Answers to some Frequently asked questions about the Copyright Amendment bill waiting to be signed by President Ramaphosa.
Find out more about the Copyright Amendment Bill 2019 at the University of Witwatersrand Q&A page at the link below:
What fair use is
Fair use is an opening of fair dealing to include additional lawful purposes
The proposed fair use provision is an opening of South Africa’s existing fair dealing right. Both fair use and fair dealing are general exceptions that apply a common test of what is “fair” to a host of different purposes (e.g. criticism, etc.). Fair use is different mainly in including words “such as” before its list of permitted purposes. The effect is to make the list of permissible purposes of the use open to potentially any purpose. But the use still must be fair -- which means that it must not substitute for the original work.
The openness of fair use enables innovation
A key value of opening the purposes for fair use is to permit new technologies and uses that do not harm the original creator but that cannot be foreseen by the legislator. Flexible fair use systems have been able to accomodate technological change -- from the VCR to MP3s to the Internet.
Fair use serves creators
Fair use helps creators because it allows them to depict real life, respond to other works, and make new creative works without being censored by the owners of copyright.
Fair use benefits the economy
Empirical research has shown that fair use rights benefit both the creative and high technology industries without harming traditional copyright intensive industries like publishing and entertainment. http://infojustice.org/flexible-use/research
Fair use will benefit local publishers
In South Africa, over 60 percent of books used in schools are locally published. (PASA 2013). But 60-80 percent of DALRO licensing revenue for copies of excerpts goes to foreign publishers. (Copyright Review Commission). So if schools and universities save on licensing and buy more books -- which is what happened in Canada recently -- local publishers stand to benefit. https://www.ip-watch.org/2017/07/25/fair-dealing-not-destroying-canada-publishing/
What fair use is not
Fair use does not breach international law
International law permits fair use. The United States and many other countries have fair use already and have never been challenged.
Fair use isn’t a free-for-all
Fair use is not carte blanche to use other people’s work without paying. A key test for whether a use is fair asks whether the use would deprive the author of revenue by substituting for the need to buy the work. Piracy is not fair use.
Educational fair use would not allow schools to give away books
The Bill specifically provides that coursepacks or other forms of copying may not “incorporate the whole or substantially the whole” of a work. (12D(2)). It authorizes non-commercial educational copying of full works only if “a licence to do so is not available from the copyright owner . . . on reasonable terms and conditions”; “where the textbook is out of print”; or “where the owner of the right cannot be found”. (12D(3)-(4).
Fair use does not shift the burden of proof to the rights holder
Fair use is a defense to infringement. Like other defenses, the user carries the burden of proving the defense -- i.e. showing fairness of the use.
Fair use does not drive up litigation or litigation costs
There has been no reported explosion in litigation in Korea, Philippines, Israel, Singapore or other countries that recently adopted fair use. A review of a sample of all US federal court cases found that copyright cases are less than 1% of all cases and, and fair use rulings make up just 0.004% of published rulings.
Fair use is not a giveaway to Youtube
Fair use doesn’t let anyone avoid paying a license to play, perform, or copy a work in a way that substitutes for the market of the copyright owner. There is little or no commercial fair use on Youtube because the Content ID filtering system allows the copyright holder to monetize or block any use of their work.
Fair use will not cause unpredictability
Under fair use, as today, any use of a work that could substitute for the use of the original in the market would need to be licensed. This is a simple understandable test already applied by South African courts under the current fair dealing standard.
Questions and Answers about ReCreate
Question: Why is Recreate supporting this Bill?
Answer: Our Coalition supports the Bill for a number of reasons. The copyright law in South Africa dates back to 1978, is extremely outdated, and does not address the digital age in which we now operate. Bill promotes three rights which are fundamental to our different stakeholders, namely the right to earn, the right to own and the right to create.
The Bill accomplishes the right to earn through provisions that promote royalty sharing, which mandates publishers and other sellers of works to share royalties derived from works, even when those works are assigned. The Bill provides for the accreditation, regulation and membership control of collecting management organisations and demands transparency in the payment of royalties to creators based on actual reports of the use of the copyright protected work. The right to earn is further accomplished by the introduction of the resale royalty right which will allow visual artists to receive a share of the sale price when their works appreciate considerably after the first sale. Furthermore, after decades of exploitation, actors, musicians and performers will gain the right to have control over their work and the right to fair remuneration and royalties for the continued usage of their work.
The Bill promoted the right to own by removing the statutory presumption that the commissioner of the works is the default owner of the work and requires the ownership of commissioned works to be determined by mutual agreement between the contracting parties. This was a provision that was directly called for by creators and the Department of Trade and Industry took this into account and included this in the Bill. The Bill proposes a right of reversion, transferring copyright ownership back the creator 25 years after any assignment. The Bill also ensures that moral rights apply to all works.
In terms of the right to create, the Bill adopts the fair use copyright exception, expands the incidental use right to include all works and makes it clear that you may capture works in public spaces in a new creation. These provisions are valuable to creators as well as public interest users like libraries and educational institutions. Creators value fair use because the are many instances when creation relies on the use of other work, as explained below.
In addition to the above mentioned reasons, the Bill will finally break the ‘book famine’ and empower those living with disabilities to give them access to works published in accessible formats, such as Braille, which is something that the current Copyright Act criminalises.
Question: There is contention that "Fair Use" will cripple creatives in the industry because people will be able to copy their work for free? Do you guys agree?
Answer: Fair Use will not cripple the creative industry. This has not happened in any of the countries that have adopted fair use. Fair Use does NOT mean that all uses of works will be free. The Bill specifically states that a fair use cannot substitute for the work in the market, and therefore guards against piracy.
The Bill sets out very clear parameters as to what use of a copyright-protected work will be considered fair. In deciding whether a use of a work is fair the following four considerations need to be taken into consideration:
1 - the nature of the work i.e. this is important as not all copyright protected works are enforced with equal weighting, for example, a newspaper article that states facts will not be protected on the same level as an authored novel.
2 - the amount extracted from that work, e.g. to copy an entire academic textbook is not fair use, that is infringement, and if sold, piracy.
3 - the purpose of the work, which looks at whether the use is for criticism, educational uses or parody etc. A great example of this is that Trevor Noah would not be able to host the Daily Show in South Africa, under the current fair dealing, because it requires him to use excerpts from the likes of Fox News for criticism, parody, satire, etc. Fair use is would make that possible.
4 - the impact of the use on the market for the original work, including whether the use can substitute for the work in the market. It is illegal to engage in piracy.
Fair use is necessary for creators because many new works contain references or excerpts of other works. Documentary films quote news and other sources. Photographs capture copyrighted images and structures. Authors quote other authors. Fair use ensures that creators have the rights to make these and other uses that do not substitute for the original work in the market. In doing so, it frees creators from private censorship.
Fair use is also necessary for the innovation that we all rely on. The key innovation of fair use is its flexibility, It applies to all kinds of works and purposes as long as they are fair. It can thus be applied to technologies like data mining and machine learning for artificial intelligence which were never envisioned in our 1970s legislation.
Fair use facilitates access to research and educational materials, which is crucial for creators and our country. It also permits the creation of decolonised learning materials in all South African languages. Libraries will also finally be able to digitise and preserve important collections, including our cultural heritage. Without access to existing knowledge, no new knowledge can be created. Creators rely on access to rich archives and other sources of material to foster their creation.
This Bill will bring our legislation in line with international standards and progressive practices in countries such as South Korea, Singapore, United States, Israel, Malaysia, Philippines, and Sri Lanka to name a few countries that have recently adopted fair use. In these countries, creatives thrive and are not by any means disadvantaged by fair use.
Question: In your view, how will the creative industry benefit from this Bill?
Answer: What this Bill will do is quantum leap South Africa into the 21st century to address the digital world and enable it to deal with the demands of the Fourth Industrial Revolution.
The current copyright law in South Africa does not protect the interests of creators, it protects the interests of profiteers. Creators work in industries where many of them are systematically disempowered through the use of apartheid-era legislation which favours historical and international monopolies which have control of money and power. The Bill will change this power imbalance and we applaud it for this by reinforcing the right to earn, own and create.
A key goal of Bill is to empower creators in their negotiations with labels, publishers and other intermediaries who profit from our work. No longer will middle men be able to buy our work without royalties or keep our rights forever. No longer will collective management agencies be able to collect royalties from our work without our control.
Question: The are rumours that Recreate is funded by Google. Is that true? If not, please substantiate.
Answer: ReCreate is funded by a number of organisations, which includes Google, Open Society Foundation and contributions from a number of volunteers and organisations. We do not act under any instruction from any of our funders. Further, it is important to note, we do have fundamental disagreements on which we are challenging Google, specifically around their lack of transparency and the process for paying creators on platforms such as YouTube. We do not represent Google in any way.
Recreate is a transparent, membership endorsed organisation. We are comprised of writers, filmmakers, producers, photographers, actors, teachers, professors, students, learners, librarians, journalists, artists, poets, software developers, technology entrepreneurs, freedom of expression activists, disability activists, game developers, producers of accessible format materials, educational content producers and many other diverse South Africans. We work in coalition with other organisations that represent over half a million South Africans. See www.re-create.org.
In reality, those opposing this Bill are the well-resourced middlemen, profiteers and producers who currently make millions while exploited creatives can’t afford their rent.