Copyright bill will breach global standards and sell creative sector down the river
SA will damage its own economic and cultural fabric by passing a defective copyright bill in breach of international standards.
Just a couple of months away from national elections that signal a new chapter in SA, the department of trade & industry (DTI) is rushing through parliament a Copyright Amendment Bill in the name of protecting authors, composers, musicians and artists.
The problem is that the bill will achieve the opposite of what the DTI is trying for. It will sell the creative sector down the river and, if anything, benefit big tech companies that want to have a free ride on creative content. The bill will also cause SA to breach its international obligations, so the process as well as the outcome of adopting the bill will cause unnecessary diplomatic stress.
You may say: "Why should I care, we have so many other problems?" Or: "What is copyright anyway?" Or: "SA first, who cares about international copyright laws?"
Let me try and answer these valid questions.
You should care if you care for your children's job opportunities and for SA's future. Rapid technological progress means fierce competition for knowledge and knowledge workers, people who know how to thrive in and leverage the fourth industrial revolution with artificial intelligence and the internet of things.
South Africans will simply be denied access to the best jobs around the world if creativity and investment in copyright-protected content are unavailable due to bad legislation or over-regulation. The net effect will be that jobs existing will be lost to others and jobs that do not exist as yet will fail to land on South African shores.
What is "copyright"? Copyright is a form of intellectual property that protects expressions of ideas and benefits those who provide a diversity of cultural resources that are valuable in society.
These content items are determinants of the future success of any nation or region to become a strong player in the knowledge economy. Copyright is the rock on which both creative people (writers, musicians, actors, filmmakers) and producers (film, TV, music and book publishers, software houses) stand, the currency in which they trade.
"Access" in the 21st century is no longer just access to information but access to creative opportunity: the chance to express yourself and showcase your creativity and earn a living from it.
Adoption of the copyright bill will make it a lot harder for local publishers to publish authors, let alone offer decent advances or royalties, because the bill, with its overbroad exceptions that allow free copying, creates so much uncertainty over what copyright really protects.
The bill also threatens to invalidate contracts, so much so that record companies will be forced to turn many more new artists down. Ministerial regulations, if ever drafted, will force rigid, bureaucratic and inflexible terms and conditions over which parties will have no say. So, better to wait for those terms than to offer a fairly negotiated set of terms and conditions or agree on contracts in other countries for other audiences - a knowledge emigration in the making.
Agreements will also be limited to 25 years, when the average writer needs four to six books to break through and perhaps only that sixth book becomes a long-seller and the basis for a film or TV series. By then all the years spent on promoting the first five books will have been wasted and the time to recoup investment that much shorter.
What is wrong with exceptions from copyright, allowing "free access"?
Copyright should be the mechanism by which readers, viewers and listeners pay for books, films, music and other creative productions and their dissemination. "Free access" through exceptions or forced free use is in truth an "author pays" model. If authors choose to donate their work, that is admirable, but is different from taking it from them - which is what the copyright bill is doing in effect by legislating unworkable terms for contracts and peppering the copyright of authors with so many exceptions that they are the rule.
Why are international standards important?
First, let me spell out what "breaching international standards" means in practice: the bill, translated into the real world, will damage filmmakers, musicians, authors, TV productions and software businesses by diminishing access to publishing for authors locally, forcing them to publish for overseas audiences; it will reduce opportunities to receive royalties for future music and cause havoc for those composers and musicians who do in fact receive royalties now.
Second, respecting international standards and putting SA first actually go together. For SA to come "first", it needs to have a first-rate, up-to-date copyright act that benefits the creative sector. Having sound laws on copyright is simply the price of entry a nation pays to compete for talent. Respecting world standards of copyright protection in the digital world is no contradiction to offering world-class opportunities for creators and knowledge workers: it is a precondition.
Ironically, the bill's contradicting of international norms is directly contrary to the cabinet's aspirations as decided on December 5 2018 - a decision to ratify three treaties on copyright (known as WCT, WPPT and the Beijing Treaty). Also, in the words of the National Development Plan: "The creative sector should be supported by government and by the private sector as a sector that has great potential for growth and job creation over and above its role of facilitating dialogue for nation building." But the DTI, unperturbed, ploughs on with its defective copyright bill that goes the other way.
You may say: "So what? Why should I care when SA has so many other issues to address?"
The answer is that everything in this 21st century is connected: it is the key to employment, the economy, progress and - crucially for SA - a constructive way out of the identity politics and ghosts of SA's past. All depends on getting SA's copyright legislation right. Withdraw the bill and redraft a bill that respects international standards and benefits creators, producers and society.
• Lavizzari is an attorney specialising in copyright law, licensing and litigation