A consultative, development-focussed Copyright Review
For more information about why we need a review of the SA Copyright Act, please click on the blog tab above or click here: http://www.ipetitions.com/petition/1978_update/blog
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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 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.
Kerryn McKay, The African Commons Project
Tamsanqa Bolani, National Consumer Forum
South African non profit organisation concerned with the rights of local consumers.
The African Commons Project
Important information and resources about the SA Copyright Act can be found here, as well as a complementary competition aimed at South Africans entitled: 1978 ... what were YOU doing?
Consumers International A2K Network
This global organisation concerned with the rights of consumers recognises that intellectual property rights affect how consumers interact on technical and social levels.
The African Copyright and Access to Knowledge Project
This research project informs much of the material that was used in drafting the petition.