infoJustice

Letter from South African and American Academics to Ms Meshendri Padayachi
South Africa Department of Trade and Industry
– Joint Academic Comment (PDF)
– Accompanying Table (PDF)

We write in response to your request for public comments on South Africa’s planned copyright legislation reform. We’re grateful for the chance to make a contribution in support of this extraordinary effort on the part of the Department of Trade and Industry to modernize South African copyright law and – in so doing – to make South Africa an international leader in the field at a critical moment in its history.

We enclose (1) a separate statement on Balanced Copyright and the Importance of Flexible Exceptions, and (2) Joint Academic Comments on the South African Copyright Amendment Bill, 2015 in table form. Excerpts of the provisions of other laws cited in our comments and available for your research purposes can be found in Masterlist: Limitations and Exceptions Provisions in National Laws, available at http://infojustice.org/flexible-use. We also make extensive reference to EIFL’s Draft Law On Copyright Including Model Exceptions And Limitations For Libraries And Their Users (2014), available at http://www.eifl.net/resources/eifl-draft-law-copyright-including-model-exceptions-and-limitations-libraries-and-their. The University of Cape Town Intellectual Property Unit is separately providing a clean version of our proposed sections 12 and 12A, along with other of our proposals. We have also shared our draft comments with other organizations in South Africa, who will be submitting separate comments with their views on both our proposals and the DTI Bill.

The Joint Academic Comments we attach herein were created through a collaborative comment and review process by an international team of academics from South Africa and the U.S.A., undersigned below. We solicited comments and proposals from the Global Expert Network on Copyright User Rights, whose members are listed at http://infojustice.org/flexible-use. The comments and proposals are informed by a workshop hosted with Coenraad Visser, University of South Africa, on August 11, 2015. At the workshop we heard a variety of interests, concerns and questions from a broad range of stakeholders, as well as from officials in the South African Department of Trade and Industry, Department of Arts and Culture, Department of Higher Education and Training, Department of Science & Technology, National Film and Video Foundation, the National Film, Video & Sound Archives, and the National Research Foundation. The table includes references to the relevant language of the Bill (or, in some cases, the present Act) in the left-hand column, narrative comments in the centre column, and amended language we propose in the right-hand one.

As reflected in our suggestions for a substantive Preamble to the revised Act, we are in agreement on the following basic points about the direction of South Africa’s legislative reform.

• First, that the goal of the reform should be to achieve an appropriate balance between the rights of authors and those of users and the public as a means to promote creativity, innovation and the cultural arts and expand opportunity to access and use information to promote the full development of all South Africans.
• Second, that the means by which such balance can be achieved is the inclusion in revised law of both strong protections for the fruits of creative labour and robust exceptions that assure access to essential information for the next generations of South African students, creators, and innovators.

In the attached documents, we detail specific adjustments in language and structure of the Copyright Act that we believe will better promote these goals. Ultimately, we believe that the final bill should reflect the following principles to enable it to be considered a modern copyright law fit for the digital age.

1. First and foremost, as we describe in greater detail in the attached statement, the law should be amended to include a flexible exception that can be applied to any use not specifically enabled by enumerated limitations and exceptions, and is applied through a flexible proportionality test that balances factors such as nature and importance of the new use, the interests of the author or copyright holder, and the impacts on third parties and society at large.
2. To assure against the overprotection of fundamental building blocks of knowledge, the law should follow the modern global trend and refer to an originality threshold that excludes copyright protection for works of minimal creative or expressive value, including to ideas as such, procedures, methods of operation or mathematical concepts, and, in the case of computer programs, to interface specifications.
3. To assure the development of robust, fair markets for information, the law should minimize state ownership of copyright, including for state-funded works (where the makers of works have a strong motivation to make them publicly available, and the state can generally meet its needs with a full license), and for orphan works (where state ownership is likely to decrease, rather than enable, use of such works).
4. Because authors have the strongest economic and non-economic motives to share their productions with others, the law should maximize the ability of all authors to own rights to works they create, including where such work is commissioned by another but the commissioning party does not direct the creative choices of the author.
5. To promote certainty, in addition to general exceptions the law should include as well specific exceptions with regard to common and socially significant uses of copyrighted works, including for quotation, for uses by libraries and archives, for people with disabilities, and other purposes. It is also important that the relationship between specific exceptions and a general, flexible exception be understood as fully complementary, rather than competitive or exclusive.
6. The law should enable the making of accessible copies of any work for people with any disability. Regardless of its decision concerning ratification of the Marrakesh Treaty for the Visually Impaired, South Africa has an opportunity to be one of the first countries to meet the standards that agreement incorporates, and to surpass them by giving recognition to the needs of the deaf as well as the blind and other print-disabled communities.
7. To assure that in years to come South Africa can claim its place as a centre of technological innovation (in both hardware and software) the law should include an exception for transient copies of works that are necessary to carry on technological processes, including on the internet.
8. In recognition of the growing trend among creators to share information widely rather than attempting to restrict its circulation, the law should promote, and not hamper, the use of public (or “open”) licenses, including those that are employed in the FLOSS software movement, and the various Creative Commons licenses. In addition, sharing of publications with the public should be required it where the content is government funded.
9. The law should include a right of panorama that applies to uses of any image or object (including buildings) located in a public place. This right should apply to such use in any work, including works explaining, commenting on or criticizing the work. At our workshop, this was identified as a crucial concern of photographers, journalists, filmmakers and information portals like Wikipedia.
10. Whatever the array of limitations and exceptions represented in the revised Act, there should be a parallel exception to anti-circumvention provisions.
    Authorising the use of a locked digital product for any purpose permitted under copyright law will ensure simplicity and consistency of application, and will guarantee that users will not be caught in a “double bind,” i.e. prohibited by the anti-circumvention provisions from undertaking otherwise legal (and socially beneficial) actions.
11. While recognizing the problem of so-called “orphan works,” we recommend that the issue be subjected to further study rather than made the topic of legislation at this time. In the mean time, a specific exception for use of orphan works by libraries and similar institutions, and a flexible exception that can apply to other uses, should be sufficient to overcome immediate copyright barriers in this area.
12. Criminal offenses should be limited to exceptional cases involving intentional and commercial infringement, so as to avoid chilling legitimate educational, creative and innovative activities in South Africa.

We thank you for your time and effort and invite you to contact us to lend any other assistance we can.

South Africa

• Caroline Ncube, University of Cape Town
• Coenraad Visser, University of South Africa
• Tobias Schonwetter, University of Cape Town IP Unit
• Denise Nicholson, University of the Witwatersrand, Library
• Andrew Rens, Duke University Law School

USA

• Peter Jaszi, American University Washington College of Law
• Sean Flynn, American University Washington College of Law
• Brandon Butler, American University Washington College of Law,
• Rebecca Tushnet Georgetown University, Rebecca Tushnet
• Jonathan Band, Policy Bandwidth

This document was supported by a number of organisations, including Universities South Africa (formerly HESA), International Federation of Library Associations and Institutions (IFLA), Electronic Information for Libraries (eIFL), Australian Digital Alliance and Australian Libraries Copyright Commission, the US Library Copyright Alliance, German Coalition for Action “Copyright for Education and Research”,  African Union for the Blind (relating to persons with disabilities), Durban University of Technology and the University of the Western Cape.