South Africa: A Story of Fair Use & Unfair Dealing

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Earlier this week, South African President, Cyril Ramaphosa, issued his long awaited decision about the Copyright Law amendments sitting on his desk, and wisely sent the bill back to the Parliament based on the perceived constitutional infirmities as to both substance and process. The official statement noted:

The President also has reservations that several sections of the Copyright Amendment Bill may constitute retrospective and arbitrary deprivations of property in that copyright owners will be entitled to a lesser share of the fruits of their property than was previously the case.

President Ramaphosa is concerned as well that substantial amendments affected to various sections of the Bill — including Section 12A which deals with the fair use of a work or performance of a work — were not subjected to public comment before the final version of the Bill was published.

Other reservations cited by the President include copyright exceptions provide for in the Copyright Bill that may constitute arbitrary deprivation of property; may violate the right to freedom of trade, occupation and profession, and may be in conflict with the World Intellectual Property Organisation (WIPO) Treaty and the WIPO Performance and Phonograms Treaty, both of which South Africa subscribes to.

This was, of course, welcome news to most of South Africa’s creative community who had been warning the President about the grave risks to South Africa’s economic and cultural interests were the legislation to be passed in its current form. South African authors, musicians, songwriters and others in the creative community had previously highlighted the outsized role of American tech companies, academics and organizations in pressing for adoption of the law as part of their global policy agenda to expand fair use, without regard to the particulars of the South African experience, and without any consideration for the impact on the South African creative community. This was clearly exposed in an article in South Africa’s Daily Maverick, entitled: “The Copyright Bill is fundamentally flawed and strips creatives of their rights.”

The core issue with the Copyright Amendment Bill is that it will amount to the expropriation of intellectual property (IP) without compensation. This will deal a hammer blow to the production of local content in our book stores, on our television screens and in our educational institutions.

Although the bill was originally intended to benefit South African creatives, it will instead cut off their income streams. The losers will be local artists, writers and musicians. The winners will be the large, global tech companies who will gain free access to South African content thanks to the bill’s extensive exceptions to copyright, especially under an expansive set of principles allowing free use of copyright materials called “fair use”.

The breadth of opposition to the proposed legislation from South Africa’s creative community was underscored by Benjamin Trisk, Chairman of Trustees: Nal’ibali literacy organization:

“In its present form the Copyright Amendment Bill endangers authors and their output at a critical and formative time in the emergence of a new literary voice in South Africa. That voice has become more strident and more important as countless South Africans of colour begin to weave their personal narratives into fiction and memoir. Equally importantly are the many works of non-fiction that are emerging from a three-century old racist past to shed light on a history of South Africa that, until recently, was recounted only by the victors.”

South Africa’s music community was so concerned about the implications of the bill that they came together to create a song that implored President Ramaphosa to send the flawed Copyright Amendment Bill back to Parliament. They wrote:

As musicians and composers we are opposing certain sections of the bill, notably the overly broad exceptions that will apply through the adoption of ‘Fair Use’. Essentially this means that anyone can use our work, without compensating us, and claim that it was ‘fair use’ which is very poorly defined. The responsibility falls to the artist to challenge that use in court, which we all know is extremely costly.”

Vikela Mina is the latest in a stream of public appeals to the President to not sign the bill. These include a protest march in Cape Town, an Open Letter in the Sunday Times and other publications, petitions that have gathered thousands of signatures, as well as articles and interviews in the media.

The voices of the nation are literally rising to call for the President to protect their livelihood and South Africa’s creative heritage.”

I provide this background because the announcement by President Ramaphosa to send the bill back to Parliament has been met by some of the bill’s supporters with proclamations of betrayal — that somehow the President had sold out South Africa’s interests to appease the US and EU governments, each of whom had expressed concerns about the draft legislation. But these howls of protest have somehow managed to completely fail to reflect on the scope of local opposition from the very groups that this legislation was theoretically designed to help. And while I grant that some opposition is local, the loudest voices of protest seem to be emanating from outside of South Africa — from Julia Reda, former Pirate Party Member of the EU Parliament who campaigned vigorously in support of the legislation, and from US academics and organizations who were confident that their intense and long-standing engagement in South Africa was going to bear fruit and fuel their global ambitions to export fair use. In addition to ignoring the chorus of local voices opposed to the bill, their current narrative also fails to reflect on the outsized role by groups outside of South Africa in promoting the legislation.

This piece from André Myburgh, in addition to properly contextualizing the proposed amendments and why they fail to advance South African interests, also details the involvement of US academics, funded in part by US commercial interests that see themselves as part of “fair use industries,” a term that should be disturbing to all policy makers given the incongruity of building an industry on the back of unpaid creative labor. As I have previously noted,

“Fair use is theoretically limited to certain special cases that don’t conflict with a normal use of the work and don’t unfairly prejudice the legitimate interest of the creator. If unauthorized uses are the foundations of industries, one might be forgiven for thinking that by definition, they are not fair inasmuch as they suggest the presence of significant economic harm.“

André also just published a piece describing his experience as one of the four experts designated by the Portfolio Committee of the Parliament to review the law. He writes:

As a near-final step, the Portfolio Committee appointed a panel of experts, including myself, to review the Bill. The Committee did not want commentary from the experts, all they wanted was a mark-up of a document with the then-current version of the Bill.

However, as I wrote to the Committee in my advice, “The legal issues raised by the Bill and by the process it took to get to this point, are substantial and material, whether from the perspective of compliance with the Constitution, South Africa’s meeting of its obligations under the international treaties to which it is a party, and the conceptualisation of its provisions arising from the policy considerations that underly it. This advice shows that the Bill has material flaws in all these respects, very few of which can be corrected by mere changes in the wording of the clauses of the Bill.” All four experts drew the Committee’s attention to some very serious deficiencies of the Bill, many of which were subsequently raised in the President’s rejection of it….

Notwithstanding all of this, I was dumbfounded when, in my presence, the dti’s Consumer and Corporate Regulations Division reported to the National Council of Provinces that the panel of experts had “cleared” and “verified” key provisions of the Bill. This statement was clearly false. A letter I wrote to the Minister, the DTI and the Select Committee reporting on this untruth received no reply and had no impact on the process to pass the Bill in Parliament.

In short — an admittedly somewhat odd way of ending a piece that’s not entirely brief, I urge interested parties to look deeper into the complex web of relationships, interests and equities underlying President Ramaphosa’s decision to send the Copyright bill back to Parliament. This bill, originally intended to help South Africa’s creative community transition and thrive in the digital environment, was hijacked by a small group of ideologues committed to a principle of governance that bore little relationship to the situation in South Africa — aided, assisted or directed by entities outside of South Africa. The final result was, as expressed by so many South African creators, a bill that would have rewarded “large, global tech companies who will gain free access to South African content.” President Ramaphosa stood up for South Africa’s cultural and economic interests, and rejected the facile oversimplifications expressed in the draft. Reda et al really thought they were going to win. And I don’t deny that she felt that her win was also South Africa’s. She believes in what she’s selling. But luckily, President Ramaphosa didn’t, and understood that South Africa’s future lay down a different path.

This article originally appeared on Neil’s Medium page – republished with permission.

Neil Turkewitz

Author: Neil Turkewitz

Neil Turkewitz is President at Turkewitz Consulting Group. A copyright activist and member of the Artist Rights Alliance, he served as EVP International at the Recording Industry Association of America (RIAA) was Vice-Chairman, Industry Trade Advisory Committee, and a former member of the Board of the Chamber of Commerce’s Global Intellectual Property Center. Follow him on Twitter @neilturkewitz and on Medium.

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