Cory Doctorow, Electronic Frontier Foundation, Link (CC-BY)
Five years ago, South Africa embarked upon a long-overdue overhaul of its copyright system, and, as part of that process, the country incorporated some of the best elements of both U.S. and European copyright.
From the U.S.A., South Africa imported the flexible idea of fair use — a set of tests for when it’s okay to use others’ copyrighted work without permission. From the E.U., South Africa imported the idea of specific, enumerated exemptions for libraries, galleries, archives, museums, and researchers.
Both systems are important for preserving core human rights, including free expression, privacy, education, and access to knowledge; as well as important cultural and economic priorities such as the ability to build U.S.- and European-style industries that rely on flexibilities in copyright.
Taken together, the two systems are even better: the European system of enumerated exemptions gives a bedrock of certainty on which South Africans can stand, knowing for sure that they are legally permitted to make those uses. The U.S. system, meanwhile, future-proofs these exemptions by giving courts a framework with which to evaluate new uses involving technologies and practices that do not yet exist.
But as important as these systems are, and as effective as they’d be in combination, powerful rightsholder lobbies insisted that they should not be incorporated in South African law. Incredibly, the U.S. Trade Representative objected to elements of the South African law that were nearly identical to U.S. copyright, arguing that the freedoms Americans take for granted should not be enjoyed by South Africans.
Last week, South African President Cyril Ramaphosa alarmed human rights N.G.O.s and the digital rights community when he returned the draft copyright law to Parliament, striking out both the E.U.- and U.S.-style limitations and exceptions, arguing that they violated South Africa’s international obligations under the Berne Convention, which is incorporated into other agreements such as the WTO’s TRIPS Agreement and the WIPO Copyright Treaty.
President Ramaphosa has been misinformed. The copyright limitations and exceptions under consideration in South Africa are both lawful under international treaties and important to the human rights, cultural freedom, economic development, national sovereignty and self-determination of the South African nation, the South African people, and South African industry.
Today, EFF sent an open letter to The Honourable Ms. Thabi Modise, Speaker of South Africa’s National Assembly; His Excellency Mr. Cyril Ramaphosa, President of South Africa; Ms. Inze Neethling, Personal Assistant to Minister E. Patel, South African Department of Trade, Industry and Competition; and The Honourable Mr. Andre Hermans, Secretary of the Portfolio Committee on Trade and Industry of the Parliament of South Africa.
In our letter, we set out the legal basis for the U.S. fair use system’s compliance with international law, and the urgency of balancing South African copyright with limitations and exceptions that preserve the public interest.
This is an urgent matter. EFF is proud to partner with NGOs in South Africa and around the world in advocating for the public’s rights in copyright.
