Copyright reform in South Africa is decades overdue and extremely urgent, especially since the birth of the Copyright Amendment Bill in 2009, ie 14 years ago. That is how long ago the Department of Trade and Industry (DTI) started engaging in studies for copyright reform.

The first draft of the bill was published for public comment in July 2015, and various workshops and a multistakeholder conference were held to give stakeholders the opportunity to present their views and recommendations on the bill.  

The bill was submitted to the Portfolio Committee on Trade and Industry in 2017, where it underwent several revisions, with input from intellectual property experts and the parliamentary legal team. Opinions from senior legal experts were provided and stakeholders were afforded many opportunities to make written submissions and present at public hearings. 

The bill was passed for the first time by both Houses of Parliament on 28 March 2019, and sent to the President for assent. 

Unfortunately, the President did not act on the bill for about 15 months. This resulted in Blind SA taking the President to the Constitutional Court to force him to act in terms of Section 79(1) of the Constitution. Around the same time, the US Trade Representative (USTR) and the European Union (EU) were unduly pressuring the President to stop the bill from proceeding through Parliament. 

As a result, the President sent the bill back to Parliament on 16 June 2020 for review on the basis that some clauses might not meet constitutional muster.  

Again, after more written submissions, public hearings and more revisions in 2021 and 2022, the bill was passed by the National Assembly on 1 September 2022, and sent to the National Council of Provinces for concurrence. As the bill was retagged as a Section 76 bill in 2021, it was also referred to the Provincial Legislatures for their attention and votes during the first half of 2023.  

Urgently needed

This long drawn-out process has delayed a bill that is urgently needed in South Africa. Since 2009, much has been invested in this copyright reform process, e.g. advertisements and the organisation of and accommodation of public hearings; perusal of many submissions; court actions, human resources; time and effort by so many; opinions and recommendations by senior legal experts for various revisions; and perusal and deliberation on the many contributions and oral inputs submitted by stakeholders. 

The bill has helpful provisions to improve access to information for all South Africans and to provide helpful benefits for authors and creators. It also has exceptions to improve access to and sharing of resources for teaching and learning, as well as for research and academic activities. It will empower libraries and other information entities to carry out their statutory mandates, as well as provide dignity and access to information in accessible formats to people with disabilities.  

Every person in South Africa is a user and producer of information, especially in the digital space, and will benefit from the useful limitations and exceptions in the bill. 

The Copyright Amendment Bill, in partnership with the Performers’ Protection Amendment Bill, seeks to achieve a balance between copyright ownership and copyright access. The current apartheid-era Copyright Act of 1978, was declared unconstitutional by the Constitutional Court in 2022, for its discrimination against visually impaired persons, a case led by BlindSA. 

The current act is also arguably unconstitutional for discriminating against poor students and teachers, by not enabling access to education outside of commercial means, and against museums and galleries which are not addressed at all in the current law. This conflict with our Constitution is a real travesty for a country as unequal and economically challenged as South Africa. 

The current act has underpinned decades of economic strife for creatives in the entertainment industries. Currently, there is no legal mandate for actors to be paid royalties, or for music collecting societies to be regulated, or recourse for artists who unwittingly signed their rights away in unfair contracts in the past and are unable to earn a reasonable income from their work, or small film-makers who are tied into restrictive contracts with broadcasters or large organisations that refuse to renegotiate or cancel those unfair contracts.   

The Copyright Reform Commission by Judge Farlam highlighted the maladministration and failure to pay fair royalties to creators by collecting societies.   

The two bills addressed these issues head on, and were intentionally designed to uplift creatives, while also ensuring communities have fair access to information and education. These interests are not mutually exclusive. They can be balanced and the bills do a great job of doing that. 

In this process, the bills do however shift power away from unregulated intermediaries, as they are legally required to be registered and become more transparent and accountable to the creators of copyright and society as a whole, ie users of copyright. Publishers who unfairly fix prices to increase profits from a small minority of buyers, or film producers that refuse to pay local actors royalties for films they sell all over the world, will be legally accountable to pay royalties. 

Intermediaries and fair use

Many intermediaries have been boldly claiming to represent the interests of artists, while their practices and self-interests reflect their selfish agendas rather than concern for the artists they claim to represent. Conversations about the bills, especially the Copyright Amendment Bill, are filled with disinformation from said intermediaries and extreme efforts are being undertaken to oppose and delay this legislation that is intended to uplift creatives and South African society.  

There is also a great deal of misunderstanding about “fair use”, alternatively, a blatant attempt to mislead the public about it in the media.

Some people only read the media and that is the only information they receive about the bill.  

The long-standing strategy of fear-mongering around Fair Use since 2017 by opponents of the bill is especially revealing, as it comes with what can only be understood as a largely intentional focus on disinformation from those industry representatives claiming to be “in the know”, or manipulating the truth to back up their own interests. 

Fair Use is used widely around the world, in name and in theory. 

Many of those opposing the bill already benefit from Fair Use in their own country, ie the US, yet they oppose the same benefits for South Africa, a developing country. Fair Use in South Africa’s copyright law will allow citizens to access works, here and abroad, that countries that have Fair Use have been able to do for a very long time. The wording of the Fair Use clause may be more descriptive and provide more clarity to assist users, but it is no different from the Fair Use provisions in countries that have Fair Use in their copyright law.  

It has been argued by some stakeholders that the bill fails to provide for statutory damages like the US copyright law. This is incorrect, as the Copyright Act has provided for statutory damages in Section 24(3) since 1978. 

The fundamental difference between Fair Use and Fair Dealing is the open exceptions that allow for unpredicted cases to be tested against the four-step fairness test. Which, among other tests, says that copies cannot replace the original in the marketplace or compete with them. That alone debunks the false arguments that Fair Use is a “free for all” or “carte blanche” for piracy and copying whole textbooks to avoid having to purchase the originals.  

The four factors of Fair Use provide the framework and clarity for use and re-use of others’ works, which Fair Dealing does not. Fair Use has been successful in the US since 1976 and in about 11 other countries too.

  
Nigeria has just adopted the principles of Fair Use by including the words “such as” and the four factors of fair use in their new act, although they still call it Fair Dealing. Nigeria has a flourishing creative industry, and the support for these provisions clearly shows that the opening up of Fair Dealing by adopting the 4 Fair Use factors is seen to be a positive step for its publishing, film, music and other creative industries. 

There is no evidence anywhere that shows that creative industries have crashed or suffered catastrophic damage in countries that have adopted Fair Use in copyright law.  Jobs and livelihoods were not threatened or lost. Creative industries did not close down. On the contrary, their creative industries are flourishing, as are creators and authors who, themselves, have more flexibility, and better access to information and creative opportunities in the digital space. 

There are many best practices and guidelines for various stakeholders to assist in the interpretation and implementation of Fair Use, and to avoid the need for litigation.  Educational programmes and training on Fair Use can always be developed around the country to assist users when using copyright works, so compliance becomes the goal, not infringement.    

Many of the other clauses in the Copyright Amendment Bill have come from copyright laws of other countries, including the US, UK, EU, Singapore, Germany, etc. so why is there such strong opposition, mostly from industries and collecting societies, to South Africans having better access to information, improved benefits for authors, creators, education and research, libraries, archives, museums and galleries, and for people with disabilities to be granted access through accessible formats?  

Many South African musicians and other creators go to the US for better opportunities for their careers. They benefit from Fair Use there, so why is Fair Use seen to be such a ‘damaging tool’ for creators in South Africa?

We accept there may be some urgent and crucial edits or amendments necessary to improve both above-mentioned bills before they proceed further, but resolution of these issues and passing of the bills must happen no later than the end of 2023. If postponed any further, everyone stands to lose, as attention shifts to the national elections and the uncertainty of our country’s future political landscape. 

The  Constitution and Bill of Rights must drive this reform process, and do so urgently. 

Many concerns can also be dealt with in the Regulations that will follow.  

Care must be taken not to ‘throw the baby out with the bath water’. South Africa urgently needs a more progressive and balanced Copyright Act that will serve all South Africans, whether they are users, producers, publishers, creators, inventors, innovators, or custodians of copyright works. There has been massive investment of time, human resources and much effort, as well as financial and other resources by the government, Parliament, provincial legislatures, legal experts and the public since the reform process commenced in 2009.  

The merits and benefits of Fair Use for South Africa have been well-documented and highlighted in this long process, yet some stakeholders selfishly drive a strategy of disinformation to discredit its benefits.  Their calls for the bill, and its sister bill, the Performers’ Protection Bill, to be sent back to the drawing board, or to remove Fair Use or other progressive clauses at this stage, is arguably an intentional and regressive effort to delay or halt progress in a country that sorely needs it.  

Reason must prevail.  South Africa needs a progressive and more balanced copyright law.  The time is now! DM/MC   

Denise Nicholson is the founder of Scholarly Horizons and Kyla Mc Nulty is convenor of ReCreate.