Copyright issues have veered sharply off course over the past seven years, starting with Cabinet’s approval of the Copyright Amendment Bill in 2016. As has been widely reported in the news media, especially Daily Maverick in the form of articles by Tim Cohen and copyright lawyer Owen Dean, the outcome is a far cry from the initial good intentions of the reform to protect creators of copyright works. 

The Bill’s resulting procedural material irregularities cannot now be corrected.  

The Coalition for Effective Copyright alleges, for example, that certain officials from the Department of Trade, Industry and Competition (DTIC) have been misleading legislators and the public, seemingly with the tacit support of the ministers concerned.  

Despite claims to the contrary, a socioeconomic impact assessment was never done. And, research supposedly supporting the Bill’s expropriative copyright exceptions – including the American doctrine of “fair use” – does not exist.

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It has for some time been clear that the process towards the original goals has been appropriated to serve other ends.

The Bill’s initial laudable intentions were replaced by a demand for “user rights”, manifested by copyright exceptions and a “fair use” provision. These allow free content and disempower creators and authors in a way that is diametrically opposed to the Cultural and Creative Industries Masterplan accepted by Cabinet last year.  

Where the masterplan sees tradable value in creative intellectual property in terms of national growth, the Bill wants the proceeds of intellectual and creative labour to be rendered free to users in government and the educational sector, with a collateral benefit to Big Tech.

The Bill weakens protections for published materials used for educational purposes. Educational publishing is the backbone of the publishing industry in South Africa. The loss of copyright in this huge reading sector will cause significant industry contraction, not only in textbook publication but in other sectors, too, from an inevitable knock-on effect. 

The Big Tech sector, mostly foreign, stands ready to trawl for and monetise local creative and scholarly work, and then render these products “free” to “users” (which include themselves). This reversal in intentions underpins the Bill that is now winding its way through the National Council of Provinces.

This unconstitutional legislation is being imposed regardless of the cost to local creative industries, or education. An international bridgehead for Big Tech will turn South African creators into virtual slaves whose labour will be denied its due value.  

In effect, the Bill will legalise the theft of original work for reselling by operators who paid nothing for it, yet who monetise access to it. That is the basic contradiction that the pro-Bill lobby fails to engage.  

Where Robin Hood stole from the rich to give to the poor, the Copyright Amendment Bill will enable the rich to steal from anyone who creates anything. The warnings are in the thousands of pages submitted by creative industries to Parliament’s portfolio and select committees.   

Why is Parliament not listening? That’s the key question we are all asking. DM

The issues are extraordinarily complex and readers are referred to the following open-access articles: 

Short essays: Dean, O “Confessions of a Struggling Author: New copyright laws will kill us all”, Anfasa Magazine, 2023, 7(1).

For more of Dean’s essays: Owen Dean | CIP – The Anton Mostert Chair of Intellectual Property

Myburgh, A, (2019). Fringe views replace universities’ position on the Copyright Amendment Bill – The Mail & Guardian (mg.co.za)

DTIC misrepresented Copyright Amendment Bill process to Parliament and public | DA WCPP Newsroom (wordpress.com)

For a detailed critique of the Bill: Myburgh AF; Blignaut H; Griffiths W; Hollis S; Le Roux S; Pretorius TL; Rengecas T; Salmon O; Steyn C. (2023) Copyright Reform of Reframe?  Cape Town Juta. For a free Flipbook download link, click here 

For shorter debates by scholars: Copyright Amendment Bill Workshop Proceedings Report

For the anticipated effects on the national research economy, read: Tomaselli, K. (2022). The 2022 Copyright Amendment Bill: Implications for the South African universities’ research economy. Communicare: Journal for Communication Studies in Africa, 41(2), 14–33.

Beiter, KD. (2022). A reply to Keyan Tomaselli’s “The 2022 Copyright Amendment Bill: Implications for the South African universities’ research economy”. Communicare, 41(2), 7–11.

Karjiker, S. (2022). A joinder to Keyan Tomaselli’s “The 2022 Copyright Amendment Bill: Implications for the South African universities’ research economy”. Communicare, 41(2), 4–6. 

Wafawarowa, B. (2022). Comments on Keyan Tomaselli’s “The 2022 Copyright Amendment Bill: Implications for the South African universities’ research economy”. Communicare, 41(2), 12–13.