The Copyright Amendment Bill (CAB) was first proposed in the National Assembly in 2016 and has been a topic of ranting and aggressive lobbying from two main vested interests in the copyright economy ever since.
The Bill was last amended in 2002 and is crucial in bringing legislation up to date with technology and international best practice. However a leading copyright expert apolicy bill rather than a copyright bill, and not fit for future digital/data purposes.
The Department of Trade and Industry (DTI), the custodian of the bill is under pressure to consult with South African copyright experts as opposed to the google-centric approach they have adopted over the last four years. Google has been actively and blatantly promoting a weakening of copyright worldwide.
In 2015 the DTI and Google “cooked up some sort of deal” as Monica Seeber of Authors Non Fiction Association (ANFASA) described. The deal brought together the Washington College of Law and Johannesburg’s NGO Freedom of Expression Institute (FXI). By 2018 these partners formed a coalition Recreate, named after the American lobby group Recreate Coalition and funded by the Open Society Foundation of South African (OSFSA).
Google provided “gifts and funding” to Recreate SA andAmerican Professor, Sean Flynn to guide the adoption of “fair use” into the CAB.
During the World Economic Forum in Davos 2018, OSF founder George Soros called Google a threat to democracy. His words, “That they are near monopoly distributers make them into public utilities and should subject them to more stringent regulations aimed at encouraging innovation and competition.”
According to Seeber, “Recreate fell under the influence of Tobias Schonwetter at UCT and Denise Nicholson at Wits, both of whom misinterpret ‘access to information’ (as in the Constitution) as being allowed to copy it and distribute copies so that people can gain access without paying for the original.”
Nicholson said, "Our current copyright law is 42 years old, totally outdated, doesn’t address the digital environment (no provisions for digitization, format-shifting, etc.) and has very limited exceptions for education, research and libraries and archives. It has no provisions for disabled people, nor for galleries and archives. The Bill has appropriate and fair provisions to address all these needs. It also provides more control for authors and creators, and will regulate collecting societies, which have not always paid fair royalties and have used members’ monies for other purposes." Recreate’s Ben Cashdan described the belief system of Recreate: “There is no such thing as an original work. Everything is built on our collective culture.”
The other major lobby group, the Copyright Alliance took exception to “fair use.” CA represents copyright holders, collecting societies and multi-national labels, including CISAC (International Confederation of Authors and Composers Societies), IFPI (International Federation of Film Producers Associations) and IFRRO (International Federation of Reproduction Rights Organisations).
Locally CA includes South African Music Rights Organisation (SAMRO) and their subsidiaries and affiliates. CA is aligned to the Coalition for Effective Copyright (CEC) allegedly representing the Motion Pictures Association of America. CA is both a South African and American organization.
CA claimed fair use would kill off royalties for creators. Their lobby was buoyed by the International Intellectual Property Alliance (IIPA), an umbrella organisation for five American film and television associations representing 3,200 American movie, music, software, and book publishing companies.
IIPA complained to the United States Trade Representative which has threatened to revoke South Africa's eligibility to participate in a duty-free trade scheme, The Generalized System of Preferences (GSP), should fair use be signed into law.
The fair-use debate has been raging for nearly two years, a leading copyright expert has described the stand-off as “smoke and mirrors.” The two lobby groups, Recreate South Africa representing Google and the demand for copyrights and CA representing rightsholders such as CISAC, IFPI and IFRRO are each other’s biggest customers across the world.
They have a shared vested interest of doing ‘world’ deals, conducted from a legal jurisdiction that is not South Africa. They avoid transparency and accountability as a business rule. And the CAB as it stands works perfectly for both groups, but not for the country.
The ‘fair user’ is not and never will be a royalty payer, thus many countries have included fair use exceptions for education, libraries and disabilities.And, there is precedent that it works.
In America, fair use is in the US Copyright Act of 1976. Fair use is described as “flexible copyright,” providing easier access to copyright works for the advancement of education. It is tested by four non-specific factors: 1. The purpose and character of the use, such as education; 2. The nature of the copyrighted work, especially non-fiction; 3. The portion used in relation to the copyrighted work as a whole, preferably small; and 4. The value of the copyrighted work, ideally not for profit.
“These are predators with little respect for national law who hold the profit motive and shareholder’s interests supreme.”
Article 17 Blunts Safe Harbour
Fair use is a distraction and misdirection from the real issue about the CAB that allows them to continue their unfair business practices unabated. The real issue with the CAB is Safe Harbour and both sets of lobbyists are completely silent about that.
Safe Harbour is a very serious threat. It is where the real money is being made, and the main culprit for plummeting royalties. Safe Harbour was brought into law in the US in 1998 as the Online Copyright Infringement Liability Limitation Act (OCILLA). It became a part of South African copyright legislation via the 2002 Electronic Communications and Transactions Act 25.
Safe Harbour has allowed content platforms toavoid the responsibility of paying for the content on their platforms, which they have done for the past decade. Safe harbor has shielded them from copyright infringements by their users and as a result, allowed them to build business models that circumvent the renumeration of copyright holders.
The fundamental copyright value since the Gutenberg Press in 1454,the “reproduction right,” has been destroyed by the ubiquity of “click copy and paste.” As there is no marginal cost to copying and pasting, there is no marginal value. This has createda “value-gap,” which has grown over the last ten years into a “value grab.”
Facebook and Google alone control half of the internet advertising revenue. YouTube (a Google product) paid US$1.8 billion of advertising revenue to rights holders and creators in the past 12 months. This is not from copies or streams. According to the Guardian newspaper Youtube’s advert supported online music video streaming has increased by 88%, however royalties to rights holders by only of 0.4%.
Safe harbor has been under scrutiny around the world. Landmark Australian legislation retained safe harbour provisions for educational institutions, libraries, and organizations in the disability, archive, and culture sectors, but did not extend it to content platforms.
Earlier this year, The European Union (EU) broke the global dominance of US big tech further by blunting safe harbor. They added an Articles 13 to their Copyright Directive which makes content platforms legally liable for the copyright infringement of their users and requires these content platforms to set up content filtering. Article 13, now renamed to Article 17, will enable copyright clearances and online licencing agreements for content.
Nicholson spelt out the danger of Article 17 to Recreate. She said, "Article 17 has proved to be very contentious and implementation will be problematic. The UK has withdrawn this clause from its copyright law.
The Big American technology companies, the content platforms, namely Google, Amazon, Facebook and Apple (GAFA or FAGA) have a combined GDP the size of Saudi Arabia, almost double the size of South Africa. They have expressed fears that Article 13 willrender some content platforms extinct like Napster and or be a slippery slope to internet censorship. In October President Cyril Ramaphosa signed the Films and Publications Amendment Act, to regulate harmful content and hate speech online.
The internet world, includes big data, privacy, internet platforms, intermediaries, databases, devices, smart devices, the internet of things and digital content in the form of data.The copyright spectrum includes music, films, books and songs, computer programs, databases and code.Copyright works can be created, distributed, sold, communicated, made available, paid for, enjoyed and consumed as data. Data is regarded as “the new gold.”
Yet, the CAB has only 11 mentions of the word digital, 2 of the word data, and does not include much of the current language in the EU Copyright Directive such as blocking, website, hosting, linking and injunctions. It does not include anything like the Article 13 or even the regulation of online contracts with content platforms which the US, the EU, New Zealand, Brazil, Russia, South Korea and Australia have all done.
EU and the US have traditionally held opposite approaches to copyright. The US grandises capital over creativity and the EU, places creativity first. As an example, moral rights are a cornerstone of the civil law copyright regime and were signed into law in 1889 at the Berne convention. America did not join the Berne convention until 1989 and when they did, they had to recognize moral rights.
South African Government's wait and see approach costs the creator
The Department of Trade and Industry to take a ‘wait and see’ approach before including provisions in the Bill. The Constitution,Sections 79 (1), (4) and (5), allow for reconsideration of the bill, but not for a delay in signing it. In 2020 the CAB was sent backto parliament.