Denise R. Nicholson, Scholarly Communications Librarian at the University of the Witwatersrand, Johannesburg and Teresa Hackett, EIFL Copyright and Libraries Programme Manager outline recent developments and the current status of the Bill.
On 28th March 2019, South Africa’s Copyright Amendment Bill was approved by the upper house of Parliament in South Africa, the National Council of Provinces, clearing the way for the President to sign the Bill into law.
The long awaited Bill brings the 1978 Copyright Act, adopted in a pre-internet era, into the digital age – rules regarding libraries, archives, education and research had never been updated during this time. But one year on, the Bill has not been signed into law.
A lot of support and strong opposition
While there is a lot of support for the Copyright Amendment Bill locally, regionally and internationally, there is also strong opposition from rights-holders, mainly international and local publishing and entertainment industries, and collective management organisations.
For example, in April 2019, the International Intellectual Property Alliance (IIPA), an umbrella organisation of five US-based trade associations from multinational film, music, software and publishing industries, complained to the US Trade Representative (USTR) that the Copyright Amendment Bill fails to provide “adequate and effective protection of US copyrights”.
The complaint triggered a review by USTR of South Africa’s place in its largest preferential trade scheme for developing countries, worth an estimated $2.38 billion to the South African economy. During the review, over 50 written submissions were received by USTR and a public hearing for stakeholders took place on 31 January 2020 in Washington DC. Over three-quarters of the submissions were supportive of the Government of South Africa.
In early March 2020, USTR representatives visited South Africa to conduct follow-up interviews with stakeholders. The review process is expected to continue for some months to come.
At the same time, the Constitution of South Africa states that the President must either assent to and sign a Bill, or if there are reservations about the constitutionality of a Bill, to refer it back to the National Assembly for re-consideration. Neither has happened.
First anniversary of the Bill’s approval
In
February 2020, as the first anniversary of the Bill was approaching,
beneficiaries were growing impatient at the delay. A group of teachers, students,
librarians, filmmakers, actors, musicians, game developers, journalists, and
freedom of expression activists made a public request to the
President to sign the bill into law.
Blind South Africa, that advocates for the rights of blind and visually
impaired people, pleaded in a letter to the President for the Bill’s assent and warned of
High Court action to compel the President to exercise his Constitutional duties.
The Bill provides new exceptions for people with disabilities, and it paves the
way for South Africa to join the Marrakesh Treaty for persons with print
disabilities.
The Copyright Amendment Bill in unprecedented times
In recent weeks, unprecedented events have overtaken the national agenda. South Africa, like the rest of the world, finds itself in the grip of the COVID-19 global pandemic. Emergency measures have been undertaken to protect public health and to stop the spread of the virus.
Universities, schools and libraries across South Africa have closed. And institutions, students and faculty, like in so many other countries, are quickly adjusting to the move to online teaching and learning.
There are several provisions in the Copyright Amendment Bill that would have supported librarians, educators and researchers at this difficult time.
The educational and research exceptions, for example, would help tertiary institutions in offering their courses via online platforms during the lockdown period. The library and archive exceptions would enable online access and knowledge-sharing to collections for faculty and students. The exceptions for people with disabilities would enable access to reading material in accessible formats, especially information about COVID-19, as well as providing learning and leisure material while restrictions on movement are in place. And the fair use provision would provide legal flexibility to institutions setting up emergency remote teaching and research activities.
A letter on 26th March 2020 by Creative Commons South Africa to the President stressed the importance of the additional limitations and exceptions in the Bill in addressing access issues during the COVID-19 pandemic.
Naturally, the focus right now by everyone is on managing the new situation, learning how to work and study remotely while mitigating against the digital divide, and above all staying safe in our communities.
When the global pandemic abates, and government business eventually starts up again, we do hope that the Copyright Amendment Bill will have its place on the agenda, and finally will be signed.
In the meantime, stay safe and let us work together to overcome the global pandemic challenge.
