Copyright Amendment Bill

Copyright Amendment Bill – comments due Friday 30 June 2017!

Parliament has released the 2017 Copyright Amendment Bill for public comment.  The Global Expert Network on Copyright User Rights –  has partnered with the Freedom of Expression Institute (FXI) in South Africa to facilitate stakeholder participation in the comment and hearing process for the bill.

FXI Position 

There is a potential tension between copyright law and the right to freedom of expression as enshrined in section 16 of the Constitution. When viewed expansively, copyright law could be used to curb and even suppress speech, dissent and other forms of expression. Though necessary to guard certain property rights, copyright protection should be narrowly understood so as to minimize conflict with freedom of expression. Giving broad purview to public interest exceptions is a particularly useful tool to achieve this goal and may be especially important in a country like South Africa, which focuses on expanding educational and knowledge access.

The Copyright Amendment Bill [B13-2017] strives to incorporate “fair use” exception in section 12, limiting copyright protection in favor of prescribed public interests and utilising a flexible balancing test to evaluate whether an exception should be granted. However, the limitation on the s12 exceptions–only for, e.g., education, research, parody, underserved populations–may be problematic practically (in the digital era) and on principle since it inevitably restrains freedom of expression. The Bill does attempt to carve out various other exceptions (see sections 13(a), 13(b), 19(b), 19(c), and it deserves scrutiny on its breadth and interaction with the right to expressive freedom.

In section 27, the Bill criminalises the publications of works circumventing copyright protection, which may be problematic from a freedom of expression standpoint. Nevertheless, the Bill appears to make advances compared with the 2015 version since it provides an exception for those “authorised to do so.” This could arguably protect the interests of investigative journalists and similar professionals. Finally, the Bill aims to move South African copyright law into the technological age. Your comments are necessary to understand how this will infringe and/or protect freedom of expression on the internet and social media.

We encourage you to comment and have your say!

 

A.      Comment process

The Portfolio Committee on Trade and Industry will accept written comments until 30 June 2017, and will hold public hearings in August 2017. Submission guidelines and further information can be found here: https://www.parliament.gov.za/committee-notice-details/21

B.      Global Network Comment

The Global Expert Network on Copyright User Rights, coordinated by academic members from UCT, Wits, UNISA American University and Duke University submitted a preliminary comment on the bill focusing on the need for the legislation to include a sufficiently open and flexible general user right to accommodate transformative expression as well as for technological uses, like artificial intelligence and machine learning, that do not use works for expressive purposes. See http://infojustice.org/archives/38242

C.      Travel Assistance

We have a small fund to facilitate local (South African) travel to the hearings of approximately 10 people – a maximum of one per organisation.These grants are primarily intended for those commenting on the user rights (aka limitations and exceptions) provisions of the Bill in sections 12-19.

Contact us and apply for assistance through this form: https://form.jotformpro.com/p ijip/SAParliament

D.      Technical Assistance

You can find valuable resources for preparing comments on the Bill at http://infojustice.org/flexible-use. In particular, you may find useful:

  • Masterlist:  Limitations and Exceptions Provisions in National Laws
  • Appendix I: Presumptively Lawful Purposes (Survey of Specific L&Es)
  • Appendix II: Examples of Flexible Limitations and Exceptions from Existing and Proposed Laws
  • Appendix III: Responding to Frequently Asked Questions About Flexible Use Provisions

The Global Expert Network will make available experts to assist in providing information and answering questions that may assist you in drafting comments on the bill.

E.       Join Us

If you are planning to make a submission on the bill and would like to be part of our network of public interest organizations for purposes of coordination or to apply for a travel grant, please fill out the form or email  the project’s local coordinator, Ben Cashdan on the following email:   ben.copyright.project@gmail.com

For further information contact: 

Ben Cashdan, Local Coordinator –  Email: ben.copyright.project@gmail.com

Tusi Fokane, Executive Director, FXI (South Africa)  – http://fxi.org.za/home / Email:  tusif@fxi.org.za

Sean Flynn, American University, Washington College of Law – https://www.wcl.american.edu /  Email:  sflynn@wcl.american.edu

Tobias Schonwetter, UCT Intellectual Property Unit  –  (http://ip-unit.org /  Email: tobias.schonwetter@uct.ac.za