Publishing News

New legislation poses a threat to SA’s creative industries, economy

Feb 26, 2024

Fair Use not beneficial to copyright owners and creators

The parliamentary portfolio committee on trade, industry and competition has announced the adoption of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill, in concurrence with the National Council of Provinces (NCOP).

The bill ostensibly seeks to improve access to information for all and to provide helpful benefits for authors and creators. The advocates of this call it Fair Use.

First and worryingly, the handling of the meeting was a replay of a movie we saw in 2018 already. True to form, the committee has cut corners on proper consultation again.

Where previously it had allowed the public access to the online meetings, on this occasion it elected to have a physical meeting, thereby excluding many stakeholders and interested parties to engage meaningfully on the bill.

The recent public hearings lacked constructive engagement and where feedback has been submitted, it has been totally disregarded. We are now convinced there is a clear agenda to push through this bill by disregarding the negative impact it will have on the creative industry and the economy of this country.

We challenge the government to do a survey on the basic understanding of this bill and the impact it will have. This, we believe, will show a true reflection of the shoddy consultation process.

President Cyril, in his referral letter back to parliament in June of 2020, clearly expressed his reservations about the constitutionality of the bill and concluded that in its present form, it may not pass constitutional muster.

He went on to address the six areas of concern. This newly adopted bill has only dealt with one of those. The committee reports will now be tabled on February 29 for consideration and possibly adoption by the National Assembly.

This turn of events should be worrying to creatives, investors and all South Africans who want a better future for generations. Our continued calls for both bills to be reviewed and for the president’s concerns to be addressed adequately have fallen on deaf ears.

Industry players have spent years and a lot of money participating in this legislative process. As the Copyright Coalition of SA, we once again make a plea to lawmakers to consider our concerns.

The Fair Use provision, which has been imported from the US and fiercely rejected by the creative industry, remains in this bill. Despite being warned about the over-broad provisions, our lawmakers are relentless in adopting a concept that will ensure that intellectual property is no longer sufficiently protected, thus opening the floodgates to endless litigation and disinvestment in the creative industries.

The argument by educators and academics for Fair Use is a one-sided view that only considers the short-term benefits for pupils, students and academics but fails to consider the dire consequences for copyright owners and creators.

The exception moves the cost of education, that should be borne by the government, to authors and publishers of educational works, meaning they will not be fully compensated for their works.

Why should the authors and publishers be the only ones working for free, when government functionaries, instructors and suppliers of paper, digital equipment and online platforms get justly compensated?

Why should the content be free, yet everyone else gets paid? Some suggest that without this bill, there will be harm to our education system. This is unfounded. The result will be that SA will have to rely on foreign textbooks. We should learn from this costly mistake and chart our own path to creating a knowledge economy for our authors and publishers.

Our culture should not be given away nor sold out. Additionally, the impact on the SA film and television sector will greatly diminish the renewed interest in funding and producing local content and taking our stories to the world. Producers and investors may reluctantly shift their locations and search for talent elsewhere. The time to act is now.

Article by Chola Makgamathe ■ Makgamathe is chairperson of Copyright Coalition Of SA