infoJustice

Tusi Fokane and Ben Cashdan

A new organization of South African creators has formed to press their views in favor of balanced copyright provisions in the ongoing amendment process.

ReCreateZA (www.re-createza.org) represents a broad coalition of creatives, including “writers, filmmakers, photographers, educational content producers, software and video game developers, technology entrepreneurs, artists, poets, producers of accessible format materials and other South African creators.”

ReCreateZA was formed to advocate for both the interests of owning copyright in their own works, and in fairly using copyrighted materials in the creation of new works. Their mission statement explains:

As much as we are creators, we are users of existing cultural products. Currently our work can be blocked through censorship by those who claim to own our culture. Moreover we often do not not own the work we create. And many of us have been disadvantaged by an exploitative system which fails to pay us for our work.

The organization also represents the interests of South African creators in the innovation economy. They recount:

Growing the digital economy requires innovation. South Africa is at a disadvantage to other countries with flexible copyright laws that support creativity.

ReCreateZA is an advocacy organization, with three key objectives within the copyright reform being considered by the South African Parliament:

We call on Government to include in the ongoing copyright reform three key issues to enable us to create the next generation of South African content for the world.

THE RIGHT TO CREATE.

Current law lacks many modern exceptions to copyright.  We need these exceptions to make original work and to exercise our freedom of expression. We lack the right to:

• • Adapt to the future
  • Create accessible copies for people with disabilities
  • Remix, transform and re-interpret
  • Research, including through data mining, indexing and search
  • Create educational works
  • Digital archiving
  • Use works in public places
  • Incidental use of background content
  • Parody and satire

We call on government to enact all of these creator rights, either directly or by an open fair use or fair dealing exception.  We also need a fair use test to ensure that all uses of works are fair to the creator.

THE RIGHT TO OWN.

Current law makes the commissioner of many works the default owner of our art. This restricts ability of many to distribute, re-mix and profit. The Act must be amended to make independent creators the default owners of copyright in all the works they create.

THE RIGHT TO EARN.

Current law does not adequately protect us against abuses and exploitation.  Collective management organisations (CMOs) have formed monopolies. They charge others for our work and claim to “represent” us. But we lack power to act as members in their governance.  CMOs must have a fiduciary duty to creators, be subject to member governance, and be subject to government oversight on the reasonableness of their expenditure and payouts.

Network members attended the latest meeting of the Parliamentary Portfolio Committee on the pending Copyright Amendment Act. In that meeting, the Department of Arts and Culture presented its views on the bill, including a response to the Department of Trade and Industry proposal that issues in the draft bill not included in the Farlam Report on rights of musicians (https://www.gov.za/sites/www.gov.za/files/CRC%20REPORT.pdf) be removed from the bill and put in a second phase. In effect, this proposal could lead to the removal of all of the creator rights – including an innovative fair use right – that ReCreate supports.

In Parliament, the Department of Arts and Culture supported the DTI proposal to put in place a 2-stage approach. It also opposed the inclusion of a fair use right in either phase, explaining:

Fair use by its nature is open-ended and it creates uncertainties in the management of rights. If adopted, this model will permit uncontrollable and unreasonable access to copyright materials resulting into reduction of real income for copyright owners. Actually, only less than 10 of the 176 members of the Berne Convention adopted the fair use model. Policy makers have labelled the Fair Use Model – The Right to Hire a Lawyer.

Adopting fair use is abdicating responsibility and giving it to courts. It will be better for parliament to consider what specific exceptions are needed.

Adopting the fair use model into our legislation would be an undercut for content creators and it will only serve the interest of big corporations especially Wireless Service Providers.

The opposition to fair use came as a surprise to ReCreateZA co-chair Rehad Desai, who interjected after the end of the presentation.

Indeed, the Department of Arts and Culture had previously endorsed fair use in its 2011 report (p.53) http://www.wipo.int/export/sites/www/copyright/en/performance/pdf/econ_contribution_cr_za.pdf :

As exceptions have the potentials to create value (Gowers Review, 2006)53 we suggest that DTI should review the Copyright Act in order to introduce limitations in accordance with the Berne Convention three steps test (article 9(2)) and with the fair use provision and to clarify clauses as necessary.

ReCreateZA strongly opposes the exclusion of fair use form the bill, which was included in the last several versions of the published draft. ReCreateZA describes fair use among issues “of vital and urgent importance” that “must not be postponed.” Instead, it advocates that if “government decides to put off finalising some aspects of the copyright law, the interim arrangement must include fair use or open fair dealing.”

We believe the opposition to our rights is based on false claims about negative impact. If there is to be an interim phase, it should be used to introduce a trial period of fair use to demonstrate that these fears are false.

Up to now, the creative industries in South Africa have been “represented” in the legislative process by collective management organizations that have opposed fair use and do not always have actual creator interests – as opposed to royalty collection interests – at heart. It is hoped by ReCreateZA’s members that their organization can add some balance to the debate, and to the law that emerges from it.