[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.
I am writing to commend you on the drafted, revised Copyright Amendment Bill 2017. The Amended Bill is a vast improvement on the prior Bill. In particular, there must be commendation for changes such as state ownership in orphan works, perpetual state ownership, and so on. There are however, some problematic areas regarding the Bill. What follows will be a brief overview of some of the areas I think the Bill could be improved upon.
Excerpt: Our Federation welcomes Government’s initiative to review and modernize the legal framework for copyright in South Africa and implement the provisions of the WIPO Internet Treaties. We collectively believe in the need to make the Copyright Act fit for purpose in the digital age, so that local creators and producers of content may continue to see their works protected effectively whilst taking full advantage of the emergent new digital business models for content production and distribution.
Excerpt: South Africans would benefit greatly from a provision that makes is clear that the technical processes at the heart of machine learning, cloud computing, text mining, plagiarism detection, automated detection of copyright infringement and constructing search engine indexes do not violate copyright law. Under current South African law, all these activities are arguably unlawful because, although they do not communicate the copyright owner’s original expression to the public in any way, they all rely on copying as an intermediate technical step. Thus, it is a matter of concern that the current copyright revision bill, B13-2017) (Copyright), appears to make no provision whatsoever for important large-scale applications of new digital technology that will important to research and development in both the non-profit and for-profit sectors. As a result, the terms of the proposed revisions would leave South Africans at a permanent and crippling disadvantage compared to residents of the United States, Israel, South Korea and other countries that have adopted, or are considering adopting a so-called “fair use” approach to copyright limitations and exceptions, as well as other countries that may take a narrower approach to immunizing information technology innovators from liability.
[Submitted by Tobias Schonwetter] Excerpt: We note that the 2017 Bill is, as far as the drafting is concerned — and subject to our specific comments below — a marked improvement to the 2015 Copyright Amendment Bill. Some technical drafting errors do, however, remain. In particular, in many sections of the Bill, the word “author” is used, sometimes with a list of others, instead of the term “rights owner” being used.
In our comments concerning the 2015 Bill, we expressly welcomed the proposed introduction of a more flexible and open fair use provision. We note with concern that the lawmaker has since decided to significantly reduce the provision’s utility by limiting its applicability to a closed list of permitted purposes. We strongly urge the lawmaker to reconsider this decision and amend S12 of the 2017 Bill in line with our suggestions in this submission.
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.
Excerpt: We make this submission to request that the current South African law be amended to protect the right of FoP, namely the right to represent public works of art and architecture in other derivative works, such as in photographs or video. This could be achieved through either a specific exception or through an open list (i.e. open to purpose) fair use right in Sec. 12 of the Act.
Protecting FoP in the new bill would help to create a copyright framework that would maximise the public good from Copyright, without unduly eroding the rights of copyright owners.
Excerpt: This comment presents results of ongoing research on copyright limitations being conducted by American University Washington College of Law’s Program on Information Justice and Intellectual Property (PIJIP). The research demonstrates that positive economic outcomes are associated with greater openness in copyright limitations, and it supports arguments that South Africa will benefit from amendments to its copyright law that make limitations more “open.”
PIJIP defines copyright limitations as more “open” if they are open to the use of any kind of work, by any kind of user and/or for any purpose, as long as the use does not unreasonably prejudice the legitimate interests of the author.
The Library Copyright Alliance (“LCA”) consists of three major library associations in the United States: the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries. These associations represent over 100,000 libraries in the United States employing more than 350,000 librarians and other personnel. An estimated 200 million Americans use these libraries over two billion times each year. These libraries spend over $4 billion annually acquiring books and other copyrighted material.
Excerpt: Filmmakers support the added detail that the 2017 bill gives to what is currently a “fair dealing” exception, now proposed to be called “fair use.”
Much that is in the proposed fair use standard is useful to filmmakers. We are particularly supportive of the Bill’s proposed clarifications that uses can be made for the purpose of “illustration” – an important and frequent use in documentary film.
In a stunning reversal of policy, on June 30, 2017, the Supreme Court of Canada overturned decades of precedent making it easier for the biopharmaceutical industry to gain patents on medicines without any real proof of a claim that a putative invention has any meaningful utility. This reversal in AstraZeneca Canada Inc. v. Apotex, Inc. is particularly disconcerting because Canada had just won an investor-state arbitration award in the long awaited Eli Lilly v. Canada case upholding its more stringent promise/utility doctrine that had been used successfully to overturn two dozen secondary patents, particularly those claiming new uses of known medicines, where patent claimants failed to present evidence in support of the prediction of therapeutic benefit promised in their patent applications.
[Mitch Stoltz, EFF Deeplinks Blog, Link, (CC-BY)] The U.S. Copyright Office just released a long-awaited report about Section 1201, the law that bans circumventing digital restrictions on copyrighted works. Despite years of evidence that the social costs of the law far outweigh any benefits, the Copyright Office is mostly happy with the law as it is. The Office does recommend that Congress enact some narrow reforms aimed at protecting security research, repair activities, and access for people with disabilities.