20 November 2018

Tearing down myths around the South African Copyright Amendment Bill

IFLA has been working over the past months to support its South African members in advocating around ongoing copyright reforms. These promise to offer librarians more legal certainty and opportunities to provide excellent services to their users, and so support education, research, and access to culture. 

Last Thursday's approval of the South African Copyright Amendment Bill in the Portfolio Committee on Trade and Industry represents a welcome step forwards. However, recognising that there are still a number of further stages to come, it is important to continue to maintain the momentum in favour of access, learning, innovation and heritage. 

In particular, it is important to provide clarification around a number of points raised in the discussions so far which, unfortunately, risk creting confusion. 

In particular, we would like to underline the following points:

Supporting libraries contributes to the health of the overall book sector

Libraries play an essential role not just in bringing books and other documents to the attention of the public, but also in developing the writers and researchers of the future. As such, in addition to the money paid to acquire content, libraries make a major contribution to marketing and discovery, as well as to the sustainability – and inclusiveness – of the book economy.  Many authors are librarians and many librarians are authors too. The strong support by many authors for libraries around the world bears testament to this.

The need for reforms that address exceptions and limitations for libraries, education and research is well known, and has long been recognised by the government

It has been forty years since South Africa’s copyright law regarding libraries, education and research was last updated, and twenty since the library sector has been calling for modernisation. While the original statement by the government may have been focused on artists and publishers, the inclusion of libraries, education and research in the bill constitutes firm recognition of the need to support learning and innovation and to positively address the UN sustainable development goals. 

The proposed reform is compatible with the Three-Step Test

As highlighted in legal advice formally provided by Dr Tobias Schonwetter to the committee recently, as well as that of the State Legal Counsel, the fair use clauses proposed in the bill are consistent with the Berne Convention. This opinion has also been confirmed by the State Legal Advisor. The fact that a growing number of countries internationally have implemented such provisions without facing challenges under the Dispute Settlement Mechanism at the WTO only confirms this. Elsewhere, the Australian Law Reform Commission has underlined that fair use is compatible with the Berne Convention. 

The proposed reform is compatible with the WIPO Marrakesh Treaty

Despite claims to the contrary, the Bill complies fully with the Marrakesh Treaty, notably as regards the need for those helping people with print disabilities to be prescribed, the need to carry out such activities on a non-profit basis. Indeed, this bill will enable South Africa to ratify the Treaty and provide a model for implementation of the Treaty to other countries.

Fair use is fair

There are many claims about the impact of fair use which unfortunately ignore the fact that it is based on a careful assessment of the impact on the rightholder. In particular, it is clear that such uses cannot cause unjustified prejudice to the interests of authors and publishers by limiting their ability to commercialise their works. Suggestions that it will lead to the systematic copying and making available of commercially available works are misleading and a distraction. The fact that rightholders frequently win cases in Fair Use jurisdictions shows that it provides adequate protections against prejudicial uses of works.  

Tackling the challenge of author incomes requires a holistic look at how revenues are earned

The situation faced by authors – in particular those who do not benefit from tenured positions in universities – is certainly a concern, not least to libraries. However, meaningful action to increase author incomes depends on taking a wider view at all of the factors at play, not least contracts (already the subject of legislation in the European Union), and other revenue streams (on which WIPO is launching work, and which is the subject of a major new research project in Australia).

Acknowledging that the publication of the government’s impact assessment would certainly help offer clarity, we believe that on most of the questions currently being raised by international and local rightsholder organisations as a reason for delaying progress on this essential legislation, there is already clarity, and so no need to hesitate further.

CLM (Committee on Copyright and other Legal Matters), Advocacy, Copyright, Copyright Limitations and Exceptions for Libraries & Archives, South Africa

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