A workshop of academics and stakeholders on Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform commended South Africa’s Department of Trade and Industry (DTI) for its public release of a Copyright Amendment Bill that would expand and clarify many user rights in the Copyright Act. The general message from the stakeholders at the meeting to DTI was that the reform bill succeeds in addressing many of the most pressing issues for copyright reform today, putting in place a good structure through which the details of the provisions can be analyzed and improved.
University of Cape Town IP Unit Director Tobias Schonwetter set the tone at the outset:
“The law maker in South Africa needs to be commended by tackling these problems. If you look at the list of issues addressed in the preamble, nearly every issue is addressed there. That does not mean that everything is perfect. But the norms and principles are right. The goals are proper.”
The meeting was particularly supportive of the bill’s intentions to include a flexible “fair use” clause, limitations and exceptions for people with disabilities (including disabilities beyond visual impairments), provisions to improve access to so-called “orphan works” (those where the rights holder cannot be identified or located), exceptions to prohibitions on circumventing technological protection measures, and prohibitions on the enforceability of contracts that limit user rights. In each area, the workshop discussed ways to better tailor the language in the appropriate section to meet the Bill’s ambitions.
Open for comment
The Copyright Amendment Bill was published for a 30 day comment period beginning July 27, 2015. The Comment period is presently scheduled to end on August 27, but DTI officials at the meeting indicated that they are considering requests to expand the comment period to at least 60 days (i.e. through September 27) or longer. DTI officials have announced that the deadline has been extended by 15 days to the 16th of September 2015.
The representatives from the Department of Trade and Industry welcomed technical suggestions. Mr. Macdonald Netshitenzhe, DTI Director of Policy and Legislation, addressed the workshop in the morning and engaged with the participants the entire day. (See the DTI presentation on the Copyright Amendment Bill). He urged the audience to become an active part of the process and make concrete suggestions on improving its text:
“See to it that we come with something that will be fair. Look at the US. Look at jurisprudence from other jurisdictions. Come with jurisdictions that we should align ourselves with. Other countries have moved. We want to come at this with the best copyright regime. Put your comments on a website so people can see there are people on both sides of these issues, that there people for achieving a better balance in our law.”
Pursuing balance
A primary goal of the bill is to tailor the Copyright Act to the needs of local creators. Mr. Netshitenzhe described the genesis of the bill as tracing back to high level commitments of the government to work to improve the plight of musicians in particular. A meeting was held between musicians and cabinet ministers in 2009, which highlighted problems in the collection of royalties by musicians for the performance of their works. In 2010, a Copyright Review Commission was appointed to study the issue. Its Report, released in 2012, included recommendations to amend the copyright act. The bill’s provisions on performance rights and collective management regulation are largely in response to the Report and the general effort to assist the music industry.
Mr. Netshitenzhe described the present bill as seeking aims beyond those initially raised by the music industry. He described a core purpose of the revision as to achieve a better balance between the interests of rights holders and users. He explained:
“Copyright creates a regulated monopoly. It creates a regulated industry. We can limit and broaden the rights in the act – that is the balancing act we are engaging in. My job is to take a balanced approach.”
A creators perspective for the modern age
Fred Von Lohmann, head of Google’s copyright team, encouraged the copyright reform process to be undertaken with a keen eye on the needs of today’s creators – 99% of whom are individuals who create and upload content to the internet without any commercial purpose. He recounted, for example, that there are over 300 hours of new video uploaded to YouTube every minute, and over 2 billion photographs uploaded to the internet a day – through apps like Snapchat and WhatsApp that did not exist 2 years ago. Copyright laws – which automatically protect every work at the moment of fixation – are ill-suited to this reality. Some modern laws are adapting to the reality – in Canada, for example, there is now an exception for the non-commercial re-use of video.
Von Lohmann also stressed the importance of retaining flexibility for new commercial uses that utilize, often without competing with, large volumes of copyrighted works. “Copyright determines what new businesses can take root,” he explained. Will it be lawful to provide applications that read and copy large volumes of information to deliver new services like speech and music recognition or self-driven cars? What will be the WhatsApp and Snap Chat of tomorrow?
Von Lohmann listed several key areas of concern to technology and innovation advocates, including: enabling cloud computing, linking, free and open source software, text and data mining and temporary copies – all of which could be promoted through a flexible exception like a fair use clause.
Fair use
One of the most innovative features of the bill is the inclusion of a new “fair use” right in Article 12A, modeled on the laws of the U.S. and other fair use jurisdictions including Israel, Malaysia, Singapore and South Korea. The bill proposes to add a fair use clause to its existing fair dealing clause, rather than opening the existing fair dealing clauses to new use (e.g. by adding “such as” to the fair dealing purposes). Article 12A(2) states:
“fair use of a work for purposes such as criticism, comment, news reporting, judicial proceedings, professional advice, teaching which may include, making multiple copies for classroom use, scholarship or research is not an infringement of copyright.”
Article 12A(5) provides the test for establishing fair uses, stating that
“the following factors shall be considered:
(a) the purpose and character of the use including, whether such use is of a commercial nature or is for non-profit educational purposes;
(b) the nature of the copyrighted work
(c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
(d) whether the use of the copyrighted work is fair and proportionate, by considering further that-
(i) the use of copyrighted work is of few lines of a song, literature or few parts of a film or art work for cartoon, parody or pastiche;
(ii) the use of the whole copyrighted work for cartoon, parody or pastiche for commercial use shall require the issuance of licence; and
(iii) the use of copyrighted work is compatible with fair practice in that the source and the name of the author are mentioned in the publication, broadcast, recording or the platform where the copyrighted work is displayed.
(e) the effect of the fair use upon the potential market for of [sic] the value of the copyrighted work.
The participants generally praised the new fair use right, but raised areas in which the right might be unduly narrow. For example, it remains unclear to what extent fair use would apply to commercial as well as non-commercial uses. The limit in 12A(5)(d) from using a whole work for parody and similar purposes raises free expression concerns. And the structure of the clause and its relation to the specific exceptions itemized in Article 12 were flagged for further clarification.
Mr. Netshitenzhe welcomed suggestions on how to improve, clarify and better harmonize the fair use standard with other jurisdictions, including the U.S. He called on the members of the audience to “assist us create a broader definition of fair use to allow our judiciary to move forward.”
Disability access
The bill also breaks new ground on disability access. Article 19D implements exceptions to copyright to permit “an accessible format of a work for the benefit of a person with a disability.” The provision is aimed at implementing South Africa’s commitments under the recently negotiated Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.
Mr. Netshitenzhe explained that the intent of the Bill is to provide broader access than is required by the Marrakesh Treaty. He referenced South Africa’s negotiation position that the Marrakesh agreement should cover “the rights of all disabled people.” And he expressed an intent to implement this principle in the Bill. “They can come with treaty for blind, that is not where the story ends for us. We can ratify the Marrakesh agreement, but this copyright bill will go beyond Marrakesh” in covering all people with disabilities.
In discussion, commentators noted that there appear to be conflicting definitions in the bill on disability access. Article 19D broadly authorizes accessible copies of any “work” (not just printed material) and defines disability broadly as “a person that requires an accessible format in order to access and use a work to substantially the same degree as a person without a disability.” In the definition section, however, a “person with a disability” is limited to those with “a perceptual or reading disability . . or is otherwise unable, through physical disability, to hold or manipulate a book or . . . for reading.” This definition appears limited to that found in the Marakesh Treaty and would not, for example, enable modifications to audio-visual works to assist the deaf or hard of hearing. Mr. Netshitenzhe affirmed the broader goals of the Bill and welcomed technical comments on how to define the terms to reach the full scope of needs by people with disabilities.
Orphan works
The provisions on orphan works, to be codified in Article 22A of the Act, make orphan works the property of the state perpetually, and require licensing from the Copyright Commission after a diligent search requirement with regard to each work used. Mr Netshitenzhe explained:
“It would be irresponsible for us to allow orphan works to go into public domain. The state will be custodian. If they come back, then they can get paid [by the state], but the law will not prevent use of the orphan work.”
This provision came under some criticism in the meeting. Librarians called the system for diligent search (which includes “search of the records of the database of the register of copyright,” “search of reasonably available sources of copyright authorship and ownership information,” “using appropriate technology tools” and “expert assistance” and publishing an intention to use each work in newspapers) as problematic for libraries. The proposal would make it very difficult, for example, to make copies of archival collections of materials (such as old photographs), some of which have no known author. Mass digitization of library collections to enable computer-driven research would be even harder to achieve. The notion of perpetual copyright was criticized as disrupting the policy balance at the heart of copyright.
Technological protection measures
The bill proposes to amend Articles 27 and 28 of the Act to make the circumvention of technological protection measures (TPMs) a crime. South Africa already has legislation on this issue, however, through sections 86, 87 and 88 of the Electronic Communications and Transactions Act, 2002 (Act 25 of 2002). Some raised this as a reason to not include the provisions in this Bill.
South Africa does not have any current international obligations in this regard. Mr. Netshitenzhe described the provisions as intended, however, to meet the requirement of the WIPO 1996 Internet Treaties, which South Africa has not yet ratified. Previous statements by government suggested that it would perform a cost-benefits analysis before adopting TPM provisions.
On the whole, the TPM provisions appear to adopt a very high standard model, including criminalization of making circumvention devices available if they are known to be “likely” to be used for copyright infringement. The standard includes a fairly broad exemption for individual users, however, which was commended by the workshop participants. Article 28P states that the Act shall not prevent any person from circumventing a TPM to enable “a permitted act or an act that falls within the general public interest exceptions.” It was pointed out that the list of public interest exemptions does not include the new Article 12A – an apparent oversight.
The workshop discussed the desirability of extending the Article 28P exception to include the supply of circumventing devices for practices that do not violate the Act. Otherwise, individuals will have a right to circumvent, but not lawful means to acquire a device or information needed to enable the lawful circumvention. Another suggestion included exempting computer security research from the prohibition on publishing “information enabling or assisting another person to circumvent an effective technological protection measure.” By its nature, information on how to circumvent protection measures yielded through security research must be published to be effective – i.e. to inform programmers how to correct for detected system flaws.
Parallel importation
There is a definition of parallel importation in the Bill, but the only mention of the right in the substantive text is in regard to trademark rights. In response to questions, however, Mr Netshitenzhe explained that the soon to be released IP policy calls for adopting parallel importation provisions for copyright, patent and trademark. This is an area the next revision can be expected to address.
Other issues
The workshop included a series of roundtables and open discussion in which other objectives for the copyright reform bill were discussed. It is noteworthy that the Department of Trade and Industry may have authority to address some of these issues (especially those of clarification of existing standards) by regulation.
- Protecting scriptwriters, photographers, professional book indexers and recipients of research grants from losing their rights through commissions or funding via Article 5 and 21.
- Expanding the Article 15 panorama right to include photography and other works beyond film and television;
- Clarifying in light of recent EU litigation that linking to infringing material, e.g. in internet search, is not direct infringement (e.g. as a communication to the pubic);
- Tailoring moral rights and other provisions of the act to ensure the viability of open source software and Creative Commons open licenses;
- Ensuring that format shifting and private copy rights permit third parties to offer cloud storage and other services without being liable for the content stored;
- Considering an originality threshold and a list of non-copyrightable subjects, including to limit protection for non-original compilations of data or for information required to be disclosed on products by regulation, such as generic medicine package inserts (see Beecham Group plc and SmithKline Beecham Pharmaceuticals (Pty) Ltd v Biotech Laboratories (Pty) Ltd 2002)
- Expanding and clarifying a right to format shift by libraries, for example to convert an entire VHS tape collection to digital format;
- Considering clarifying ownership on the recording of oral history and interviews for research;
- Addressing displays of art and other material and media for exhibitions for educational purposes;
- Addressing the use of works, including full works, for purposes of crucial analysis, review and comparative studies, e.g. for literature music or art studies;
- Considering text and data mining exclusions modeled on recent UK legislation;
- Considering more fully the intent and implications of craft work protection, including its relation to orphan works provisions and artist resale royalty rights;
- Creating an exception enabling reproduction, format shifting and decoding of technological protection measures for legal deposit and for purposes of preserving our cultural heritage;
- Clarifying the application of ownership and user rights with respect to public art, including graffiti;
- Permitting, in line with recent provisions in Argentinian and German law, open access deposits in institutional repositories, including for commissioned or state funded works.
The workshop on Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform was co-sponsored by American University Washington College of Law Program on Information Justice and Intellectual Property (including its project organizing the Global Network on Copyright User Rights), the University of Cape Town Intellectual Property Unit, the University of South Africa Intellectual Property Flagship, the University of the Witwatersand Library, Creative Commons South Africa and the Cultural Industries Legal and Advisory Centre. The workshop was attended by 40 participants from government, academia, civil society (including consumer, rights holder and disability advocacy organizations), and industry (including media and technology companies and associations). (See the full list of participants.)
There are other copyright reform processes underway in South Africa. In 2013, the IP Laws Amendment, relating to the protection of traditional knowledge and culture, was adopted, but the provisions have not been promulgated into law. There is also a proposed Bill being considered to amend the Electronic Communications and Transactions Act, which includes safe harbors from copyright infringement liability for intermediaries.
[This blog was updated to reflect that DTI officials have announced that the deadline for comments has been extended by 15 days to the 16th of September 2015.]
