Category US Domestic Legislation

Taming the upload filters: Pre-flagging vs. match and flag

[Paul Keller] One of the most important elements of any implementation of Article 17 will be how platforms can reconcile the use of automated content filtering with the requirement not to prevent the availability of legitimate uploads. While most implementation proposals that we have seen so far are silent on this crucial question, both the German discussion proposal and the Commission’s consultation proposal contain specific mechanisms that are intended to ensure that automated content filters do not block legitimate uploads, and that uploads are subject to human review if they are not obviously/likely infringing.

An Open Letter to the Government of South Africa on the Need to Protect Human Rights in Copyright

[Cory Doctorow] Five years ago, South Africa embarked upon a long-overdue overhaul of its copyright system, and, as part of that process, the country incorporated some of the best elements of both U.S. and European copyright. From the U.S.A., South Africa imported the flexible idea of fair use -- a set of tests for when it's okay to use others' copyrighted work without permission. From the E.U., South Africa imported the idea of specific, enumerated exemptions for libraries, galleries, archives, museums, and researchers. Both systems are important for preserving core human rights, including free expression, privacy, education, and access to knowledge; as well as important cultural and economic priorities such as the ability to build U.S.- and European-style industries that rely on flexibilities in copyright.

SOUTH AFRICA’S COPYRIGHT AMENDMENT BILL – 5 YEARS ON

[Denise Nicholson] ... On 16 June 2020, the President elected to refer the Bill back to Parliament on the grounds of “constitutional concerns”. What is very disappointing and surprising is that the President ignored a Senior Counsel’s Opinion on the Bill, sent to his office, as well as hundreds of submissions, letters, messages, and public presentations in favour of these exceptions throughout the legislative process. Instead, and perhaps under pressure, he sent the Bill back based purely on one submission to Parliament made by a Senior Counsel on behalf of his client, the Copyright Coalition of South Africa. He failed to give his own presidential reasons or opinion as to why issues raised were likely to be "unconstitutional”.

South Africa Parliament Moves Up Copyright Hearing to Tuesday, August 18

[Sean Flynn] South Africa’s Portfolio Committee on Trade and Industry, (National Assembly), announced to stakeholders today that it is moving the scheduled briefing on the Copyright and the Performers’ Protection Amendment Bills to Tuesday August 18 at 9:00-12:00, via a virtual meeting platform. The meeting is scheduled to include briefings by the Department of Trade, Industry and Competition and by the Parliamentary Legal Advisor on the remitted Copyright and of the Performers’ Protection Amendment Bills. According to the Portfolio Comittee’s announcement, the presentations will discuss “the constitutionality of specific clauses and procedural deficiencies and on the process forward.”

ON A KNIFE EDGE? SOUTH AFRICA’S NEW COPYRIGHT LAW

[EIFL] The Copyright Amendment Bill [B13B - 2017] had been sitting on the desk of President Cyril Ramaphosa for over a year waiting to be signed into law. In June 2020, when Blind South Africa issued a legal challenge over the delay, the President acted. But instead of signing the Bill that had been approved by the legislature, the President used his prerogative to return it to parliament citing constitutional concerns with certain aspects, including new exceptions for libraries, education and persons with disabilities. The President’s rejection of the Bill is widely seen as the result of pressure by copyright industries, and the threat of trade sanctions and reduced future investment from the United States and the European Union.

EIFL Urges Brazil to Maximize the Benefits of the Marrakesh Treaty to Expand the Global Availability of Accessible Format Works for Persons with Print Disabilities

[Electronic Information for Libraries] EIFL welcomed the opportunity to submit comments on Brazil’s implementation of the Marrakesh Treaty for persons with print disabilities. The comments focused on Article 4(4) of the treaty, an optional provision that allows a country to confine exceptions to works that are not available on the commercial market under reasonable terms, the so-called ‘commercial availability test’. EIFL opposes the introduction of a commercial availability test because it would undermine the overarching objective of the Marrakesh Treaty, which is to expand the availability of accessible format works for persons with print disabilities. It would especially hamper cross-border exchange of accessible format works, widely recognized as key to ending the global ‘book famine’ for persons with print disabilities, and fundamental to the treaty’s success.

MEP Pospíšil Asks Why the European Commission Intervened in the South African Copyright Amendment Bill

Last March, the European Commission sent a letter to the South African government warning that its proposed Copyright Amendments Bill carried a "significant legal uncertainty, with negative effects on the South African creative community in general and on foreign investment, including European investment." In May, MEP Jiří POSPÍŠIL asked who from the Commission sent the letter and why they did so. He noted that the Bill "was the result of a consultation involving representatives of all sectors of South African society, and it concluded that it was the best option available and that it was expected to bring positive effects for South African society." He also asked which multinational companies the Commission had communicated with about the Bill.

Copyright Directive – Implementation – July news

[Natalia Mileszyk] Last month, we held the first edition of our Copyright Directive Webinars, aimed at explaining the different provisions of the new Copyright Directive and making suggestions on what to advocate for during the implementation process of those provisions at a national level, to expand and strengthen user rights. We’ve now released the presentations and video recordings of the webinars. As you know, many countries are now speeding up with the process of implementation of the Directive – you can find below a short summary of what’s going on.

COVID and Copyright – Impact on Education and Libraries in South Africa

In his online newsletter, President Ramaphosa regularly speaks about unemployment, poverty and various socio-economic problems that are negatively affecting millions of people in our country. He stresses the importance of education, social upliftment and the need to improve the lives of people with disabilities. He stresses the importance of a reading culture and an employed public. He talks about the various Government initiatives and plans underway to address many of these issues. Yet, he fails to acknowledge that access to information and knowledge-sharing are key elements for socio-economic development and advancement, teaching and learning, as well as creativity and innovation in South Africa.

South African President’s Reservations to Copyright Bill Not Supported by Law

The President of South Africa recently exercised his power to return the long considered Copyright Amendment Bill back to Parliament because of reservations about its constitutionality. Specifically, the South African President declared unconstitutional the provisions in the bill that would require contracts with creators to include royalty payments, the reversion of ownership rights back to creators, and the introduction into South Africa of a fair use right and other common exceptions to copyright. The move was immediately heralded by representatives of collecting management organizations, multinational publishers and music labels as a win for creators. In fact, the provisions declared unconstitutional by the President serve the interests of individual creators vis a vis these well-heeled intermediaries who lobbied extensively against the bill. This note analyzes the specific constitutional reservations given by the President for his referral and concludes that all of them are acutely unsupported.

Ambivalence to Fair Use in U.S. Trade Policy

On June 16, 2020, President Ramaphosa of the Republic of South Africa referred the Copyright Amendment Bill (“CAB”), which had been awaiting his signature for more than 18 months, back to the Parliament. This action appears motivated at least in part by the U.S. Trade Representative (“USTR”)’s concerns about the CAB’s inclusion of a fair use right. This is the most recent example of apparent ambivalence towards the “exportation” of fair use in U.S. trade policy over the past 25 years—notwithstanding that the Supreme Court has twice held that fair use is a built-in accommodation between the Copyright Act and the First Amendment.