On Friday 17 March 2023, Izak de Vries submitted an oral submission opposing the current Copyright Amendment Bill at a sitting of the Eastern Cape Provincial Legislature’s portfolio committee on Economic Development, Environmental Affairs and Tourism. This is a copy of his speech. It has also been submitted in writing to the committee coordinator.
...
I speak to you, madam, from the mind, but also from the stomach.
...
Chairperson
Thank you for the opportunity.
Introducing PEN Afrikaans
May I briefly introduce PEN Afrikaans, on whose behalf I am making this submission?
PEN Afrikaans is an association of authors, journalists and publishers affiliated to PEN International, thus representing our members in an international context. PEN International is the world’s leading association of writers. We represent authors who write trade publications (fiction, nonfiction and books for children and young adults), educational works like school textbooks, as well as academic and scholarly publications.
PEN International is a non-political organisation which holds Special Consultative Status at the UN and Associate Status at UNESCO. PEN International is aimed at promoting literature and defending freedom of expression around the world. PEN Afrikaans subscribes to these goals, and we are geared towards lobbying for the rights of authors, journalists and publishers if and where necessary.
I am here on behalf of PEN Afrikaans, but I am also an author.
I am a father, as well. And this is important, because many authors, like me, augment our daily income with royalties earned from the sales of works. I speak to you, madam, from the mind, but also from the stomach.
Our position on the Bill
So, what is PEN Afrikaans’s position on the Bill?
We do support an update to the Copyright Act, but we cannot support the Copyright Amendment Bill in its current form. As per the proposed Copyright Amendment Bill, Section 12 of the principal Act will be repealed and replaced with the provisions in the Bill.
We are concerned that the current Copyright Amendment Bill goes too far in weakening copyright protection, by introducing an overreaching “fair use” principle in Section 12A, as well as other specific copyright exceptions which we submit are too broad. The one proposed copyright exception that is particularly worrying to us and our members, is the exception for educational purposes contained in Section 12D.
“Fair use” versus “fair dealing” in Section 12A
Our current copyright law, as it stands, does deal with certain exclusions, according to a system of fair dealing.
Fair dealing is an approach to copyright exceptions and limitations which works with a closed list of permitted uses and contexts within which obtaining the permission of the copyright owner would not be necessary if the dealing with the work was fair. Currently, our fair dealing exceptions are listed in Section 12(i) of the Copyright Act: it permits fair dealing for the purposes of research, criticism and review, and reporting on current events. These purposes are similar to points 12A i, ii and iii as they appear in the Copyright Amendment Bill, but they have become a fraction of what a “fair use” system allows.
Chairperson, “fair use”, which is now being introduced into our copyright law in the Copyright Amendment Bill, is not the same as fair dealing; and the principle of “fair use” is not the same as the closed, defined list in our current legislation. As defined in the Copyright Amendment Bill, “fair use” is an open-ended approach to the unauthorised use of copyright work, which relies on a set of factors to determine whether a particular use can be considered fair. It has a broad scope and indeterminate application. This is evident in the language in the Bill. Section 12A contains the words “for purposes such as the following”. This suggests that the list provided contains mere examples of permitted uses, and that it is not at all an exhaustive list.
As a doctrine, “fair use” relies heavily on courts to judge whether the use is fair or not. The question of “fair use” is always case-specific. Each case must be decided on the facts.
To create a system in which an author’s work may be used without permission or compensation for a wide (and arguably limitless) range of purposes, places the burden on the author to challenge such use if they feel it has infringed their rights. Chairperson, writers, like me, simply do not have the means to institute court proceedings to challenge every unauthorised use of our work.
We also contend that 12A is not in line with the three-step test set out in the Berne Convention, of which South Africa is a signatory, which says that copyright exceptions and limitations must be confined to “certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”
Fair use could lead to job losses
We are concerned that the decision to include this far-reaching addition to our law was not based on any proper socio-economic impact assessment. A regulatory impact assessment promised by government in 2015 never materialised.
The Publishers Association of South Africa (PASA) asked the firm PwC to estimate the economic impact of the Bill’s fair use provisions and exceptions for education. PwC estimated that the bill will lead to a 33% reduction in book sales, with 30% of the industry losing their jobs.[1]
We implore the legislature to reconsider the entire clause 12A and 12D until a proper socio-economic impact assessment has been done. We are legitimately concerned that fair use will diminish legal certainty and harm authors and publishers by diminishing their work, and creating a climate for freely using their work without permission or compensation.
The education exception in Section 12D
Like elsewhere, the education sector makes up the biggest part of the South African publishing industry.
Many authors earn their living from writing for the education market – expending their time, skills and labour in imparting their knowledge for the ultimate benefit of society. In exchange, they should be entitled to fair remuneration and acknowledgement. This will not be the case if the Bill is passed into law. The Bill allows copying of whole works under certain circumstances, and reproducing works in course packs without permission or compensation.
This will disturb the copyright ecosystem which authors rely on. It will create a climate within which freely copying copyrighted works for a wide range of purposes is permitted.
We submit that the rights of authors, especially of educational works, are to a large extent obliterated by the wide-ranging exceptions introduced by the Bill. These exceptions take away the incentive for authors and publishers to continue the business of, especially, educational publishing.
Is it wrong for authors and researchers and publishers to be fairly compensated? In certain scenarios contemplated by Section 12D, this core right to fair compensation is entirely extinguished in all meaningful ways. This carries the dangerous potential to destroy the basis for creating these works for educational purposes.
In conclusion:
The Bill needs to be reworked to actually protect and promote authors’ rights. At this stage, the Bill deprives us of our existing rights and income streams. We feel that authors deserve better.
And we humbly thank you for the opportunity to raise our concerns.
Notes:
[1] Read PASA’s statement here: https://www.litnet.co.za/press-release-no-impact-assessment-underlying-the-economically-destructive-copyright-amendment-bill/
See also:
Press release: No impact assessment underlying the economically destructive Copyright Amendment Bill
The Copyright Amendment Bill: an interview with Sadulla Karjiker
Press release: Authors unite against Copyright Amendment Bill
South African authors protest against Copyright Amendment Bill