Civil groups rally in defence of copyright bill

• Supporters of the bill are hopeful that the Constitutional Court will find it complies with the constitution and President Ramaphosa can sign it into law

Civil society organisations supporting the Copyright Amendment Bill, which President Cyril Ramaphosa has sent to the Constitutional Court, are hopeful the court will find it complies with the constitution and allow the president to sign the bill into law.

Civil society organisations supporting the Copyright Amendment Bill, which President Cyril Ramaphosa has sent to the Constitutional Court, are hopeful the court will find it complies with the constitution and allow the president to sign the bill into law.

Represented by umbrella copyright advocacy group ReCreate SA, the organisations are strongly in favour of the freeuse provisions in the bill. However, an expert on SA copyright law and author of a textbook on the subject, Stellenbosch University

emeritus professor of intellectual property law Owen Dean, says these provisions contravene the constitution.

Dean welcomed Ramaphosa’s decision to send the bill to the Constitutional Court, describing it as “atrocious” and saying it should be scrapped and taken back to the drawing board.

However, ReCreate convener Kyla McNulty and Scholarly Horizons founder and advocate for copyright reform Denise Nicholson said in a statement that Dean’s description of the bill “is part of a broader narrative that fails to account for a very long, democratic legislative process that has seen the bill evolve many times since its 2015 version.

“It is unfortunate that the Copyright Amendment Bill is not being acknowledged as the work of extensive civil society and other stakeholder engagement as it should be.”

They took issue with Dean’s view that the introduction of the concept of fair use, which he said undermined the rights of copyright holders, was unconstitutional in that it violated the provisions of the Berne Convention for the Protection of Literary and Artistic Works, which SA subscribed to and which governed copyright worldwide. The

SA constitution requires SA to observe the terms of the conventions to which it belongs.

“This claim is unfounded and inaccurate. Fair use has to date not been found to violate the Berne Convention or any other international intellectual property agreements. The US has enjoyed fair use for centuries, but it was only codified in its Copyright Act in 1976,” said McNulty and Nicholson.

“None of the countries with fair use have been subjected to World Intellectual Property Organisation or WTO dispute resolution mechanisms to date, so why should SA be any different? Fair use has proved to be positive for society and creatives at large.”

According to Dean, what the amendment bill provided for was virtual freedom for people to copy unless it was considered unfair.

But he pointed out that the courts would have to decide whether the use was fair or not in every particular instance. There would be free use unless a court decided very much later that it was unfair.

“This creates tremendous uncertainty and creates an untenable situation,” he said.

“I and many other people have been fighting this for years. This does not comply with the

Berne Convention and that makes it unconstitutional.”

McNulty and Nicholson took issue with Dean’s view that the bill would curtail the freedom of the copyright holder to decide on the period in which their rights would be transferred to another party.

FREEDOM TO TRADE

In terms of the bill, copyright can be assigned only for a maximum of 25 years, which would affect the value of the product at the time of the contract, which Dean said was an erosion of the freedom to trade.

“The provisions in the bill will not curtail the freedom of the copyright holder,” they said. “It will empower authors and creators to make better choices about their works, especially those who were prejudiced by unfair contracts in the past.

“They will be able to renegotiate fairer contracts or elect to exploit their works elsewhere. It empowers them to take control of their works, something they particularly need to do in the digital world, as there are so many alternative routes to exploit their works lawfully.”

They said the bill, linked with the Performers’ Protection Amendment Bill, would empower creatives in the context of SA’s historically exploitative creative industries that were largely unregulated. Their statement said that the 1978 Copyright Act was outdated, restrictive, biased and discriminatory.

“The bill provides a far more balanced set of provisions and limitations and exceptions that will benefit all stakeholders across the spectrum.

“The bill essentially balances the playing fields and aligns SA with progressive copyright laws around the world. It gives SA, a developing country, the chance to access, share and advance knowledge and finally take SA into the 21st century.”