Let me take you through Copyright 101 for the uninitiated: your work is an asset; your rights need protecting; and licensing is the way forward.
In short, these precepts drive the lifeblood of the economy. It’s based on law and the sanctity of contract.
Copyright seeks to preserve the rights of individuals and businesses in this regard.
In any robust jurisdiction the following is necessary:
First, copyright must empower creativity, innovation, and the dissemination of knowledge, and ensure that creators be compensated for their creative efforts.
Second, copyright must benefit consumers by promoting free markets and competition. By recognizing well-defined and enforceable property rights – yes, property rights – it incentivises creators to take risks.
Third, copyright must support an internet that works for everyone. Copyright must promote creativity, while also promoting new technologies and business models.
Fourth, copyright must provide creators with modern protections. Technology and the marketplace are evolving faster than the law. This requires flexibility.
And fifth, copyright must provide for incentives and accountability. Sound copyright policy must recognize that the solution to infringement is in society’s interest, and any revised copyright act must include provisions that ensure the effective protections of creators’ rights.
With this in mind, ask yourselves why are certain companies, based in certain nations, capable of consistent innovation?
Why do they ruthlessly pursue improvements, seeking an ever more sophisticated source of competitive advantage?
Why are they able to overcome the substantial barriers to change and innovation that so often accompany success? In no small measure … a robust copyright regime plays its part.
In this vein, we at the DA, where the brains trust of this House resides, have shown a willingness to work with others to review and update laws to better reflect changes in technology that have occurred over the years.
But we will not support, what has been called, a “mock review” that becomes nothing more than a gutting of copyright law as we know it. What is clear is that in the depths of the dusty soul of ANC policy is nothing but abject surrender to the least common denominator.
Professor Karjiker, an eminent professor of Intellectual Property Law at Stellenbosch University has been clear and vocal on this.
By getting the government out of the business of setting the terms and conditions, we could enable creators to further invest and experiment with new content and distribution models, and spend more time and resources composing new works – to the benefit of consumers, creators and the strength of our cultural and creative economy.
A balance must be struck, bread and liberty are not incompatible.
But overaggressive copyright law has adversely affected innovation, and innovation is crucial to economic growth.
Signing a treaty triggers a timeline within which the signatory must become compliant. Have we been able to domesticate international treaty obligations, in this regard, into our national law? No, we haven’t. We should have been doing this over the past 15 years – but alas.
As Karjiker points out, the Standing Advisory Committee on Intellectual Property has been non-existent for the past 10 years. This committee should be overseeing intellectual property law developments.
The approach now appears to be to get the legislation to be in accordance with the relevant treaties, and then to sign the treaties, rather than the other way around. There’s an expressive Afrikaans phrase to describe this.
At this stage, the Bill still traverses two regimes. The fair dealing approach, which has been our historical approach, is a closed list of exceptions, and the American fair use type of approach, which is more open-ended, allowing the courts to decide. This bill still has to decide if it is Arthur or Martha.
Legislation should not be hurried, and moreover what we don’t need is to look at complex law through the wrong end of a municipal drainpipe.
Our minds need to be applied, expert opinion sought, and all the views of all interested stakeholders taken into account.
Allowing universities to essentially copy publishers’ books, this should have been preceded by an economic impact assessment. The DTI apparently did an investigation of sorts, but this should have been released in full so that legislators and experts could review the principles applied.
The revised version of this Copyright Amendment Bill has caused great concern for authors and publishers, who fear that the weakening of copyright protection will have an adverse impact on their very livelihood.
But here anything can pass through Parliament as legislation. This places the country’s legislation, and the integrity of our intellectual property regime, at peril.
Not only has the technical drafting been poor, but the department, and the ANC in the portfolio committee, are railroading a particularly skewed agenda through Parliament.
It is necessary to guard against diluting intellectual property rights without regard for the consequences for the country’s future growth prospects. Our greatest chance of boosting our economy in the long run is by growing the knowledge economy.
Whilst many issues that the bill seeks to address merit attention, the ANC’s proclivity to be driven by populist redress and dubious lobby groups without due consideration of the legal, and socio-economic consequences must be guarded against.
The Minister should demand a full report (which should be made public) on why this process has been so shambolic and skewed. The public need to know what information was relied on for proposals and who was instrumental in shaping these proposals.
Following such a report, the department should have been sent back to the drawing board to start a legislative process that will pass constitutional muster, which this bill will not. All in all, this is like trying to pick up mercury with a fork.
The DA cannot support this bill. The Honourable Williams will tell you that we are opposing everything. Perhaps you’re now beginning to understand why we oppose these Bills.
It’s a question of fact over fiction.