SIPHO SITHOLE | The Copyright Amendment Bill doing more damage than what it purported to fix

This year marks almost 10 years since the Draft Amendment to the Copyright Act, No 98 of 1978, was first mooted. The first draft to the act was presented to all South Africans for their comment in 2015. Notwithstanding the many years of consultations, inputs and concerns raised by stakeholders, still fell short of their expectations. Instead, the bill is doing more damage than what it purported to fix.

When I did a Google search on what the views were, concerning the Copyright Amendment Bill, the search hit 96,700 results in only 0.42 seconds. Not a single commentator or analyst who cared to pen down their opinion found anything good to say about the implications of this bill. 

Writing for the Daily Maverick on November 2 2022, Pam Saxby was scathing in her opinion about the badly drafted bill and parliamentarians who seemed to be failing in doing "their homework and really get to grips with each challenging clause of each complex bill". 

Other organisations representing the sector like the SA Music Rights Organisation, SA Music Performance Rights Association and Recording Industry of SA, and even prominent figures in the industry, alerted the law makers on the pitfalls of the bill. 

As recently as February 22, Academic and Non-Fiction Association of SA and others, via Change.Org, ran a petition urging the National Assembly to reject the bill, citing "It will cause lasting harm to the very people it claims to protect". This fell on deaf ears.

It was in 2015 that the Draft Amendment to the Copyright Act No 98 of 1978 was first published for comment by the department of trade and industry, starting with a multi-stakeholder conference, a necessary process to get it passed by parliament and enacted into law.

A process which started in 2015, and further consultations in 2017 and thereafter, before being sent to the president of the country for his consideration, still did not yield the intended results. This piece of legislation was never supported by the very same stakeholders being consulted.

When the bill was first sent to President Cyril Ramaphosa for assent on March 28 2019, he sat on it for more than a year. 

During this period, submission, appeals and petitions were sent to parliament and to the president not to sign the bill. The main bone of contention being fair use, where it is argued that, just like the US doctrine of copyright statue, it must be permissible to use limited portions of artistic or creative work. 

Failure to deal with the deep-seated implications of this doctrine, a failure epitomised by a failure to conduct a proper Social and Economic Impact Assessment (SEIA), opens South African creators to huge exploitation. When loosely interpreted, fair use means any creative in any country can use a portion of hook chorus of a song by a South African composer and argue that the copyright owner has no claim to such future income of the portion used. 

Secondly, unlike in the US, where there already is jurisprudence on such matters for well more than 200 years with serious statutory and sometimes punitive damages when an infringement occurs, SA has not developed such guardrails. 

It could be argued that regulations are yet to be developed on how the bill will be applied once it becomes law. With the problems and lack of deep understanding of such complex copyright legislation, there is no guarantee that such regulations will ensure protection of creators’ work.

The International Confederation of Societies of Authors and Composers (CISAC) also threw its lot in sensitising the legislators in SA on the dangers of this bill. Apart from the already addressed fair use implications, CISAC pointed out the long and open-ended list of exceptions, which it argued that "this excessive focus on exceptions, instead of the rights of creators, is not what the function of a new copyright law should be, as it devalues works, opening many new uses for which creators will no longer have the right to earn royalties".

Much as the bill has accommodated those with sight and hearing disabilities, it has veered off course from its original good intentions to benefit creatives.

Besides the outcry and appeal by representatives of authors and publishers around the world, both houses of parliament went ahead and passed the bill, amending the 1978 Copyright Act, on February 29. It now awaits the president for assent. Interesting to note is that after the ANC caucus gave its members the marching orders to vote for the adoption of the bill, ANC secretary-general Fikile Mbalula is now crying foul. Electioneering will surprise you.

My appeal to Ramaphosa is that, the cultural and creative industry is an economy that contributes immensely to the economy, while creating millions of jobs. This sector is not for electioneering.

• Dr Sithole is a cultural strategist and analyst, and a lecture at Howard University, Washington DC, in the department of world languages and cultures.