Reshaping copyright laws for the digital era

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South Africa - Parliament’s attempt to update SA’s copyright legislation has become a battleground between those who rely on copyright to benefit from original creative works and those who advocate that it makes creative work expensive and inaccessible.

In the music business, copyright owners (authors or entrepreneurs) are entitled to five copyrights — reproduction, adaptation, performance, broadcast and communication.

There are different intermediaries for obtaining licences to these rights.

"Copyrights first arose in 1454 with the Gutenberg press, which added a reproduction value metrics to performance. These two metrics underpinned the music industry up until the digital age," says copyright lawyer Graeme Gilfillan.

"Then two basic types of copyright law developed. The common law copyright regime arose from the English Statute of Anne in 1710, which England exported to all its colonies and protectorates including the US.

"This favoured capital as opposed to creativity. The Europeans — led by the German and French and their respective colonies and protectorates — adopted a civil law copyright regime that placed creativity before capital."

SA used the British Imperial copyright act verbatim from 1916–65. A new Copyright Act was introduced in 1978 and was last amended in 2002.

The Copyright Amendment Bill was first proposed in the National Assembly in 2016.

It is based on recommendations from the Copyright Review Commission and is expected to tackle the act’s inconsistency with the digital era and conform to international standards.

Due to much comment and criticism, it has been sent back for redrafting by Parliament’s portfolio committee on trade and industry. The committee is busy refining another bill on consumer credit and is only expected to return the Copyright Amendment Bill to Parliament in March.

Digital-era terminology such as "streaming" and "safe harbour" are currently absent from the bill.

Safe-harbour provisions were introduced to provide an appropriate balance between copyright holders and users, but according to Gilfillan, have become "one of the greatest piracy menaces of our times".

Internet service providers have exploited safe harbour to gain copyright infringement protection from claims by their users.

"Safe-harbour provisions have quietly crept into South African law via the Electronic Communications and Transactions Act of 2002 and not via the Copyright Act 98 of 1978," says Gilfillan.

"It suits Google, Facebook, Amazon, Apple and others that there is a legislative disconnect — not just legally, but practically, risk reduction and profit wise."

Landmark Australian legislation has retained safe harbour provisions for educational institutions, libraries and organisations in the disability, archive and culture sectors, but has not extended it to Google, Facebook and some other businesses.

Critics of the bill say "fair use" has become confused with "safe harbour". Fair use enhances access to and use of copyright works for the advancement of education.

A positive precedent for fair use was set recently in the high court in Delhi.

"Safe harbour places unnecessary weight on the important fair-use provisions that the bill seeks to introduce in Section 12 and 13, which are critical to SA’s future," says Gilfillan.

"Fair use is a rights holder tool providing a much-needed threshold to use against the copyright infringement arising from rampant, badly regulated safe harbour provisions.

"Without fair use, rights holders and creators have no foothold to address some of the well-publicised copyright abuses that occur under safe-harbour provisions."

Contracts that are used by online service providers to cover all copyright works are not dealt with by the bill. In these contracts, the term "content" has largely replaced "copyright" and "user-generated content" has replaced "copyright works".

In a letter to the portfolio committee, Gilfillan sketched the example of Facebook Rights Manager, a new platform that enables automatic monitoring and payment of copyrighted content. He says this acts as a collecting society that "purposely ignores the existing role of rights holders and the state rights in copyright works.

"It removes creators’ rights at source, riding roughshod over territorial rights already assigned to rights holders and forcing users into their advertising revenue whirlpools outside the country."

The bill is an opportunity to regulate these unregulated online contracts with a standard contract approved by the state for SA’s citizens, protecting their copyrights and revenue streams.

The US, EU, New Zealand, Russia, South Korea and Australia have regulated online contracts. Brazil came to an agreement with Facebook for payments to be taken directly in Brazil. SA, however, falls into the One World licence that transcends geographic and national boundaries.

"Millions of South African citizens have signed online contracts to engage with Facebook. These contracts are devoid of reference to South African law and strip users of the data and intellectual property that they post," says Gilfillan. "It offers no opportunity for amendment or for privacy regulation and allows Facebook to monetise South African content en masse, sans any contribution to the fiscus and sans any equitability as far as the individual users are concerned.

"They transfer their copyright use out of the country. The state and South African citizens are in one shot denuded — never able to share and participate in revenue streams that make Facebook billions of dollars a year.

"If local law is not up to scratch and does not speak on the matter of content and online contracts, then Facebook rules and does as it wishes, like any company that pursues profit."

Intellectual property role-players including the Southern African Music Rights Organisation, the Composers, Authors and Publishers Association, the Marketing Association of SA, Recording Industry of SA, South African Music Performance Rights Association and others have formed a Copyright Alliance to lobby the government on the bill. They have exposed irregularities they describe as a "copyleft" agenda.

Copyleft came out of the "creative commons circus", as Gilfillan calls it. It has made it easier for firms and individuals to use and abuse works.

"Big digital businesses seek to undermine copyright law. Will we end up just buying junk from overseas? Don’t destroy copyright — the rest of Africa is watching what happens in SA," says Professor Sadulla Karjiker, holder of the Anton Mostert chair of Copyright at Stellenbosch University.

The Copyright Alliance will hold a copyright conference at the end of January.

"Foreign drafters known to be aligned with the interest of big US corporate tech companies are on the bill’s drafting team, but not our own world-respected copyright lawyers," says entertainment lawyer Nick Matzukis of the Academy of Sound Engineering.

"A review of how Google, Facebook, Amazon, Apple and others are being addressed in the world confirms it is departments of justice and other organs of state [working] in IP [intellectual property] and trade and industry, empowered by legislation, who are creating national settlements that are distributed to stakeholders and setting the rules of the game," says Gilfillan.