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South African Copyright Review is Overdue, Pioneering, and in Parts Completely Absurd

August 14, 2015

South African Copyright Review is Overdue, Pioneering, and in Parts Completely Absurd

In our campaign against the TPP's Copyright Trap, we are fighting back against a proposal to extend the term of copyright in six countries around the Pacific rim from 50 to 70 years after the death of the author. But there is one country that is currently proposing to extend the copyright term to last even a bit longer than that. To be precise, as part of a wholesale review of its Copyright Act, South Africa is proposing that copyright should last... forever. This goes one better than Jack Valenti of the MPAA asked for—he only asked Congress to extend copyright to last forever less one day.

Admittedly, under this proposal the royalties for use of public domain works will not go to the original copyright owner, but to the government. Although unusual, this isn't entirely unheard of. Elsewhere in Africa, there are similar provisions bestowing a copyright-like right in public domain works upon the government—for example Uganda, Egypt and Senegal [PDF] all require payment of a license fee to use public domain material commercially. Even in the United Kingdom, the Hospital for Sick Children, Great Ormond Street, London, has been given a perpetual right to royalties for the performance of Peter Pan.

But South Africa proposes to go even further, not only granting the government copyright over public domain works, but even over orphan works, which are works which remain in copyright but for which the creator of the work or their successor in title cannot be located:

Ownership of any copyright whose owner cannot be located, is unknown, or is deceased shall vest in the state ... the term of such copyright shall be perpetual.

This is absurd. We fully support the development of creative solutions to the orphan works problem, and transferring copyright in such works to the government may be one way to implement such a solution. But even if so, making that copyright perpetual is completely unnecessary, and more than that, abhorrent to the very nature of copyright as a limited monopoly right.

Fair Use... If We Agree

As most of the copyright content that we consume has shifted into the digital realm, the piecemeal copyright limitations and exceptions found in many countries cannot keep up. Fair use doesn't have the same problem, because by its nature it can adapt to changes in technology. Thus fair use is slowly but surely making its way around the world, and South Africa is the latest country to consider adopting it into its copyright law.

Although this is good news, the proposed South African fair use right contains so many carve-outs, that it ends up full of holes. The most significant carve-out is educational use of written material published online, apparently because there is an existing (but comparatively complex and costly) procedure allowing educational users to apply for a license for such material from South Africa's Intellectual Property Tribunal. For other educational uses, such as of multimedia material, the draft law requires the user to seek the permission of the copyright owner in order to exercise the "fair use" (of course, fair use with permission is no fair use at all; it's just an ordinary copyright license).

Libraries and archives are given much the same treatment: they are allowed to shift the format of works in their collections, but only if they ask permission first. If they make a reasonable attempt to secure permission but can't obtain it, then they are allowed to go ahead anyway, and it is an offense for the rightsholder to unreasonably refuse permission; but this is a charade that ought to be unnecessary to begin with. There is no circumstance in which a rightsholder ought to be entitled to prevent a library or archive from making a preservation copy of a work in its collection, no matter whether the format is shifted or not. This undermines the benefit of fair use, since mass digitization can involve millions of works and quickly becomes impractical if it requires asking permission of every copyright owner.

Apart from educators, libraries and archives, most other cases of fair use don't appear to require the user to seek rightsholders' permission, but the Act limits most of these cases (including criticism, comment, news reporting, judicial proceedings, professional advice, and teaching) to non-commercial use. Although whether use is commercial is an important factor in weighing up a fair use claim, it should never be determinative. For example, fair use would be next to worthless for journalists and for professional advisers if they could only make use of it in non-commercial activities.

Beating the DRM Drum

So far, the proposed amended South African Copyright Act stacks up rather poorly against U.S. copyright law. But there are some gems hidden away in the text that greatly improve on U.S. law. One of the simplest of these is a section that makes it unlawful for copyright owners to steal back rights that the Copyright Act grants to users, for example by small print in a license agreement. Even without such a stipulation it is far from certain that a court would enforce a license condition that prevented you from exercising your fair dealing rights, but this proposal for the South African Copyright Act puts it beyond doubt.

Another respect in which this proposal improves on U.S. law is in the treatment of DRM. The DMCA instituted a regime in which it was usually unlawful to circumvent DRM even in order to exercise your fair use rights (unless an exception had been authorized under the triennial rulemaking process), and even prevented third parties from providing the tools or services that you might need to help you to perform such circumvention.

In contrast the South African Act, as proposed to be amended, explicitly authorizes DRM circumvention for any purpose that is allowed by a copyright exception (though the fair use right isn't explicitly included, which we'd like to see fixed). The offense of supplying tools or services for DRM circumvention is new to the proposed amended Act, and although we oppose its inclusion at all, it is still narrower than the U.S. equivalent, being limited to cases where the supplier knows or has reason to believe that they will be assisting in copyright infringement.

Given these relatively favorable provisions, it is perturbing to find one proposed section that goes in the opposite direction; potentially requiring libraries to add DRM to works that they supply to patrons in digital form, in order that those works "cannot be altered or modified". We have drafted a submission [PDF] to the South African lawmakers drawing their attention to this adverse provision, and to all of the other provisions described above, amongst others.

The public consultation on the South African Copyright Act amendments, which has already attracted intense interest from local stakeholders, remains open until August 27. If you are South African, now is the time to speak up in support of the ambitious and overdue reforms that the review heralds—such as the fair use right and the new orphan works regime—but also to caution the government against the dangerously defective manner in which these reforms are currently implemented in the language of the draft bill.

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