[Matthew Sag and Sean Flynn, IP Watch, Link (CC-BY-NC-SA)] This week, the South African Parliament began accepting comments on its pending Bill proposing to amend the South African Copyright Act to align it with the digital age. We and other experts and civil society organizations submitted comments praising many of the Bill’s provisions and proposing that it adopt an “open” fair use right. Here we focus on one major reason to adopt an open fair use right – to authorize so-called non-expressive uses of works. We conclude with some reflectio ns on how international law could help in this regard.
Excerpt: We write to support the inclusion of a modern general exception in section 12 of the South African Copyright Act, and to offer refinements to the 2017 Bill’s proposal that we think would make it better serve the interests it promotes. General exceptions apply a single flexible balancing test (often defining what is “fair”) to authorise uses of copyrighted works for either an “open” or “closed” list of purposes. By open, we mean that the exception can apply to potentially any purpose, as in the United States, Israel, Malaysia and other countries. Closed list systems can only be applied to a purpose listed in the clause.
Chair: I would like to support that aspect of the GRUAC proposal that focuses on the role of limitations and exceptions in the digital environment as a top priority for this committee.
There is an increasing recognition that so-called non-expressive uses – uses necessary for technological processes that do not compete with the copyright owner – are necessary to enable the internet and the services that are offered over it.
Chair: You and I are from countries that have educational exceptions that are open to the use of any work, for any education related activity or purpose, and by any user — subject to a fairness test that takes into account the rights of authors and rights holders.
This openness in the exceptions environment enables innovations that promote access to learning materials, including through new technologies and over the internet.
There is increasing attention in international trade and copyright forums to the question of how international law should protect and promote copyright user rights. I presented the following options at this year’s Creative Commons Global Summit as examples of provisions that (at least partially) promote the organization’s mission of promoting “nothing less than realizing the full potential of the Internet — universal access to research and education, full participation in culture — to drive a new era of development, growth, and productivity.”
Existing models included in trade and other international agreements primarily serve two ends –
- protecting rights of countries to enact “fair use” rights, e.g. from the challenge that such exceptions could be held to violate the Berne “3-step test” as not being sufficiently tailored to “specific” cases, and
- affirmatively promoting user rights in copyrights systems, either through broad mandates to achieve “balance” or through mandatory exceptions for some categories of use.
A Copyright Amendment Bill will be tabled in Parliament by the South African government proposing to reform the current system of copyright law in the country to include a “fair use” clause modeled on US law. American University Washington College of Law’s Program on Information Justice and Intellectual Property (PIJIP) is visiting South Africa December 1 through 15 to participate in a series of workshops and lectures exploring how adoption of the proposed fair use standard may benefit creativity, innovation and development in the country. The workshops and presentations will include discussion of recommendations on the Bill submitted by legal scholars in a Joint Academic Submission on the Copyright Bill, consisting of a summary letter, table of section-specific comments, and proposed text for Sections 12 and 12A.
Senior copyright industry experts described the Trans Pacific Partnership and other recent free trade agreements as likely setting a “high water mark” for intellectual property commitments in trade agreements. The statements came as part of a symposium last week on Trading in IP: Copyright Treaties and International Trade Agreements sponsored by Columbia Law School’s Kernochan Center for Law, Media, and the Arts.
Steve Metalitz, Partner at Mitchell, Silberberg & Knupp LLP and long-time Counsel to the International Intellectual Property Alliance, kicked off the discussion
Reports from the WTO Public Forum held last week highlights a notable shift in the World Trade Organization toward an E-Commerce Agenda. The issue appears likely to be addressed substantively in the 2017 Ministerial Conference. Through then, the organization is likely to be increasingly discussing the form and objectives of a possible negotiation on the topic.
The WTO has had an explicit E-Commerce agenda since 1998. But the issue is receiving substantially increased attention in the WTO now.
A workshop hosted by Electronic Frontier Foundation discussed the opportunity to use any WTO engagement with E-Commerce rules to expand transparency and participation processes for internet companies and users, academics and the greater public.
My intervention at that panel discussed at least three major goals that the WTO may have in constructing a more open discussion of E-Commerce rules:
I am speaking on behalf of the American University Program on Information Justice and Intellectual Property. And I speak as an educator myself and also on behalf of a larger network that I coordinate called the Global Expert Network on User Rights which is a network of educators.
Although I teach in a Northern school in Washington, D.C., I also spent some time teaching in a major university in South Africa where the context of access to educational materials is very different. When I taught an advanced constitutional class there of 70 students, only about five or six of the students could purchase the learning materials, the textbooks we were using for that class. The rest of them after each day would huddle in the library and attempt to share and read the copies that were on reserve in that space. And that’s the reality around much of the world – text books are priced similarly in poor countries and rich countries, but because of the disparities in income, students in poor countries cannot afford their learning texts.
Intellectual property scholars and researchers from prominent universities in the U.S., Canada and Australia have released a submission to the Australian Productivity Commission strongly criticizing a report by PriceWaterHouseCoopers (PWC) on the economics of fair use (PWC Report).”
According to the Academics’ Submission:
The diffuse and forward-looking benefits of open exceptions like fair use may be hard to measure, but they are no less real. The PWC’s evaluation of the costs and benefits of fair use are not real. It is full of imagined horror stories that are unlikely to take place in fact.
Flexible Exceptions Work in Developing Countries
I was asked in the hearing to comment on the proposition that flexible exceptions like fair use are only appropriate for the U.S. or other countries with highly developed adjudication systems. As I noted in the hearing, this idea is based on some key fallacies.