Ref. Ares(2020)3170450 - 18/06/2020
Art.4(1)(b)
Copyright reform is an important element of developing the digital economy, and achieving the
right balance between the interests of copyright owners and users can take time and effort, and
require a careful analysis of the impact of the proposed changes. In IFRRO’s view the
right balance is one that encourages market based solutions, is flexible and responsive and ensures
access to content on reasonable terms. That is not achieved by the Copyright Amendment Bill,
which if implemented in its current form would have a severe impact on South Africa’s production
of creative and informational content.
IFRRO submits that the aspects of the Bill dealing with exceptions, fair use and reproduction for
education and libraries, private copying, translation licences and orphan works (sections 10, 11,
12, 18, 22, 34) be withdrawn, and that further review, analysis and consultation be undertaken
before those aspects of the Bill are reconsidered.
IFRRO makes the following comments on the Bill.
1. Support for local creative industries
IFRRO notes that in the Memorandum on the Objects of the Copyright Amendment Bill it is stated
that the purpose of the amendments is to
protect the economic interests of authors and creators of
work against infringement by promoting the progress of science and useful creative activities.
In IFRRO’s view the Bill has the opposite effect. Of course, in copyright, balancing the interests
of often opposing groups is important. However, the provisions of this Bill are unbalanced, and if
enacted it would create a situation that devastates local authors and publishers.
IFRRO’s concern is further compounded because as far as we are aware there has not been an
impact assessment undertaken of the economic impact of the new exceptions on existing and
future markets of authors and publishers. We urge the South African government to conduct a
thorough impact assessment before any further consideration of the Bill.
IFRRO reminds the Committee that the creative and cultural industries are an important part of the
South African economy, contributing significantly both to GDP and to employment. A 2012
WIPO study -
http://www.wipo.int/export/sites/www/copyright/en/performance/pdf/econ contribution cr za.pdf
showed that the cultural and creative industries contributed approximately 4% to each of GDP and
employment in the South African economy. The study also showed that this sector was a
significant contributor to exports, with significant prospects for growth in the future.
In addition, the cultural industries, such as publishing also support other important public policy
objectives, such as building and growing literacy and the achievements of enhanced educational
outcomes – which are important to an innovative, connected community and economy.
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IFRRO submission on the South African Copyright Amendment Bill (B13- 2017)
Locally produced educational materials underpin teaching and learning activities in schools and
universities. South African authors and publishers provide an important service to the education
sector by producing affordable locally produced, culturally relevant books and other content for
students, schools, universities and other educational colleges.
Unfortunately, the Bill, if implemented in its current form, will destroy existing licensing markets
and reduce the range of educational content available to South African students, and the significant
export potential to the South African economy of quality educational materials.
As such, IFRRO is of the view that the central policy objective of the Bill should be to promote
and protect South Africa’s cultural and creative community. The Copyright Act should also
encourage access for education through encouraging flexible licensing solutions to be developed,
through mechanisms such as
license override which provide that exceptions only operate if no
licensing solution is available. The effect is to encourage stakeholders to negotiate a flexible and
adaptive solution that works for all parties concerned, rather than a set-in stone inflexible
exception.
We note that a number of other African countries have adopted a
license override approach in their
legislation – notably Ghana, Mauritius and Zimbabwe.
Other aspects of the Bill introducing provisions to regulate collective management organisations
and establish a Copyright Tribunal (one of the functions of which is to determine the royalties or
terms of licence agreements) create an environment which would support a balancing mechanism
such as
licence override operating in the exceptions framework. In this regard we note that South
Africa has a well developed and effective collective management sector, another important
component of a
licence override approach to access to content.
Introducing
license override for educational and library exceptions would demonstrate the South
African gvoernment’s support for the collective licensing framework being established by the Bill.
2. New Exceptions for Education
IFRRO is concerned at the number of new exceptions for educational purposes in the Bill
(proposed sections 10(1)(a), 12A(1)(b), and 13B of the principal Act). The scope of use permitted
by these exceptions is wide and far reaching, and subject to different assessments of their possible
fairness. In one provision, section 13B, the uses are permitted without any fairness assessment
being required.
IFRRO opposes the introduction of such a variety of unpaid exceptions for educational use of
copyright content. IFRRO reminds the Committee that all exceptions to copyright, including those
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IFRRO submission on the South African Copyright Amendment Bill (B13- 2017)
for education must comply with the three-step test in the Berne Convention–
apply only in certain
special cases, not conflict with the normal exploitation of the work and not unreasonably prejudice
the legitimate interests of the rightsholder.
The wide and unremunerated use permitted by the exceptions would breach the three-step test in
the Berne Convention and place South Africa in breach of its international Treaty obligations. In
addition, including such a number of new exceptions for education will create uncertainty about
permitted uses, jeopardise a functioning collective management system, and severely impact local
publishers and authors.
IFRRO notes that most uses permitted by the proposed exceptions are already being licensed by
DALRO. In 2011 the Copyright Review Commission considered that both the negotiated tariff and
the commission charged by DALRO to be acceptable. Because of the existence of an effective and
efficient licensing regime through DALRO, access by the education system to quality education
content at a reasonable price is already assured. Disrupting the existing balance by introducing
new exceptions will impede the delivery of quality education in South Africa.
As a comparison, exceptions for education were introduced into Canada in 2012. The immediate
impact of the introduction of the new exceptions was the reduction of collective licensing revenue
for publishers and authors and the closure of several educational publishers, both local and
international, reducing the quality content available to Canadian students. Ongoing and expensive
litigation to establish the scope of the exceptions, creating uncertainty about permitted copying is
now the norm in Canada. The result is that significant harm has been done to the Canadian
educational publishing sector, the inevitable consequences of which are an increased dependence
on imported educational content. We believe that the South African government would not want a
similar outcome for South African students and teachers.
Here, we reiterate our earlier comments about adopting a
licence override approach to exceptions,
particularly those for education.
3. Private Copying
IFRRO notes section 11 of the Bill proposes to introduce a new section 12A (1) (j) into the
Copyright Act as a private copying exception. The uses contemplated by the provision are wide,
and include any non commercial purpose. There are no restrictions on the number of copies to be
made, the continuing ownership of the original, or other conditions that would limit the impact of
an unremunerated exception on copyright owner’s legitimate markets.
Although private copying is permitted in many other countries, because of the market harm that
such provisions can cause, private copying is either remunerated by means of a levy system, or the
uses permitted are extremely circumscribed. Further information about the number of private
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IFRRO submission on the South African Copyright Amendment Bill (B13- 2017)
copying schemes in force or under active consideration is found in the WIPO publication,
International Survey on Private Copying -
Law
and
Practice
2016
-
http://www.wipo.int/publications/en/details.jsp?id=4183
The recent experience in the United Kingdom is useful to note. In 2014 the UK government
introduced a private copying exception which was later struck down as the evidence of its impact
on the copyright owners market was inadequate -
https://www.gov.uk/government/news/quashing-of-private-copying-exception
Similarly, in Australia where private copying is permitted without remuneration, the uses
permitted are extremely circumscribed, in order to avoid harming the copyright owner’s markets -
http://www.austlii.edu.au/au/legis/cth/consol act/ca1968133/s43c.html
IFRRO notes that in earlier consultations the South African government considered introducing a
private copying levy to compensate copyright owners and to ensure that consumers could make
copies of their legally acquired content without fear of infringement.
IFRRO submits that the South African government should again consider introducing a private
copying levy to legitimise private use as we understand has been done in Nigeria, Cameroon,
Ghana, Burkino Faso and is being considered in Kenya, Uganda, Senegal and Congo Brazzaville.
4. Exceptions for Libraries
IFRRO notes the extensive list of activities that libraries, museums, archives and galleries will be
authorised to undertake in the new sections 19C of the Copyright Act (section 18 of the Bill), as
well as the insertion of a fair use provision for libraries to preserve and provide access to works in
their collection in section 10 of the Bill, amending section 12 of the Copyright Act.
Although recognising the important role of libraries and similar institutions in preserving and
transmitting cultural heritage, IFRRO is concerned at the scope of these provisions. Again, IFRRO
reminds the Committee that all exceptions to copyright, including those for libraries must comply
with the three-step test in the Berne Convention–
apply only in certain special cases, not conflict
with the normal exploitation of the work and not unreasonably prejudice the legitimate interests of
the rightsholder.
IFRRO notes that in the USA, where the doctrine of fair use originates, that copying for library
purposes is not considered fair use, and the specific provisions for library copying are quite
limited.
Given the long list of activities enumerated in the proposed section 19C, IFRRO submits that the
proposed fair use section 10(1)(vi) be deleted altogether, as it is difficult to see what legitimate
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IFRRO submission on the South African Copyright Amendment Bill (B13- 2017)
library activities could be authorised by the section that are not already spelt out in proposed
section 19C. IFRRO is concerned that the existence of parallel provisions with different tests as to
the permitted usage and eligible institutions will lead to uncertainty and confusion, with the
opposite effect to that intended.
In respect of proposed section 19C, IFRRO notes that the current test for eligibility is that the
activity must not be for commercial purposes. IFRRO submits that this restriction is not
sufficiently clear, may breach the three-step test in the Berne Convention and may lead to the
interpretation that for profit organisations can rely on the provisions. This would lead to the
situation in which copies supplied to users by libraries in commercial organisations will substitute
for a copyright owner’s market.
IFRRO submits that a better test would be
is not used for direct or indirect commercial gain or
advantage. In addition, the libraries able to rely on the section should be limited to
non profit
libraries and the works available to be used must be restricted to works legitimately acquired by
the non profit library.
In addition, we urge the South African government to introduce a
licence override provision into
the library exceptions.
IFRRO also notes proposed section 19C (9), enabling the use of works when permission cannot be
obtained, an orphan works provision. This overlaps with the specific regime for the use of orphan
works in proposed section 22A of the Copyright Act (section 22 of the Bill), and will create
confusion and a lack of clarity as to the possible use of orphan works. IFRRO submits that a
single regime should apply and that proposed section19C (9) should be deleted. We comment on
proposed section 22A below.
5. Exceptions for persons with disabilities
IFRRO supports ratification of the Marrakesh Treaty on improved access to published works for
persons who are blind visually impaired or otherwise print disabled. We participate actively in the
WIPO initiative Accessible Books Consortium to facilitate such access and to implement the
Treaty.
IFRRO supports our member PASA’s submission on the proposed drafting of an exception to
copyright for the visually impaired.
6. Orphan Works
IFRRO notes the orphan works exception in proposed section 22A of the Copyright Act (section
22 of the Bill). We are disappointed that the South African government has not chosen to explore a
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IFRRO submission on the South African Copyright Amendment Bill (B13- 2017)
Art.4(1)(b)
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IFRRO submission on the South African Copyright Amendment Bill (B13- 2017)