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The National Consumer Forum (NCF) and The
African Commons Project (TACP), two registered Section 21 companies
operating within South Africa, on behalf of South African consumers
hereby request the Minister to urgently consider a consultative,
transparent review of the current Copyright Act.

The Act,
initially drafted more than 32 years ago, should be reviewed in light of
the digital innovations that have occurred within the last three
decades which have dramatically altered the way we create, share,
distribute and use information materials and cultural products.

The
limited monopoly conferred to rights-holders by copyright has the
potential, in the absence of adequate legal flexibilities (especially
copyright limitations and exceptions) to limit a number of
important human rights enshrined in our Bill of Rights, notably
the right to receive and impart education, the right to participate in
cultural life, the right to education and the right to equality.  For
example, the current Copyright Act does not contain any limitations or
exceptions to allow permission-free adaption of copyrighted materials
for visually-impaired persons, and this gap in the law
unconstitutionally infringes the constitutional right to equality of
visually-impaired persons.

We believe that the human rights
dimensions of access to copyright protected materials are critical ones
which have been largely overlooked.  Empowering ordinary South
Africans to access knowledge, be educated and express themselves
is just as important to the development of the country, and in many
respects even more important, as protection of rights-holder economic
interests, particularly given that a large portion of copyright
royalties paid in South Africa go to corporations based in the global
North.

We believe that whilst there should always be
consideration for the rights of the creators and owners of information
and cultural products, so too should there be consideration for the rights
of consumers who interact with these information and cultural
products on social, cultural and economic levels.

We believe that
the Copyright Act is currently too ambiguous in many areas, making the
Act difficult to interpret for the digital age, both for creators and
for consumers. We believe that this ambiguity has been leveraged by
multi-national corporations and private enterprises to:

• attempt
  to develop their own digital rights management (DRM) processes which
  lock down digital content and impede certain rights and actions of
  consumers (example such as fair dealing uses) that are otherwise
  permissable under the current Copyright Act; and

• call on more
  stringent protections and penalties to be included in the Copyright Act
  in an effort to broaden the net of criminalised actions in relation to
  creation and consumption of cultural products.

We, the
undersigned request that a consultative, inclusive review of the current
Copyright Act be undertaken, which includes consultation and discussion
with a diverse range of stakeholders and is not limited to only those
parties who have proprietary rights-holder economic interests at stake
in the shaping of the copyright environment.

We, the undersigned
request that when reviewing the Copyright Act, it should reflect the
needs of a developing country, and that it is a truly South African
Copyright Act.

We, the undersigned request that the following
aspects of the Copyright Act be urgently considered and interrogated
from multiple viewpoints:

1. Retain the current standard
   50-year copyright term mandated by international instruments: 
   preserving the current term, and resisting the push from some developed
   countries for a 70-year term or longer, will enable public domain access
   to materials for South Africans after the expiry of the 50-year
   copyright terms on the materials. Make a policy commitment not to extend
   copyright terms at all beyond their current length.
2. Enable
   access for the visually-disabled: an amendment which removes
   barriers to access to disabled persons should be considered, such as
   introduction of a provision that allows permission-free conversion of
   learning materials into Braille or audio formats.
3. Review and
   amend copyright exceptions and limitations: many of the current
   exceptions and limitations in the Act are ambiguous and/or outdated. For
   example, none of the exceptions and limitations provides for the
   realities of the digital age, in which the dynamics of reproduction have
   been transformed and the simple act of opening a computer file is
   potentially an act of illegal copying. As well, the Act needs explicit
   provisions for libraries, archives, educators and learners, and
   consideration should be given to introduction of a flexible fair use
   limitation in place of the narrower fair dealing currently in the Act.
4. Address
   how to use orphan works: there should be a clause which allows for
   permission-free use of a copyrighted work on reasonable terms when the
   rights holder cannot be located to obtain permission. Such a provision
   would encourage South Africans to make use of our own cultural heritage.
5. Ensure
   harmonisation between different acts and policies: some conflicts
   are apparent between the Electronic Communications and Transactions Act
   (ECT Act 25 of 2002) and the Copyright Act, and these conflicts need to
   be addressed. For example, the ECT Act blocks circumvention by users of
   technological protection measures (TPMs) on digital materials, even when
   circumvention is for the purposes of a permission-free use (eg, fair
   dealing) that is allowed under the Copyright Act. Also, a review is
   necessary of the Copyright Act and ECT Act to ensure that these acts do
   not contradict the government's Policy on Free and Open Source Software
   (FOSS), which by its nature allows certain freedoms in relation to use
   and adaptation of digital content.
6. Examine the scope of
   protection in order to promote the public domain: the public domain,
   an imperative/vital pool of non-copyrighted resources that encourages
   learning and innovation by South Africans, needs to be nurtured. To this
   end, retaining the internationally-mandated 50-year copyright term (as
   mentioned in first point above) is important, with no  consideration of
   extending this. As well, any review of the Copyright Act must ensure
   that other elements of scope, such as the types of works that are
   protected, and the types of exclusive rights automatically given to
   rights-holders, do not presently exceed, or get amended in a way that
   exceeds  the norms specified in international instruments.
   

We,
the undersigned would like to ask that our submission be duly
considered by the Department of Trade and Industry and that a response
to this submission be given to the NCF.

We acknowledge that the Department has had some fruitful meetings with the South African National Council for the Blind and fellow civil society members, who are requesting a transparent, open copyright review.  Thus, building upon this positive discussion, we would also request a timely establishment by either the Ministry or the Department of a Copyright Act consultative review process, including a widely announced workshop or meeting with civil society within a specified period. 

Yours sincerely

Kerryn McKay, The African Commons Project
Tamsanqa Bolani, National Consumer Forum

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