David Robert Lewis
THE apartheid-era Copyright Act was designed to keep intellectual property out of the hands of producers of content and in the hands of big corporations.
The latest draft amendments issued by the South African government merely expand the ambit of the act, with scant attention to the rise of permissive “copyleft” licensing. Even worse, the amendment could fraction what little remains of the public domain or knowledge commons.
Those creators who wish to license their works under a permissive licence are in for a shock.
Since the act operates as if in a vacuum, as if several schemes under the knowledge commons do not exist or are not relevant (read Creative Commons, GPL) – the amendments thus enforce resale royalties without reference to permissive licensing (unless you happen to be disabled), with the unintended consequences of making such licences unenforceable.
In one stroke of a pen, the proposed Copyright Amendment Bill could make copyleft licensing illegal, since any independent assignment or waiver of rights external to the act will be prohibited.
In short, there will be no way out of copyright if you are a producer, but several ways around copyright if you happen to be a publisher. So yet another blow, to both the public domain and to permissive licensing under private contract and similar schemes.
Luckily, all is not bad. There are some significant and overdue paragraphs on “fair use, temporary reproductions and educational use”, which make life simpler and easier for publishers, teachers and even artists.
It has taken some 20 years to balance the previous regime’s fair dealing concepts with fair use, and after several cases the amendment may go too far the other way. How does one deal with aggressive online content aggregators and site scrapers?
Are we seeing the rise of compulsory licensing of content under a regime which undermines private and commercial law?
As a rule of thumb, and as copyleft activists point out, there is a world of difference between reproducing material for educational purposes and selling the same material for the purpose of making money, and how to balance these two poles has always been a bit of an administrative nightmare.
While the visual arts industry must be dancing for joy, now that the issue of “resale royalty rights” has finally reached the desks of the country’s legislators (I once had the audacity to propose a similar private scheme back in 1997, only to be shouted down by slick arts dealers who stand to lose a percentage of each and every sale, to the originators of the work!), there are a number of concerns around administration and definition, for example what constitutes a work of art versus a simple archive image?
Since the amendments’ main innovation in this arena appears to be to control “resale royalty rights”, the proposals mooted will inexorably alter the default copyright regime, to one in which all works of art have vested resale rights. All good and fine for the William Kentridges of this world, but there’s a bit of a poison chalice in this, since the result also perversely puts an end to “private contracts” and likewise the definition of “person” under common law.
Such a situation may thus have unintended consequences.
The amendments will introduce uncertainty through lack of consistency in its application to different media.
Photographers, for example, have expressed some bewilderment regarding the act’s definition of composed photographic works.
If money changes hands for whatever reason, (could simply be an exchange of bananas), the producer of content can see his or her copyright transferred wholesale to the “composer of the image”, who is not necessarily the photographer, and without any remuneration or negotiation on resale rights.
Likewise, writers and journalists who submit work for publication are still stuck in the old regime whereby copyright is vested automatically in large media publishing houses, and not the originator of the material.
Predictably, the issue of Digital Rights Management (DRM), one which is bound to be controversial for online torrent users and illegal downloaders of Hollywood content, sees its appearance in the definition of “technological protection measure”. Thus, circumventing DRM on your own private computer is on its merry way to incurring stiff penalties. Unlocking your Windows 10 media player to listen to independent radio stations could put you in jail, as would decompiling any computer programme with DRM inside it.
The inclusion of “orphan works” as a definition, may be good news for large copyright collecting societies, who can now mine abandoned works that devolve to the state as “public domain works” by simply claiming their owners cannot be located. The amendments fail to establish how a work’s provenance and originator would be tracked, and could lead to paintings, photographs and other works being hijacked by putative owners from creatives who cannot be located, not because they are no longer alive but because they haven’t paid their subscriptions to the Southern African Music Rights Organisation.
The issue of needle time is fraught with difficulties in application. What may apply to a national radio station or a large theatre is surely not applicable to a small venue, but the law has been unevenly applied and the new amendments do not provide much in the way of clarity. Music collection agencies tend to sue artists for sampling Dr Dre, and those beats you played in your backyard on that old djembe could turn out to be owned by Universal Records, in which case you may be in breach of the new regulations.
Food for thought, the amendments are a major revision of the Copyright Act, and appear to introduce a massive boost for local content and artists when it comes to broadcasting needle time and royalties, but as to why broadcast content should be dealt with by an amendment to the Copyright Act and not the Electronic Communications Act is anyone’s guess.
The public has until August 26 to make submissions on the draft proposals.
l Lewis is the publisher of Medialternatives