Litnet

On 28 March the Copyright Amendment Bill was passed by the National Council of Provinces. If President Ramaphosa signs the bill, the process will have been completed.

Louis Gaigher (senior publisher at Van Schaik Publishers and a member of the Publishers Association of South Africa’s legal committee) and Leanne Martini (general manager of Van Schaik Publishers) discuss the Copyright Amendment Bill with Naomi Meyer.

In a country with so much poverty, would more free access to academic material not benefit the South African community? Or, what do these amendments propose?

To address the first part of your question, certainly, more free access to academic material would benefit the South African community. However, material that has been made available at no cost will often have been written by an author on some form of sponsorship. In other words, while such material is made available at no cost to the user, someone had to give of their time and money in order to create the material. In the academic world, material needs to be revised continually in order to keep it current and relevant to the curriculum. Would such authors be willing to continue updating this free content if there were potentially no further sponsorship or funding available? Possibly, in some instances, yes, but there is a chance that a very large body of work out there might just become dated and irrelevant.

Such free material may, in the short term, be of benefit to our academic community, but in the long term we need sustainable, well-aggregated, freshly researched, curriculum-based and contextualised material in our education system, if we are to see a healthy pass rate with graduates filling productive positions to grow the economy of this country.

We are grappling with many issues in our education system at present, and making material available free would not necessarily address matters such as the debate around decolonisation of the curriculum; it would add additional responsibility on lecturers to develop such free material, and institutions that are already financially stretched, with limits being placed on annual fee increases, would possibly need to source additional funding in order to outsource the development of such free material. It is, therefore, questionable whether free material is sustainable and would benefit our education system, our economy and our country in the long run.

To address the second part of your question, the objectives of the Bill seem laudable, but the Bill itself would have many negative consequences. The Bill does not reflect a well-considered, balanced view of interests, but suggests a lack of understanding of the rationale for copyright protection.

Our mission as publishers is to enable users to access material in a sustainable way. We invest heavily in researching and developing top-notch, locally relevant academic material. The Bill is heavily skewed towards users, at the cost of creators.

The Bill erodes copyright protection. It makes it impossible for creators of academic work to protect their legitimate interests, such as being remunerated for their work and having their work’s integrity respected. The Bill, if enacted, would de-incentivise creation. Two noteworthy and harmful amendments are the “fair use” defence and overbroad exceptions.

“Fair use”

The Bill introduces the US doctrine of “fair use” into our law, but in an even more extreme form than in the US. Currently, our copyright system allows for free access in specific instances. For example, copyrighted material can be used for free for illustrative purposes and for research or study. These are instances of “fair dealing”, an approach to copyright exceptions that is well-established in our law. It chimes with international copyright conventions that limit exceptions to special cases where copyright holders’ interests aren’t unreasonably prejudiced.

“Fair use”, on the other hand, sets an open-ended standard with a list of factors for consideration when assessing possible copyright infringement. In terms of this rule, it is the copyright holder’s responsibility to approach the courts for recourse when an infringer copies, digitises, translates or reworks material without permission.

The case is judged according to the infringer’s requirements, and possible consequences for the infringer would be no worse than if they had originally obtained permission and paid remuneration. Copyright holders would be at a disadvantage, burdened with costs and an uncertain outcome. In fact, South Africa’s version of “fair use” is more expansive than the US’s, with additional general and special exceptions and no statutory damages.

Overbroad exceptions

Access also trumps protection in the newly introduced, overbroad copyright exceptions. Our existing regime allows unremunerated and unpermitted use for illustration. The Bill now introduces a blanket exception for educational purposes. If the Bill is enacted, an institution would act within its rights to copy a substantial part of a work and disseminate it if it “does not exceed the extent justified by the purpose”, a test that is completely user-oriented.

Who do you think would be affected (in a negative way) by these amendments, and why?

According to the PricewaterhouseCoopers (PwC) 2017 impact assessment, “The expected impact of the ‘fair use’ provisions and exceptions for education in the Copyright Amendment Bill on the South African publishing industry”, publishers expect a weighted 33% decrease in sales, which would amount to a decline in sales of around R2,1 billion a year, and subsequent job and revenue losses.

If the Bill were enacted, students and learners would have access to a more limited range of local, relevant, high-quality academic material. They’d be more reliant on imported publications.

The Bill endangers the livelihoods of thousands of knowledge industry workers, such as authors, editors, publishers, book designers, typesetters, illustrators, photographers, printers, marketers, distributors and booksellers.

Since 80% of South Africa’s publishing industry is educational in nature, “fair use” and overbroad exceptions (as discussed above) pose a threat to the very sustainability of the local publishing industry, and cast a long shadow over the trade sector (the sector involved in developing and distributing books in various formats for the general public).

The expected decline of the publishing industry would have a profoundly negative impact on South Africa’s cultural life.

We have asked our readers to sign petitions in the past, and many have responded. Do you think yet another petition would make any difference at this stage?

The struggle continues. We hold that some aspects of the Bill are unconstitutional, such as retrospective and arbitrary deprivation of property and inadequate public consultation. We are, therefore, imploring President Ramaphosa not to assent to the Bill, but to refer it back to the National Assembly for reconsideration, as is his duty if he has reservations about a Bill’s constitutionality. A groundswell of public opinion would hopefully lead to more careful consideration and a new process.

We, therefore, urge everyone who attaches value to books, ideas, knowledge and culture to add their voices and signatures to the petition.

• Contributions by Leanne Martini and Louis Gaigher, Van Schaik Publishers.

Video: https://www.youtube.com/channel/UClNoQvAd2TU3O-0jZZkxEAg

Petition to President Ramaphosa: https://www.petitions.net/petition_against_the_signing_into_law_the_current_amendments_to_the_copyright_act_no_98_of_1978_by_honorable_president_ramaphosa?u=2771503&uv=14087559&utm_source=twitter