Questions to Answer posed by the Mail and Guardian
by Nontando Tusi, Counsel, ReCreate South Africa
Why is ReCreate supporting this Bill?
Our Coalition supports the Bill for a number of reasons. The copyright law in South Africa dates back to 1978, is extremely outdated, and does not address the digital age in which we now operate. Bill promotes three rights which are fundamental to our different stakeholders, namely the right to earn, the right to own and the right to create.
The Bill accomplishes the right to earn through provisions that promote royalty sharing, which mandates publishers and other sellers of works to share royalties derived from works, even when those works are assigned. The Bill provides for the accreditation, regulation and membership control of collecting management organisations and demands transparency in the payment of royalties to creators based on actual reports of the use of the copyright protected work. The right to earn is further accomplished by the introduction of the resale royalty right which will allow visual artists to receive a share of the sale price when their works appreciate considerably after the first sale. Furthermore, after decades of exploitation, actors, musicians and performers will gain the right to have control over their work and the right to fair remuneration and royalties for the continued usage of their work.
The Bill promoted the right to own by removing the statutory presumption that the commissioner of the works is the default owner of the work and requires the ownership of commissioned works to be determined by mutual agreement between the contracting parties. This was a provision that was directly called for by creators and the Department of Trade and Industry took this into account and included this in the Bill. The Bill proposes a right of reversion, transferring copyright ownership back the creator 25 years after any assignment. The Bill also ensures that moral rights apply to all works.
In terms of the right to create, the Bill adopts the fair use copyright exception, expands the incidental use right to include all works and makes it clear that you may capture works in public spaces in a new creation. These provisions are valuable to creators as well as public interest users like libraries and educational institutions. Creators value fair use because the are many instances when creation relies on the use of other work, as explained below.
In addition to the above mentioned reasons, the Bill will finally break the ‘book famine’ and empower those living with disabilities to give them access to works published in accessible formats, such as Braille, which is something that the current Copyright Act criminalises.
There is contention that “Fair Use” will cripple creatives in the industry because people will be able to copy their work for free? Do you guys agree?
Fair Use will not cripple the creative industry. This has not happened in any of the countries that have adopted fair use. Fair Use does NOT mean that all uses of works will be free. The Bill specifically states that a fair use cannot substitute for the work in the market, and therefore guards against piracy.
The Bill sets out very clear parameters as to what use of a copyright-protected work will be considered fair. In deciding whether a use of a work is fair the following four considerations need to be taken into consideration:
1 – the nature of the work i.e. this is important as not all copyright protected works are enforced with equal weighting, for example, a newspaper article that states facts will not be protected on the same level as an authored novel.
2 – the amount extracted from that work, e.g. to copy an entire academic textbook is not fair use, that is infringement, and if sold, piracy.
3 – the purpose of the work, which looks at whether the use is for criticism, educational uses or parody etc. A great example of this is that Trevor Noah would not be able to host the Daily Show in South Africa, under the current fair dealing, because it requires him to use excerpts from the likes of Fox News for criticism, parody, satire, etc. Fair use is would make that possible.
4 – the impact of the use on the market for the original work, including whether the use can substitute for the work in the market. It is illegal to engage in piracy.
Fair use is necessary for creators because many new works contain references or excerpts of other works. Documentary films quote news and other sources. Photographs capture copyrighted images and structures. Authors quote other authors. Fair use ensures that creators have the rights to make these and other uses that do not substitute for the original work in the market. In doing so, it frees creators from private censorship.
Fair use is also necessary for the innovation that we all rely on. The key innovation of fair use is its flexibility, It applies to all kinds of works and purposes as long as they are fair. It can thus be applied to technologies like data mining and machine learning for artificial intelligence which were never envisioned in our 1970s legislation.
Fair use facilitates access to research and educational materials, which is crucial for creators and our country. It also permits the creation of decolonised learning materials in all South African languages. Libraries will also finally be able to digitise and preserve important collections, including our cultural heritage. Without access to existing knowledge, no new knowledge can be created. Creators rely on access to rich archives and other sources of material to foster their creation.
This Bill will bring our legislation in line with international standards and progressive practices in countries such as South Korea, Singapore, United States, Israel, Malaysia, Philippines, and Sri Lanka to name a few countries that have recently adopted fair use. In these countries, creatives thrive and are not by any means disadvantaged by fair use.
In your view, how will the creative industry benefit from this Bill?
What this Bill will do is quantum leap South Africa into the 21st century to address the digital world and enable it to deal with the demands of the Fourth Industrial Revolution.
The current copyright law in South Africa does not protect the interests of creators, it protects the interests of profiteers. Creators work in industries where many of them are systematically disempowered through the use of apartheid-era legislation which favours historical and international monopolies which have control of money and power. The Bill will change this power imbalance and we applaud it for this by reinforcing the right to earn, own and create.
A key goal of Bill is to empower creators in their negotiations with labels, publishers and other intermediaries who profit from our work. No longer will middle men be able to buy our work without royalties or keep our rights forever. No longer will collective management agencies be able to collect royalties from our work without our control.
Are you guys associated with Professor Sean Flynn? If yes, what is his involvement in the organisation?
Professor Sean Flynn is the Director of the Program on Information Justice and Intellectual Property at American University Washington College of Law, a public interest think tank, and and chair of the Global Expert Network on Copyright User Rights, a coalition of academics and experts who provide research and analysis on copyright and the public interest. Professor Flynn has been working on public interest research projects in South Africa for over two decades, including as a Clerk on the Constitutional Court and through a series of projects with documentary filmmakers. Professor Flynn gives pro bono legal advice to ReCreate as part of PIJIP’s and the Global Expert Network’s public interest missions.
The are rumours that Recreate is funded by Google. Is that true. If not , please substantiate.
ReCreate is funded by a number of organisations, which includes Google, Open Society Foundation and contributions from a number of volunteers and organisations. We do not act under any instruction from any of our funders. Further, it is important to note, we do have fundamental disagreements on which we are challenging Google, specifically around their lack of transparency and the process for paying creators on platforms such as YouTube. We do not represent Google in any way.
Recreate is a transparent, membership endorsed organisation. We are comprised of writers, filmmakers, producers, photographers, actors, teachers, professors, students, learners, librarians, journalists, artists, poets, software developers, technology entrepreneurs, freedom of expression activists, disability activists, game developers, producers of accessible format materials, educational content producers and many other diverse South Africans. We work in coalition with other organisations that represent over half a million South Africans. See www.re-create.org.
In reality, those opposing this Bill are the well-resourced middlemen, profiteers and producers who currently make millions while exploited creatives can’t afford their rent.
