  • A number of the issues currently under consideration by both committees could serve to substantially prolong the passage of this Bill. For as long as the Bill is not passed, rights will continue to be infringed. Excessive delay will lead to further injustice.
  • An example is the question of the appropriate procedure for the Bill’s passage – its tagging in terms of either section 75 or 76 of the Constitution. The Bill has currently been tagged as a section 75 Bill. The most recent amendment to the Act, prior to the Bill, was uncontroversially tagged under section 75. The adjustment of the current section 75 tag has the potential to lead to an extremely drawn-out process for the Bill’s passage, while the rights to education, dignity and equality of many South Africans will continue to be infringed.
  • In addition, we ask that you do not waste time on re-opening consultation on issues that have already been thoroughly ventilated in multiple rounds of public consultation. These issues include discussions on fair use and the referred provisions on exceptions and limitations in the Bill. As is clear from the consultations thus far, most of you, and we, know that the copyright exceptions for education, libraries and persons with disabilities are urgently needed and are in fact required by the Constitution. Reopening these discussions would be a waste of time and risk the process being hijacked by industry interests to undo the excellent work done previously.
  • If the Committees are of the view that they are unable to avoid engaging in further public consultation on the Bill, we urge you to minimise delays by ensuring a strongly steered and managed consultation process, since every month of delay comes at the cost of a significant percentage of the quality of education of South Africa’s youth.
  • The Covid-19 pandemic has thrown many of South Africa’s existing inequalities into sharp relief. Pupils and teachers, including those at schools for the blind, have been forced to make the best of a terrible situation, and those with access to online facilities have had to continue with learning and teaching online. Had the Bill been passed by the time Covid-19 reached our shores, access to learning materials would have been made immeasurably easier for these pupils and teachers. This only highlights the urgency with which it is necessary to ensure this Bill is passed.

In summary, the Committees and the Department of Trade, Industry and Competition have done extensive work on these issues in recent years, and have provided multiple opportunities for public consultation. This consultation has directly fed into the drafting and redrafting of the Bill. Through this process you have produced an excellent Bill – a Bill that has given us hope for a fairer, more just and more equal future for all South Africans.

We appeal to you to stand firm against a well-resourced industry lobby acting solely in their own interests that has shown they will do anything to delay or derail the Bill. We believe that their push to retag the Bill, for instance, has little to do with any real legal requirements, and much to do with delaying the process and creating opportunities to derail the Bill’s passage. We believe that it is possible for the Committees to respectfully address the President’s concerns while also standing firm against industry pressure.

And finally, we stress again that, for us, this is urgent. Every day that copyright reforms are delayed means another day that the rights of pupils, teachers, persons with disabilities, artists, musicians, and writers are infringed upon by outdated and discriminatory copyright laws.

 

Endorsed by:

Prof. Ann Skelton, Unesco Chair on Education Law in Africa, University of Pretoria

Prof. Moeketsi Letseka, Unesco Chair on Open Distance Learning, University of South Africa (Unisa)

Prof. JAK Olivier, Unesco Chair on Multimodal Learning and Open Educational Resources, North-West University

Justice Zak Yacoob, retired Justice of the Constitutional Court of South Africa

Prof. Jonathan Klaaren, Professor, University of the Witwatersrand

Sanya Samtani, Doctoral Researcher, Graduate Research Resident at Bonavero Institute of Human Rights, University of Oxford

Marcus Low, Editor, Spotlight

Ntshavheni Netshituni, President of the South African Braille Authority

Dr. Andrew Rens, Senior Research Fellow, Research ICT Africa

Prof. Sandra Fredman, Professor of Law and Director of the Oxford Human Rights Hub, University of Oxford

Cathy Donaldson, President BlindSA

Dr. Klaus D. Beiter, Associate Prof., Faculty of Law (International Human Rights and IP Law), North-West University

Makhosazana Mkhatshwa, Research Officer, Treatment Action Campaign

Dr. Tobias Schonwetter, Associate Prof. & Director of IP Unit (Faculty of Law), University of Cape Town

Christo de Klerk, Exco member of Blind SA: Chairperson of its Committee on Accessible Publications and Equipment/Assistive Devices

Cameron McConnachie, Attorney, Legal Resources Centre

André Steyn, Chairperson of Legal and Constitution Committee Blind SA

Gino Fransman, Open Education Influencers (Project Leader), Nelson Mandela University

Nurina Ally, Lecturer, Department of Public Law, University of Cape Town

Cyprian Bheki Khawula, Chairperson of eThekwini Disability Forum 

Yana van Leeve, Equal Education National Council member

Paul G. West, South African Chapter of Creative Commons

Rynhardt Kruger, Blind Academic

Denise Nicholson, Specialist Copyright Librarian

Godfrey Zihlwele, BlindSA

Jan Kleinhans, BlindSA

Jack Devnarain, South African Guild of Actors

Kyla Jade, South African History Online, Researcher

Tebogo Koboyankwe, Treatment Action Campaign

Sibongile Hlatshwayo, Treatment Action Campaign

Tumelo, Treatment Action Campaign

Pamella, Treatment Action Campaign

Willem Venter

Mrs JM Spalletta

Nosisa Pheelwane

Marietjie Coetzee DM/MC

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