Cape Town
07 August 2017
Reporter: Barney Dixon

South African copyright changes draw criticism

The South African Copyright Amendment Bill has faced major criticism in the build up to its implementation, after public comments closed and the legislation moved over to parliament for debate.

The South African Copyright Alliance petitioned the parliamentary portfolio committee on trade and industry last month over the proposed bill, arguing that it will “undermine creators’ copyright”.

The group, which claims to represent “most of the country’s music creators and publishers as well as book authors and publishers”, said that certain provisions of the bill would “disadvantage the very creators the bill aims to protect”.

Nothando Migogo, CEO of the Southern African Music Rights Organisation (SAMRO), which is part of the Copyright Alliance, said that the bill suggests that broadcasters and digital music services that use copyright-protected material should enjoy the same privileges as the creators of the work.

She said: “This would mean that a user is given the right to earn income, royalties, from material that is not theirs. This is in direct conflict with the basic principles of copyright law.”

“This would naturally dilute the revenue payable to creators in the music and literary industries, pushing them into further financial woes.”

The Copyright Alliance also took issue with the bill’s proposal to trigger an automatic loss of copyright where the state or other organisation commissions a creator to create content. This would see composers and authors lose the right to earn royalties when broadcasters use their work. It could also apply to filmmakers funded by the state.

The bill could also make instances of fair use “blurry”, Migogo said, as it essentially says “you can use [a copyrighted work] for free as long as a court of law will find the use to be fair”.

The Copyright Alliance said this is a vague concept that will force creators to approach the courts in an attempt to protect their copyright.

“This vague concept of ‘fair use’ is a direct import from the US, a very litigious society where the court system works much faster than it does here in South Africa.”

According to the Copyright Alliance, fair use would stop royalties from being paid to musicians if their music is used for educational purposes and that academic writers will be put in the position where a university buys one copy of the book and makes free copies for its students without compensating the author.

“It is confusing how we call for stronger systems (legislation and institutions) to work towards ensuring creators live better quality lives and are able to retire and pass on with dignity, yet our legislators are pushing laws that weaken the system that protects them,” the group said.

Professor at the American University and coordinator of the Global Expert Network on Copyright User Rights, Sean Flynn, argued that these fair use fears are “unfounded”.

In a post on the American University’s blog on information justice and intellectual property, Flynn said these claims were “untrue” and that fair use promotes innovation.

“At American University, we have been studying the benefits of fair use. We tracked the economic outcomes in more open and less open copyright systems over 40 years.”

“What we found was that high technology industries do much better in countries with fair use or other open copyright exceptions that can enable their work—and that entertainment and publishing industries do better too.”

He added: “Fair use is not carte blanche to use other people’s work without paying. Fair use only applies to uses that are fair. The test for whether a use is fair asks whether the use would deprive the author of revenue by substituting for the work in the market.”

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