News24 | Global authors ask Parliament not to adopt harmful copyright bill

• A global network of authors’ societies is asking the National Assembly not to adopt the Copyright Amendment Bill.
• The bill, which was initially turned down by the president nearly four years ago, is up for reconsideration by the National Assembly this week.
• But concerns remain that if it becomes law, then it would harm South Africa’s creative community.
• For more financial news, go to the News24 Business front page.

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A global network of more than five million creators has implored South Africa’s parliamentarians not to adopt the controversial Copyright Amendment Bill.

Gadi Oron, director general of the International Confederation of Societies of Authors and Composers, known as CISAC, spoke out against the bill in a statement issued on Saturday, warning that it would harm South Africa’s creative community.

The bill and a report on it compiled by the Portfolio Committee on Trade, Industry and Competition is scheduled to be considered by the National Assembly on Thursday.

The National Council of Provinces adopted the bill in September 2023.

But CISAC, which is the world’s leading network of authors’ societies, is asking the National Assembly not to adopt the Copyright Amendment Bill.

“If adopted, the bill will harm South Africa’s creative community, devalue creators’ works and be out of step with international best practice,” said Oron.

The bill has also been opposed by local artist associations, including those belonging to the Copyright Coalition South Africa which has campaigned for the redrafting of the bill which had been initially introduced in 2017.

CISAC puts forward that the bill will weaken copyright, which is the “foundation of creators’ economic sustenance.” It would negatively impact not only the livelihoods of those in creative industries but also that of the next generation of creators, said Oron.

Some of the key amendments of the bill include providing people with disabilities access to copyrighted works – for example converting a book into a format such as braille which would be accessible to a person who is blind.

The bill also relies on the “fair-use principle” to allow for the free use of copyrighted works in certain circumstances, such as research or teaching. News24 previously reported that companies like Google support the fair use principle.

The bill introduces the protection of digital rights and also provides for “equitable remuneration” or the sharing of royalties in copyright works – such as literary, musical, artistic and audiovisual, and also allows for the resale of royalty rights. It also speaks to limitations and exceptions when it comes to reproducing copyrighted works.

But the bill falls short in several ways, with Oron pointing out that there is an “open-ended list” of exceptions to copyright.

“This excessive focus on exceptions, instead of the rights of creators, is not what the function of a new copyright law should be. It devalues works, opening up many new uses for which creators will no longer have the right to earn royalties,” said Oron.

He also described the “fair use” principle as a “lose-lose” situation for both creators and users that will lead to uncertainty in the market and would just result in “expensive and wasteful” litigation.

“The democratisation of information and education are important objectives, but they should not come at the expense of South Africa’s poets, composers, culture and creativity,” Oron said.

Oron added: 

While the bill’s intentions are to protect creators, it fails to do so, CISAC argued.

“We ask that the National Assembly thinks again and does not adopt the current bill draft,” Oron emphasised.

Attorneys from law firm Webber Wentzel similarly warned in April 2023 that while the bill is an attempt to grant creators more rights, it inadvertently limits their rights.

The bill restricts creators from contracting with businesses on terms that are “commercially favourable,” wrote Carla Collett and Joshua Leroni of Webber Wentzel.

“What the bills have not considered is that companies will merely move their business and investment to countries that provide the best competitive advantage for copyright protection,” they said. “… Creators from all industries in South Africa will struggle to find partners willing to commercialise their work.”

This would ultimately harm economic growth.

Attorneys from Adams & Adams have also echoed sentiments that the bill would harm investment in South Africa. “It [the bill] also contains provisions that would severely curtail contractual freedoms, to the extent that South Africa may no longer be seen as a viable international destination for large creative content production projects, including software, gaming, music, advertising and film and television production projects,” the firm warned in October last year.

Meanwhile a petition has been started by several authors’ associations including PEN South Africa, the Academic and Non-Fiction Authors Association of South Africa (ANFASA), PEN Afrikaans and Publishers Association of South Africa. They are calling for the National Assembly to reject the bill.

The associations raise concern that the bill’s proposed “copyright exceptions anchored in fair use” would weaken copyright protection. “The bill will deprive local creatives of existing rights and income streams,” the petition read.

The associations also warn that the local book industry is projected to see a 33% decline in book sales, and a 30% decline in employment, if the bill becomes law. “Copyright law should strike a fair balance, but this bill does not. It will cause lasting harm to the very people it claims to protect,” the petition read.

READ | Parly committee accused of trying to rush through ‘defective’ copyright bill for political reasons

The Performers’ Protection Amendment Bill is another bill that has raised the ire of those in the creative industry and is also scheduled to be considered by the National Assembly on Thursday.

President Cyril Ramaphosa, in June 2020, sent back both the Copyright Amendment Bill and Performers’ Protection Amendment Bill for the National Assembly to reconsider – having been concerned about their constitutionality.

The president also raised concerns that the bills were incorrectly tagged section 75 bills, which do not affect provinces. The bills had to be retagged as section 76 bills, which affect provinces as well as cultural matters and trade in copyright.

In a report based on the president’s reservations about the copyright amendment bill, the portfolio committee noted a range of changes, including retagging it as a section 76 bill.

However, the Democratic Alliance, Freedom Front Plus and African Christian Democratic Party indicated they would not support this version of the bill, indicating concerns with inadequate consultation processes and other concerns related to the economic rights of artists and performers.

The committee still recommends it be adopted by the National Assembly.