Introduction – a climate of contestation

A fierce row is now boiling over in South Africa with, on the side of change, future-oriented  and digital savvy copyright lawyers, academics, librarians, publishers and other creative industries. This is a community well attuned to the rapidly changing affordances in digital world we live in and familiar with the access to knowledge debates and changing publishing models that have transformed the face of copyright in the 21^st century. This community seeks to understand the potential impact of the emerging concept of the Fourth Industrial Revolution with its focus on artificial intelligence and high tech futures, which, it is predicted, will be a game-changer in this regard[1]. Most of all, there are questions we could ask ourselves, as publishers and educators, about what this constantly changing environment could do to address the problems we face in growing the scope, reach, and effectiveness of our copyright industries.

On the opposing side, for the most part, are the established large commercial publishers, copyright collecting societies, and big media corporations who, for all their money and power, have seen their entrenched rules for their strict control – vertical and lateral – of content eroded in a world of increasingly rapid technological change. And, surprisingly, the South African university presses are also protesting, as well as a number of academic authors. There is also a cohort of the more conservative of the copyright lawyers, local and international – but, in my experience, this is to be expected. Particular hostility can be directed at legislation of this kind by Collecting Societies who do have something to lose in an environment that erode their area of control.

At the heart of this row is the new South African Copyright Amendment Bill, currently waiting for presidential signature and especially, among others, the provisions for the introduction of fair use into the South African creative industries, a topic that has been the subject of many angry and agitated dialogues (and monologues, for that matter). What this argument has done, I would argue, is generate a substantial diversion from what this fair use provision will really mean in the South African context, rather than the a-historical accounts that see these provisions as a potential for massive piracy. The heart of my argument depends upon a historical account of how fair use appeared in this landscape and a review of how these issues are playing out in reality in other markets relevant to our context.

As a former publisher and Chair of the PASA copyright committee in the early years of our then new democracy, and then as a researcher/consultant, I have been involved in discussions about the need for change in our publishing industry and in its now outdated copyright landscape for more than 20 years. From my perspective, this change is vital, in order to align better with an increasingly digital world and in response to the radical changes that are happening in publishing and its broader context in the creative industries.

Also of crucial importance is the very different nature of the society we live in now. We need to respond to the developmental challenges we face in a frighteningly unequal society in South Africa, using all the affordances offered by any old and new technologies and business models that could contribute to a truly responsive publishing culture, able to retain viability while making the most of traditional practices and new technological opportunities. This is a very challenging task, but, if we do not do this, we are likely to see an increasingly threatened industry environment, facing market resistance from many of its customers and even of accusations of being on the wrong side of the decolonization debate that is still on the front burner in South African universities. The price of books is a real issue, as is the question of market reach, accessibility and language, and the higher education sector, that I am so familiar with, needs to grapple with solutions that will democratize access to learning materials, while helping to protect and expand the valuable resources that we have in what is the biggest publishing media sector on the continent. Our copyright industries – publishing being the one we are most concerned with here, are very valuable national assets

The industry will also have to confront the likelihood of a more variegated context of multiple media and multiple formats; open access publishing models and open licensing; more extensively networked content provision; the transformative use of mobile phones, and not least, the provision of more flexible solutions to the problems posed in the IP environment.  All of these will require collaboration with other media sectors, as the terrain becomes more digital and more integrated.

The immediate question we have to ask is how, in the current context, copyright and broader intellectual property legislation can best respond to this opportunity – and challenge. Fair use has proved a contentious issue with various commentators – I think because of a misunderstanding of its scope. This needs to be dealt with in the historical context, not least because developments in US legislation in the early 21^st century circumscribed its role.  

The Context of the South African IP legislation – a historical approach

The current South African Copyright Act dates back to 1978.  That date turns out to be highly significant – a telling indicator of the deficiencies we have inherited and standoffs we are facing. Seen from this historical perspective, the current altercation about new IP legislation is significant, in that it was the period immediately after the enactment of this Act, in the last quarter of the 20^th century, that saw the steady rise and phenomenal growth of the huge global media corporations that had become the dominant feature of the media landscape by the time that apartheid ended in 1990. They were even more entrenched in the early years of a democratic South Africa. The current moment is a good one for analysis of the cycle of transformations that has taken place since the 1978 Act, from physical products to digital and from relatively small publishers and content producers to giant global media consorti, as we face yet another cycle of developments, in the form of digital disruption in the era of the Fourth Industrial Revolution.  

The growth of the big media industries across global markets

The publishing world in the years after the 1978 South African Copyright Act was one of strong copyright enclosure, with market dominance and strict copyright enforcement rules exercising heavy-handed control of this market by rapidly expanding large global media companies.

At the end of the 20^th century, in 1998, the  Digital Millennium Copyright Act (DMCA) enacted criminal penalties for the hacking of digital rights encryption, that protected the products of the big corporations.

Annual reports were compiled by the US government, ranking and shaming other countries for their levels of compliance to copyright. Non-compliance could lead to inclusion in a Black List and from there a country could face a downgrade to trade sanctions. These reports were compiled by US government and media industries and the standards of compliance were skewed towards US trade interests. I was involved with the completion of one or two such questionnaires and was surprised by their lack of rigour and their neo-colonial assumptions. Nevertheless, the sanctions for failure to comply could bring serious penalties for the industries in the countries concerned.  

This sense of dominance was even stronger in media other than print – the Hollywood film makers were notorious for this, wanting to ban video cassette recorders to prevent downloads of movies, while the most notorious case by the Recording Industry Association of America (RIAA) was won against Napster, the music-to-computer streaming service which allowed the tracks on a CD to be downloaded onto a computer by the CD’s owner. What was behind this feature of the industry was the concept of a fully integrated market and industry environment, ensuring strong control of all layers of the markets facing these large corporations, an end-to-end business. The corporations sought to control not only product development, but the application of technologies at every stage of the business cycle, in an end-to-end market that extended from participating content producers and artists, including multiple media, and from artistic creation, through manufactured transmission devices, to final consumption of the end product by users.

This integrated approach was seen as the most efficient way of managing global multinational multimedia markets. CThe content was locked into physical devices, protected against hacking. In this context, IP management was a core competency and a very wide-ranging responsibility, all in the hands of the corporation concerned. What customers bought was a complete closed and sealed product, with electronic locks and digital rights management protecting against the extraction and downloading of these digital creative goods.

Piracy was a source of great concern and the expansion of digital media, which allowed for customer creation of their own libraries of digital content, was perceived as a major threat. An understanding of the transition from this integrated and highly controlled market of physical goods and the digital products we know today is a key underpinning of the new South African Bill, and an important update from the 1978 Act.

The extension of the period of copyright

The extension of the period of copyright in the Act known as the Sonny Bono Act in 1998, to life plus 70 years, was also part of this culture. Driven by the Disney Corporation and other media empires that did not want to see their corporate goldmines weakened, the first works affected by this ruling were liberated this year. It was driven in good part by the desire of the Disney Corporation not to see Mickey Mouse go out of copyright, as profitable as it was. It is hardly likely that there will be potential for any but a handful of orphan works to be accessed after such a long period. For authors and their heirs, 25 years after the death of the copyright holder is a much more practical prospect, but 70 years gives more space to collecting societies and publishing companies to extract revenue.

South Africa’s Copyright Act, given its date, although it was modified from time to time, remained in many ways, a creature of this period, of rights holder dominance over user privileges, but in the case of the South African Act, before the advent of digital media’s dominance in the creative industries. In other words, it is very thoroughly out of date.

Decolonising South African publishing – Parallel Importation Prohibition

In this period, in the second half of the 20^th century, English language publishing remained divided between Britain and the US, which had, earlier in the century, forged a ‘gentlemen’s agreement’ between the big publishing companies in the UK and US that international rights were to be divided up, with the UK ‘owning’ the Commonwealth as its world market and the USA getting ‘the rest of the world’. What it meant, essentially, that the two most powerful publishing nations were dividing up the world between them, subordinating the colonies to The UK’s commercial interests. If British and American publishers had shared rights in an academic textbook, it was the British edition that would be sold in South Africa, even if the US edition was cheaper (let alone the Indian edition). There was no legal force to this mutual bargain and, from today’s perspective, the neo-colonial assumptions behind it are quite startling. It is as if the dominant nations ‘own’ the markets in South Africa and other ex-colonies.

It arises from this agreement, to a large extent, that we owe the prohibition against parallel importation, embedded in our 1978 Copyright Act. This inherited assumption is from the first South African Copyright Act which identifies its provisions as a matter of ‘His Majesty’s Imperial copyright’ holding sway across the Commonwealth.  It is this colonial assumption which the new Bill aims to reverse. The prohibition of parallel importation restrictions in the new legislation has produced a loud reaction from publishers and creative industries, with claims that a flood of cheap products from the East, in particular, will drown out our markets, destroying local publishers. The provisions for protection against parallel importation, by banning sales in South Africa (and other ex-colonies) of cheaper international co-published editions (brokered mostly in India), when a British edition is available, were in fact a neo-colonial provision, helpfully protecting the sale of higher priced UK books in their colonial markets. Equally, when this provision is applied to territorial rights of African books licensed to UK publishers, the British publishers concerned often make a proviso that the licence for their edition (which will be more expensive than the originating publisher’s edition) should apply to the ‘the rest of Africa’, so that the British edition becomes the one for sale in other African countries, almost inevitably limiting availability across Africa.

In spite of this neo-colonial background, the idea of the lifting of the prohibition against parallel importation has caused vehement protests from the publishing industry, obviously unaware that this is not only a colonial relic, but also has been effectively outlawed in the wake of the Kirtsaeng vs Wiley case in the USA. The judges in the latter case pointed out that if this parallel importation prohibition were to be applied to other copyrighted products, this would also apply to motor cars, that these days contain banks of computer software that are subject to copyright

From fair dealing to fair use – the new South African Copyright Bill

That is why the last few years of copyright reform efforts in South Africa, resulting in the new Bill, have been so encouraging. The drafting process was the most detailed and collaborative I have seen in all my years in the industry, and it is an achievement that we have got to this point, where a new dispensation is at last in sight, after many false starts. It was also a process informed by the wisdom contributed by local and international scholars, familiar with developing world contexts, and who are in touch with very rapidly changing digital environment, with its changing copyright models.  This has helped to address the very real copyright challenges that face creative industries in a developing country like South Africa and its severe inequality gap. The Bill was further informed by international treaties, proposals for treaties, the 2013 Marrakesh Treaty, the EIFL model copyright law, as well as international, regional and local copyright research, progressive copyright regimes, and various national policies and other relevant sources.

It needs to be borne in mind that, since the early 2000s, major USA universities, such as Harvard, Yale and the American University in Washington, have held extended annual or biennial workshops and conferences with a wide range of developing country participants – academics, IP lawyers, writers and musicians – from Africa, India, Latin America and the Caribbean, brainstorming possible IP futures in the broadly based Global Copyright Alliance. These meetings addressed the ways in which the current regime was dominated by the major powers, leaving colonial residues in the copyright legislation and practices that prevailed.

There are rich resources to be found in the workshop and conference records of these meetings that could be mined in taking the new South African copyright regime forward after implementation.

Recent international collaborative projects, such as the EU-SA Open Science initiative, also played a part. Pushing for a much more international view of South Africa’s place in the world and engaging with international movements such as open scholarship, globally shared data and open licensing, these ventures seemed to suggest that the time was right for moving forward in IP legislation and in South African-focused scholarship in general, as South Africa became a recognised player in global science.

Others who contributed to the drafting process were the smaller – but nevertheless very important – participants, like the documentary film-makers, who have, over the last decades, negotiated themselves into the heart of a new and more enabling technological environment, in the face of threats of lawsuits for infringement or even piracy from big rights-holding companies. And so, for example, part of the discussion around the adoption of fair use – an important part of the new legislation – has involved the assertion of the right, to include in a documentary film shoot the painting hanging on the wall of the room where an episode was being shot, or allowing the inclusion of the music that backed up a dancer in a street parade, or even the right to film the buildings in the street, if they were of artistic or historical value and subject to panorama rights.

These documentary film-makers, with the music and film streaming community, have been at the heart of brokering an understanding of a more collaborative and democratic approach to leveraging copyright compliance to make more space for smaller creator companies and bigger audiences and to be more responsive to creator and audience needs. This environment promoted the idea of fair use, focused on user needs, rather than fair dealing, which protects the rights holders. Of course, the line between users and creators in a digital environment has become blurred. Fair use broadens the scope for users, creators and rights-holders, who all need access to copyrighted works to use, re-use, re-mix, transform or innovate to create new works.

As er have seen, the Digital Millennium Copyright Act made it illegal to break the encryption on DVDs or CDs. This has increasingly been challenged by remix artists – and the rise of YouTube has made obsolete the idea that online film content is all proprietary.  Alongside this, the rise of open licensing and Creative Commons has created different IP possibilities in open culture circles. There are now a number of activist organisations and lobby groups that work in this field. What has to be realised is the extent to which opposition to rights enclosure and even piracy has opened up new horizons in the ways in which technology supports markets– for example the unbundling of collections on hard disks in order to download individual music tracks of movies.  

In the classroom, lecturers of cultural studies wanted to be able to use clips from documentaries or popular films, or even the whole film, or series of pictures of artwork from a particular period. In fair use now, the debate can be about the limits of freedom for whole movies or musical symphonies to be played in the classroom for educational purposes – in other words, the limits of fair use for educational purposes.

Thus, for universities, the fair use provision in the new legislation makes space for more effective teaching and learning.

The fair use doctrine of copyright law allows, when social benefit is more important than the (relatively minor) loss of the rights holder, that a copyrighted work can be quoted without permission. And so, groups like the documentary film makers collaboratively built statements of best practice in fair use in order to circumvent niggling interpretation of the law that served only to impede theit work. It is therefore perplexing and saddening that such a negative reaction is now emerging in the online discussions raging in South Africa right now about the new Copyright Bill, and particularly on its adoption of fair use, for documentary films, or for Media Literacy, with the freedoms it offers, without the penalties of infringement for what are for the most part minor.  

The debate about the Bill and its provisions – Fair Use

At the heart of this fair use environment is the need for trust and mutual respect. It is thus a great pity that the discussions about the new legislation have degenerated into a slanging match in South Africa with sweeping accusations being made about the damage that the legislation could cause. The truth is that, like any new legislation, there are bound to be places where the drafting could be tightened up, or provisions adjusted if they really do not work. However, what we are seeing from the Bill’s opponents often looks suspiciously like the protection of entrenched situations, a reversion to the heavy enforcement climate of the second half of the last century. The attacks on the Bill have been backed up by consultancy reports by Price Waterhouse Coopers (PWC.) in Australia and South Africa. PASA commissioned one such report that contained dire predictions of what could happen if this legislation were to be introduced, quite out of proportion to the real impact that fair use would be able to have and with little understanding of what fair use is.

This is not the first time this consultancy has been involved in defences against fair use copyright provisions. PWC’s findings have been remarkably similar in different situations, most recently for the Australian Productivity Commission. They tend to point to Canada, where they claim that fair use damaged the publishing industry. For the record, Canada does not have fair use.  It has an expanded form of fair dealing, so comparisons to fair use are not helpful in this debate.  The PWC claims have been dismissed by Canada as being incorrect.

Canada itself has roundly dismissed the PWC Australian report, which uses Canada as an example of the failure of fair use and the decline of the Canadian publishing industry when it adopted some ‘fair use’ practices in its copyright system.  On the contrary, the Canadian industry has done very well and, where there have been some problems, they are to do, rather, with the closeness of Canada to the huge markets of the USA, a daunting situation at the best of times.

PWC’s methods have also been challenged: here, for example, is some of the commentary from the deputy Director of the Australian Productivity Commission, relating to the PWC findings: [3]

There was a disclaimer that the report was actually written for a list of other organisations and would not necessarily be appropriate to any organisations other than those – something the Productivity Commission commentator said sharply was ‘an accurate disclaimer’. [4]

This speech in fact ends with a strong plea for the necessity for Fair Use: T

The challenge for policymakers is to focus on the near-silent majority of users, of adapters, of educators and creators that will need fair use to bring about the next wave of innovation, jobs and equitable prosperity. For its absence will simply foster a society of less haves and more have nots.

So for the Commission, fair use has become not a nice to have, or even a good to have, but a policy must have. At the end of the day we asked and answered a simple question – what is fair?

The Australian commentary also challenged the figures in the PWC report, suggesting, rather, that fair use would be very beneficial financially.

Then there are the advantages of fair use mentioned in the Australian review:

Advantages of fair use

Australia’s copyright system will better adapt to technological change and new uses of copyright material, without compromising incentives to create.  Improved access to copyright works would increase economic activity and community welfare. Material gains include:  • In the case of orphan works, flexible exceptions that improve access are conservatively estimated to generate new economic activity worth between $10 million and $20 million per year.  • Consumers would enjoy better access to archived, commercially-unavailable, or otherwise hard-to-access works.  • Fair use would end the practice where education and government users pay statutory licence fees for freely available online material, saving taxpayers an estimated $18 million per annum.

Fair use would put Australian universities on a level playing field with universities in comparative jurisdictions such as the USA, Singapore, Israel, and South Korea. It would mean: 

• Australian academics being able to take full advantage of innovative new technologies such as data mining and text mining 

• Australian universities having greater flexibility when creating MOOCs [Massive Open Online Course] 

• Australian universities no longer having to cut third party content from student theses before making these publicly accessible online 

• Australian academics being free to include small amounts of third party content in conference papers 

In fact the discussion of fair use contains so much information – facts and figures – on its benefits that we would need a separate paper to list all its advantages.

In short, it is very difficult to understand why the analysis provided on fair use in the South African report is so out of line with these examples. The critics look as if they have not done their reading. The conclusion would seem to be that we should be very cautious of the veracity of the sources being cited and rather look to the benefits potentially to be experienced, according to the careful and detailed analysis provided in the Productivity Commission’s report and by the teams that were involved in the revision of South Africa’s very outdated copyright legislation.

What is also significant is that the PWC report on the South African situation does not make reference to, or even seem to be aware of, the various studies commissioned by the DTI, one in particular being the “The Economic Contribution of Copyright-Based Industries in South Africa” which recommends fair use for South Africa.  Dr. Owen Dean, in his Handbook of South African Copyright Law, also states that “the America and Australian approaches to fair use are commonsensical and reasonable and should be followed by the South African courts” [5]  It is also interesting to note that IFRRO and PASA, both opponents of the current Bill, did not object to fair use when they urged the SA Government [6] to adopt the proposals to amend the Copyright Act in 2000.  These proposals included fair use (with five factors at the time, but the 5^th factor has since become redundant).

With the level of negative responses being seen to the proposals for the new Bill, it would appear that there are some deeply vested interests at play here. The critical question is whether these interests are those of South Africa’s IP future, or rather, a backlash from the past. 

The role of Google here is of interest. One attack on Google in the South African debate, this time in the Mail and Guardian, in an extraordinarily ill-informed article from such a reputable publisher, claimed vehemently, several times, that Google was behind the introduction of fair use as a way of undermining the industry sector. Dig a little further, and what emerges is that at one stage, when the big digital multimedia companies were building and consolidating their empires, Google was a prominent partner, given its role in information dissemination. However, in the wake of the DMCA, as these corporations expanded their distribution networks and now their control over content distribution, putting it all behind a locked and pay-walled barrier, Google moved across to partnerships with the kinds of organisations that were investing in distribution beyond the limits of the enclosed corporate empires.

In practical terms, there is a four-factor test to decide whether or not the reproduction of an art work, or other elements, falls under fair use. Judges look first at the purpose of the use; then at the nature of the copyright work itself; then to the amount of the work reproduced; and finally at the effect of the use upon the market.[7]

What is extraordinary is that opponents of the Bill have suggested in the media that anyone who supports the Bill is part of “Google’s lobby” or is working for Google.  This is mischievous and misinformation.

Transformative use is also a good fair use argument, so that using an extract to demonstrate a scholarly argument about popular entertainment would function as a transformative use. There are also a large number of Fair Use Policies and Guidelines[8], including those from scholarly organisations, of which one is the Society for Film and Media Studies Statement of Fair Use. [9]

Most of all, the Fair Use Guidelines for use are now enshrined in a very large number of codes of practice, many of them with direct application to the academic sphere. The adoption of fair use provisions would allow South Africa to expand its involvement in a powerful network of researchers, documentary film-makers, media studies teachers, cultural researchers and activists, among many others, to build much-needed capacity for the development of, and free access to, teaching and learning and practical resources.

A number of South Africans are already involved in processes such as these. I was surprised to read a hostile rant about fair use from a South African teacher of media studies. She clearly did not know that there is in fact a set of Fair Use Guidelines for Media Studies teachers in South Africa that would empower local teachers in understanding how they can use clippings of films and other media in their teaching; what the limits of copying are and how the materials may be used. The Documentary Film Makers Association was involved in the discussions about the drafting of the new Copyright Bill.as they were working on their Code of Best Practice.

When it comes to plays, the situation would be the same. A University Press, for instance, could interact with educators wanting to use materials relating to the plays that it has published and agree on the terms of production. Fair use normally would not involve the right to copy a whole publication or to make multiple copies of a whole work.

Reclaiming fair use plays a particular and powerful role in the broader range of activities that evidence the poor fit between today’s copyright policy and today’s creative practices. In a world where the public domain has shrunk drastically, it creates a highly valuable contextually defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming the full meaning of copyright policy – not merely protection for owners, but the nurturing of creativity, learning, expression… a crucial part of constructing a saner copyright policy.

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[1] Ruth Okediji: Creative Markets and Copyright in the Fourth Industrial Era: Reconfiguring the Public Benefit for a Digital Trade Economy. Infojustice.org : ICTSD Issue Paper No.43, August 22, 2018. http://infojustice.org/archives/40247

[2] https://www.alrc.gov.au/publications/copyright/4-case-fair-use

[3] https://www.pc.gov.au/news-media/pc-news/pc-news-august-2017/intellectual-property

[4] https://www.pc.gov.au/news-media/speeches/fair

[5] Dean. O.H. (2015). Handbook of South African Copyright Law, para. 9.2.3, pg. 1-96

[6] http://www.ifrro.org/sites/default/files/Resolution-South-Africa.pdf

[7]  Noah Berlatsky, Fair Use Too Often Goes Unused.   Chronicle of Higher Education May 10 2017

[8] See various Fair Use Best Practice Guidelines at: https://libguides.wits.ac.za/Copyright_and_Related_Issues/fairuse_fairdealing

[9] https://www.cmstudies.org/page/fair_use