Wikimedia South Africa/Copyright Amendment Bill

This page documents Wikimedia South Africa's efforts to amend the South African Copyright Act (old 1978 act|new 2019 bill). The effort was initially, but always primarily, focused on getting Freedom of Panorama (ZA) included but later expanded to include support for Fair Use. This effort was driven and conducted on behalf of Wikimedia ZA by Douglas Scott.

Explainer: What is open knowledge? (A short history of copyright)"

As an organisation that promotes free knowledge Wikimedia South Africa feels strongly compelled to support the reform of copyright law to allow for easier sharing of knowledge and thereby promote the public interest.

BackgroundEdit

Some affected images due to no FoP
Gugulethu Seven Memorial
Mandela Capture Site Monument

Freedom of PanoramaEdit

Wikimedia South Africa first got involved in our copyright advocacy efforts following the chapter's experience with organising Wiki Loves Monuments 2012 (WLM 2012). Initially it was hoped by the WLM 2012 organisers that we could accept photographs of both old and recently build monuments. Thereby allowing us to record both colonial era cultural heritage as well as more recent monuments to important events and people such as those celebrating the struggle against apartheid. However, whilst there were no problems with accepting photographs of colonial era monuments, it was correctly pointed out to by some of our members that we could not accept photographs of more recent public monuments. This created an unacceptable situation whereby we were prevented from covering all of South Africa's public history.

The reason for this situation was due to the South African Copyright Act's lack of clarity regarding photographing public works of art such as monuments. We recieved legal advise from Dr. Tobias Schonwetter, Director of the Intellectual Property Unit at the University of Cape Town that although the law was unclear with regards to submitting photographs of recently built public works of art if we were challenged in court it would likely be the case that we would lose. This situation played out in Sweden in 2016 proving the need to us in South Africa of a Freedom of Panorama clause to resolve the situation.

A list of media deleted or nominated for deletion from Wikipedia and Commons due to Freedom of Panorama related issues can be found here.

The 2019 bill (in section 14 which amends section 15 of the 1978 act) makes an allowance for Freedom of Panorama when it states:

The copyright in an artistic work shall not be infringed by its [inclusion] use in [a cinematograph film or a television broadcast or transmission in a diffusion service] another work, if—

(i) such [inclusion] use is merely by way of background, or incidental, to the principal matters represented in [the film, broadcast or transmission] that other work; or

(ii) the artistic work so used, is situated in a public place. (b) The copyright in an artistic work shall not be infringed by the issue to the public of copies, or the communication to the public of anything, whose making was by virtue of this subsection not an infringement of the copyright.’’

Fair UseEdit

There were two reasons why Wikimedia South Africa supported this. The first was due to the provisions in the proposed bill that gave students fairer access to learning material in text books without having the pay very high textbook costs. In a country with South Africa's vast economic disparities and poverty levels free access to such knowledge is very much in line with the free knowledge movements goals. The second reason is that adopting fair use streamlines Wikipedia editing policies with regards to Fair Use in South Africa with international norms that rely on US fair use provisions. Understanding copyright law is already a complex process with a steep learning curve for anyone let alone an editor who just wants to edit Wikipedia and related Wikis. When this complexity is expanded to also include the very different fair dealing regulations of South Africa (for South African focused editors) this becomes vastly more complex and limiting to efforts to contribute to the free knowledge project. An example of this is in the submitting of images.

Clause 13 (sections 12A, 12B, 12C, and 12D) of the bill will allow for fair use to effectively replace the fair dealing regime in South African copyright law.

Role playersEdit

SupportersEdit

F: Some notable organisations actively supporting the Copyright Amendment bill:
Name Status Industry Country of origin Stated reason for being in support of the bill.
Wikimedia South Africa (WMZA) Non-profit Free knowledge In favour of Freedom of Panorama and Fair Use; all included in the bill.
ReCreate South Africa Umbrella organisation multiple Collective organisation representing a broad group of creators that are in favour of bill and fair use in particular. Some support easier access for libraries and study, some for reuse for public benefit purposes like documentary film makers, others support elements in the bill that expand royalty rights for actors and artists.
Blind South Africa (BlindSA) Non-profit Community interests Support the bill's copyright exception for the blind community to reprint books in braille and its alignment with the Marrakesh treaty for the blind allowing access to content for the disabled.
Library and Information Association of SA (LIASA) Non-profit Education Supports copyright exception for libraries to copy material for archiving, public access to library books, and public benefit.
Southern African Research Universities Association (SARUA) Academic Law Supports fair use.
South African Guild of Actors (SAGA) Trade union Entertainment Supports expanded royalty rights for actors and artists contained in the bill.
South African Democratic Teachers Union (SADTU) Trade union Education Supports copyright exceptions for educational purposes contained in the bill.
Wikimedia Foundation Non-profit Free knowledge In favour of Freedom of Panorama and Fair Use; all included in the bill.
Right2Know (R2K) Non-profit Transparency Supports copyright exceptions for educational, research, and government transparency purposes contained in the bill.
Section27 Non-profit Human rights Supports copyright exceptions for educational purposes contained in the bill.
University of Cape Town Intellectual Property Unit (UCTIP) Academic Law Supports Fair Use.

DetractorsEdit

A: Some notable individuals and organisations actively opposing the Copyright Amendment bill
Name Status Industry Country of origin Stated reason for being against the bill.
Copyright Coalition of South Africa (umbrella organisation) unclear, not listed Claim that the bill will "harm the ability of individuals as well as small, medium and large enterprises in the creative industry to earn a living" and that the bill was "railroaded through" parliament without sufficient consultation. Both are false claims. Also claims that the bill panders to "apparent pervasive influence of big technology companies, specifically Google" and that it will "only benefit big technology companies at the expense of [South African] creators of copyright works."[1]
Coalition for Effective Copyright in SA (umbrella organisation)
Publishers Association of South Africa (PASA) Publishing industry body Publishing Allege that fair use will allow for wide scale copyright piracy.
SAMRO Collecting Society Music Fair use disrupts their business model and allege that it will sanction piracy. Must be noted that the Performers Protection Act (linked to the bill) also introduces criminal penalties for collecting societies caught not paying royalties to musicians; a clause that the collecting societies were vocally against when introduced into the bill.
Dramatic, Artistic, Literary Rights Organisation (DALRO) Copyright asset management organisation multiple
Academic and Non-Fiction Authors of South Africa (ANFASA) Writers representative body Publishing
PEN Afrikaans[2] Writers and publishers representative body Publishing
Multichoice (a NASPERS company) for-profit company Streaming service Fair use and royalty rights for artists disrupts their business model.
Netflix for-profit company Streaming service Fair use and royalty rights for artists disrupts their business model.
Motion Picture Association International film lobbyist organisation (USA) Film Fair use and royalty rights for artists disrupts their business model. Claim that the bill will force foreign investment in the South African film sector overseas.
International Intellectual Property Alliance International film lobbyist organisation (USA) Film Fair use and royalty rights for artists disrupts their business model. Claim that the bill will force foreign investment in the South African film sector overseas.
South African Institute of Intellectual Property Law (SAIIPL) Patent/IP attorney representative body Law Worries about constitutional implications, allege that no legal assessment was done, allege that no "adequate" socio-economic impact assessment was done.
Southern African Freelancers' Association (SAFREA) Membership representative body Freelance workers "Fair use is misuse." Argue that fair use is arbitrary deprivation of property through expropriation and denies the right to authorship.
International Federation of Film Producers Associations (FIAPF) International film lobbyist organisation (Europe) Film State that the bill will disrupt their business model in South Africa and allege it will create legal uncertainty for them. Claim that the bill will force foreign investment in the South African film sector overseas.
Recording institute of South Africa (RiSA) Trade Association for South African Record Companies Music Against fair use specifically. Accuse it of being too broad and allege that it will let people use works without having to ask permission of the author.
Sadulla Karjiker - Stellenbosch University: Anton Mostert Chair of Intellectual Property Law Academic Law Alleges that the bill is poorly drafted and that they were unfairly excluded from the drafting process. It must be noted that the numerous rounds of inclusive public consultation on the drafting of the bill by government since 2015 makes this accusation difficult to believe to the pro-bill side. In 2021 Karjiker and Prof Owen Dean publish a book critical of the bill.[3]
South African Music industry Council (SAMIC) Trade Association for South African Record Companies Music Claim that fair use will allow for the "usurption" of copyright by introducing a process that will be a burden for record labels by making it more difficult to assert copyright and seek maximum compensation. Argues for enhanced fair dealing rights for copyright holders.

CAB vs PPBEdit

To clarify some terminology; whilst the Copyright Amendment Bill (CAB) was being drafted by the Parliamentary Portfolio Committee on Trade and Industry in 2017 it was decided to split off the section of bill pertaining to the rights of performers and obligations of collecting societies into the Performers Protection Bill (PPB). This was done as concerns over the adoption of Fair Use into the CAB was stalling passage of the bill and the committee wanted to pass the elements contained in the PPB as quickly as possible so as to protect the rights of impoverished artists, most notably musicians. The PPB however still remains intimately linked to the CAB and is reliant on it.

Time LineEdit

  • F -> indicates articles, individuals or content that is For the bill
  • A -> indicates articles, individuals or content that is Against the bill

BeginningEdit

 
It was discussions about the copyright of uploading recently built national monuments at the launch of Wiki Loves Monuments 2012 (held at the Castle of Good Hope) that made us aware of the need for Freedom of Panorama in South Africa.
  • May 2012: Wiki Loves Monuments 2012 highlights the need for Freedom of Panorama. This is reinforced by similar experiences at subsequent Wiki Loves Monuments events between 2012-2015. We are prevented from accepting photograph submissions of recently built monuments, such as those about the struggle against apartheid, due to a lack of Freedom of Panorama.
  • 10 October 2012: Following a request for advice by Wikimedia South Africa Professor Tobias Schonwetter (UCT - IP Law unit) points out that photographs of older monuments past a certain date are allowed to be submitted to the Wiki Loves Monuments competition as their copyright has expired. However he states that it is very likely the case, given the outdated and poorly worded nature of the South African Copyright Act 1978, that newer monuments can not be uploaded as the owners of said works could conceivably sue for royalties of photographic depictions of their work. None of the exceptions in the 1978 Act would allow for uploading to Wikimedia Commons and would therefore disqualify such photographs from the competition. This highlights the urgent need for reforming and updating the South African Copyright Act of 1978.
  • 2 September 2014: the complications of a lack of Freedom of Panorama is again highlighted by a concerned South African Wikimedian.
  • 31 October 2014: The Wikimedia South Africa Annual General Report for 2014 is published stating for the first time that the Wikimedia chapter for South Africa intends to advocate for the adoption of Freedom of Panorama in South African copyright legislation (page 23). Explicit mention is made that the right to take and share photographs under a Creative Commons license (thereby allowing their upload onto Wikimedia Commons) of national monuments and other public works of art is the reason for this decision.

"In the future we [Wikimedia South Africa] will also be focusing more on lobbying in support of getting the Copyright Act of 1978 amended, so as to allow for Freedom of Panorama. Currently, it is not possible to take picture of recently built ‘public art’ such as monuments, statues and stadiums and submit them to commons in South Africa. This has also prevented us from accepting pictures of recently built monuments, such as monuments commemorating the struggle against Apartheid to Wiki Loves Monuments. This is due to the very vague way in which the Act was written when coving these issues. We are working with Creative Commons South Africa to promote and encourage government to amend the Act, so members of the public can freely take photographs of these places to share these wonderful places with everyone in the world."[4]

-Wikimedia ZA 2014 Annual General Report

  • August 2015: Attended the the Internet Rights, Cultural Development and Balancing Features in SA Copyright Reform conference where Wikimedia ZA is introduced to a number of important participants in the South African copyright community broadly. Was invited to attend by Wikimedia ZA's friends at Creative Commons South Africa to discuss the need for Freedom of Panorama in South Africa.
  • September 2015: Responded to a call for submissions by the Department of Trade and Industry on the Copyright Amendment bill with a submission advocating for Freedom of Panorama
  • 16 September 2015: Academics (UCT IP unit and Collage of Law at American University) sends letter to Department of Trade and Industry calling for both Fair Use and "right of panorama" (Freedom of Panorama) to be included in the new and currently being drafted Copyright Bill.
 
A presentation at the Workshop on the South African Copyright Amendment Bill in Cape Town.
  • 6 December 2016: Attended the Workshop on the South African Copyright Amendment Bill in Cape Town hosted by Wits University and the University of Cape Town's Intellectual Property Unit. The workshop included presentations on the current provisions of the bill that promote various interests followed by technical discussions about how the language could be supported or improved in the upcoming legislative process. Met a number of important allies at this event including academics associated with the Program on Information Justice and Intellectual Property.
  • 12 December 2016:It was decided at the 2016 Wikimedia South African Annual General Meeting that Wikipedia banner add be run to raise awareness of the lack of freedom of panorama in South Africa, the problems this causes for Wikipedia editors, and a way forward to possibly fix it.
  • May 2017: Mandate from South African Wikipedia community to more actively and publicly advocate for Freedom of Panorama
The other South African language Wikipedia communities at the time were very small communities with less than 3 active editors in any one month. As such it was felt to work through the chapter to get their feed back as the most active editors in those language Wikis were senior chapter members.

Calling for government to adopt FoP & FUEdit

 
Presentation given to the South African Parliament by Wikimedia South Africa on 3 August 2017 advocating for Freedom of Panorama in the Copyright Amendment Bill.
  • 14 June 2017: Wikimedia ZA starts mobilising in support of Freedom of Panorama in South Africa by launching a petition and page on Commons to explain the need. A Wikipedia banner add ran for at least one month visible to South African visitors to Wikipedia only. The petition gathered 730 signatures calling for Freedom of Panorama in South Africa.
  • 21 July 2017: Wikimedia ZA is invited to attend the Amendment Bill Round Table on Fair Use hosted by the Mandela Institute, Google, Freedom of Expression Institute, and the American University Washington College of Law to discuss the development of the bill with as many different role-players as possible.
  • 3 August 2017: Wikimedia South Africa gave a presentation to the South African parliament on need for Freedom of Panorama in the draft Copyright Amendment Bill. A written account of that presentation can be viewed at the Parliamentary Monitoring group here.
  • Early 2018: Freedom of Panorama added to the Bill
  • 17 May 2018: ReCreate South Africa is created to advocate for Fair Use in the Copyright Amendment Bill. Wikimedia ZA is a founding supporting member of ReCreate SA.
 
Cachalia addressing the Globalizing Copyright User Rights session at the Wikimania 2018 pre-conference.
  • 19th July 2018: the session Globalizing Copyright User Rights is hosted at the Wikimania 2018 pre-conference. Hosted by Douglas Scott and Sean Flynn to discuss copyright globally, South Africa's place in it, and its relevancy to the Wikipedia/Free Knowledge movement. Democratic Alliance Ghaleb Cachalia (MP), Parliamentary Portfolio Committee on Trade and Industry, delivers keynote address. He later votes against the bill when it comes up for vote in Parliament.
  • 28 October 2018: F ReCreate releases a video (Fair Use in South Africa, YouTube) explaining the need for Fair Use in South African Copyright law. It features the following supporters of Fair Use in South Africa:
  1. Drone pilots/film makers
  2. Wikimedia South Africa/Wikipedia editors
  3. Documentary film makers
  4. Liberians
  5. Student activists
  6. Intellectual Property education experts
  7. Freedom of expression activists
  8. Blind community
  9. Game development community

Passage of the billEdit

 
  For the CAB: 197 votes
  Against the CAB : 4 votes
  Not present to vote
Ministers of parliament voting on the CAB on 5 December 2018.

5 December 2018: Bill is passed by the house and sent to the Council of Provinces. 197 MPs voted in support of the CAB whilst 4 voted against, no MPs abstained whilst 199 of the 400 total MPs were not present on the day. It was a strategy of the opposition parties to try and prevent the passage of bills on the day by not being present to vote on them in the hope that there would be few enough MPs present to pass bills. This strategy was not successful on the day. A video and detailed account of the vote along with speeches by political parties on the justification for their vote can be seen here: https://www.re-createza.org/new-page

Voting was as follows:
 
March 2019 pannel discussion with the public co-hosted with ReCreate ZA to explain our position on the bill.
  • 28 January 2019: A FM 1027 Classic Business radio interview with anti-bill panelists presents a number of misconceptions about the bill and key concepts within it such as Fair Use. Repeating the narrative that the new bill will undermine property rights and was done with minimal public consolation.[5]
  • 19 March 2019: F Wikimedia ZA in partnership with ReCreate host a public event with press invited to explain our position on the bill.[6] A recorded version of this press event can be seen here.
  • late March 2019: Bill is passed by the Council of Provinces and sent to the President for enactment

Waiting for Presidential signatureEdit

  • 27 March 2019: A South African photographer, Pri Hollis, publishes Business Day op-ed against the bill. Alleging that the Fair Use clause will ensure that artists will have "no protection from rampant plagiarism". Repeating a common misconception about Fair Use and how it works.
  • 16 April 2019: A Coalition for Effective Copyright in SA lobby group states that they will fight to prevent the President from signing the Copyright Bill into law. They argue against the Fair Use provision and state that the bill will result in the "recolonisation of our curriculum".[7]
  • 24 & 25 April 2019: F Wikimedia South Africa publishes two opinion pieces in Business Day[8] and GroundUp[9] calling for President Ramaphosa to sign the recently passed bill and why we support the bill.
  • 10 July 2019: F ReCreate Policy Fellow, Nontando Tusi, writes an op-ed in Business Day arguing in support of the bill and reiterating calls for the President to sign the bill.
  • 15 August 2019: A Prof Keyan Tomaselli (University of Johannesburg) writes op-ed arguing that the "Copyright bill means expropriating creativity without compensation." He states that he is against signing the bill as he feels it would rob people of their "sweat of the brow" rights to derive an income from their work. This is a common misconception about Fair Use and how it works that the anti-bill lobby tries to spread so as to scuttle the bill.
  • 31 August 2019: A DALRO and other anti-bill groups host a conference to talk about why they are against the bill. Where Carlo Scollo-Lavizzari (Lenz Caemmerer) stated that "if enacted, the fair use provisions of the Bill would run counter to international copyright norms."[10]

His Excellency Cyril Ramaphosa,
President, Republic of South Africa,
Union Buildings
Private Bag X1000,
PRETORIA,
0001
South Africa

Date: 29 January 2020
Subject: Copyright Amendment Bill

Your Excellency,

I write today on behalf of Wikimedia South Africa, the volunteer driven non-profit chapter for South African Wikipedia, the free online encyclopedia, editors and free knowledge contributors. As volunteers in the Wikimedia movement, we understand the important role that access to knowledge plays in South Africans’ lives. This is why we have spent the last 6 years advocating for amendments to the South African copyright act which will allow South Africans to fully participate in free knowledge. These amendments now sit on your desk as a part of the Copyright Amendment Bill, and I ask today that you sign this bill into law.

One of the most important inclusions for free knowledge in this bill is the codifying of fair use in South Africa. Fair use, and its less expansive counterpart, fair dealing, have been adopted by countries around the world to empower their creators, educators, journalists, and innovators. Fair use, which allows for the use of a copyrighted work for certain specific social beneficial purposes like criticism, reporting, and education. One of the largest test markets for fair use is the United States, where citizens have been benefiting from these laws for years. Some examples of fair use in the United States include: critics using stills or clips from content they are criticizing; investigative reporters telling their stories using primary sources; and artists building their work on foundations laid by prior generations.

We understand that there have been criticisms around the inclusion of fair use in the Copyright Amendment Bill, with claims that the new bill means that South Africa cannot adequately protect foreign copyright interests. We respectfully disagree. A lack of fair use in our laws only serves to further a status quo where the rest of the world can freely use and benefit from the work of South African creators, but South Africans cannot do the same. Fair use, at its heart, protects publicly beneficial uses of copyrighted works. The introduction of fair use in this bill will simply allow South Africans to be better protected when they choose to use both domestic and foreign copyrighted works in their art, criticism, reporting, and research the way others have been doing across the globe for years. On Wikipedia, fair use plays an important role in contextualizing facts, and illuminating knowledge. At Wikimedia South Africa, we want South Africans to be able to share their knowledge with the world, and fair use is an important part of that.

We are also thrilled that the bill has included provisions which codify freedom of panorama in South Africa. Freedom of panorama is a copyright principle which allows for the photographing of artistic and architectural works in public spaces. Currently in South Africa, taking or sharing photographs of public spaces which contain statues or memorials are technically in violation of the author of that work’s copyright and could result in a lawsuit. This means that many markers of South Africa’s vibrant and important history legally cannot be shared by its own citizens online. Worse, because copyright lasts 50 years after the death of the author, no post-apartheid statues or monuments may be photographed and shared online legally in South Africa, leaving a literal blind spot in our nation’s visual history online. As Wikipedians, we understand the importance of documenting our history and sharing South Africa’s rich culture with the world, which is why we believe freedom of panorama is such an important inclusion in South Africa’s amended copyright law.

At Wikimedia South Africa, we are proud to share our knowledge of South Africa and its people with the world. The Copyright Amendment Bill will be a big step toward enabling Wikimedia South Africa and all South Africans to fully access, share, and participate in knowledge online. This is why we respectfully ask that you sign this bill into law.

Sincerely,

Douglas Ian Scott
President

Wikimedia South Africa
http://wikimedia.org.za
2012/038827/08
8 Spin Street, Cape Town, Western Cape, 8000, South Africa

  • 29 January 2020: F Wikimedia ZA publishes an open letter to President Ramaphosa calling for him to sign the bill (see letter to the right).
  • January 2020: A United States Trade Representative (USTR) states that South African adoption of the bill would threaten South Africa's access to the Generalised System of Preferences (GSP) trade agreement. Concerns over respect for property rights is expressed due to, amoungst other things, adopt Fair Use (this is ironic given that the US invented and currently uses the legal concept). This happend after the International Intellectual Property Alliance submitted a petition to the USTR to pressure the SA government.[11] The Wikimedia Foundation along with others advocates for South Africa as the bill will not violate property rights.
  • 26 May 2020: F an account of the US film industry lobby comes out showing how the US film industry has coordinated efforts to put pressure on the SA government to drop the bill between December 2018 to November 2019. It includes their efforts to lobby the USA Trade Representative to pressure the SA government.[12]
  • 20 March 2020: A European Union Representative in South Africa (run by the EEAS) publishes letter attacking the Copyright Amendment bill and accusing it of undermining property rights. The EU takes aim at the proposed adoption of Fair Use in the bill, particularily at the bills use of having both a Fair Use provision in addition to a list of copyright exceptions in the original Fair Dealing of the old act.[13][14] Libraries and Wikimedia chapters in the EU write counter letters in support of the bill and asking the EU to respect South Africa's right to pass its own legislation. EU replies with a non-committal response.
  • 7 June 2020: Blind South Africa takes the Presidency to court for violating their constitutional rights to access to information by not signing the bill.[15]
  • 8 June 2020: A Noted anti-bill advocate and South African legal scholar, Sadulla Karjiker, writes op-ed criticising Blind SA's court action by calling it "political expediency".[16]
  • 10 June 2020: F Blind SA responds to Karjiker's article fiercely criticizing him for trying to reduce or belittle the right of blind people to understand and advocate for their own rights.[17]

Sent back to ParliamentEdit

  • 19 June 2020: Blind SA was informed that the "President had now decided to refer the CAB to Parliament on the grounds of certain specific constitutional reasons." Reasons cited include:
  1. "Incorrect tagging of the Bill;"
  2. "Retrospective and arbitrary deprivations of property;"
  3. "Insufficient public hearing on Fair Use;"
  4. "Impermissible delegation of legislative power to the Minister; and"
  5. "Copyright exceptions and limitations that are in conflict with WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty."[18][19][20]
This could mean that the existing bill would either be further amended by the 27th Parliament or it might be completely redrafted from scratch.
  • 22 June 2020: F Infojustic.org summarises the president's decision and reasons. It quotes Prof Sean Flynn (who is associated with Infojustice) that the decision to send back the bill due to "alleged issue with compliance of the limitations and exceptions with the international “3-step test” in the Berne Convention and WTO Agreement on Trade Related Aspects of Intellectual Property Rights is puzzling" given how similar it is to exceptions in other countries that comply with the aforementioned treaties.[21]
  • 24 June 2020: F Blind SA, Recreate ZA, SADTU, African Guild of Actors, and the Independent Beneficiaries release a open letter published in the Mail & Guardian jointly calling on the president to support the Copyright Amendment bill. They make a social-historical argument for signing the bill focusing on its redistributive benefits in a poor unequal society.[22]
  • 2 July 2020: A Swiss based advocate André Myburgh publishes op-ed in Mail & Guardian critical of the bill and supportive of the Presients send back of the bill to P.[23]
  • 7 July 2020: A American lobbyist Neil Turkewitz publishes an op-ed in the Daily Maverick critical of the bill thereby vocalising the Copyright Alliance's supportive point of view on the President's decision send the bill back to Parliament. [24]
  • 9 July 2020: F An open letter from Chicco Twala accusing the music collecting societies of robbing musicians.[25] Thereby highlighting the need for the Performers Protection bill.

Parliamentary hearingEdit

At 9:00 on the 18 August 2020 a hearing was held by the South African Parliament on the bill. Introduction to hearing given by Minister of Trade and Industry Ebrahim Patel. In summary, the minister was supportive of the bill and Fair Use in particular but did suggest that the retroactivity clause regarding the rights of creators to get income from their work be reviewed as it might not be constitutional.  

Objections raised with the bill and discussed by the minister were:

  • Incorrect tagging of the bill - minister advised that the bills do not meet the test of 'substantiality' but section 75 tagging has a low risk that specific provisions of bill cover cultural matters or trade thereby making it incorrectly tagged. If this is the case it will delay the finalising of the bill. Retagging recommended by minister.
  • Deprivation of property - exploitation of creators in the past through unfair contracts led to retrospective rights for creators of content. Government legal advisors concluded that alternative mechanisms be considered to address the issue of creator exploitation.
  • Concerns that substantial discretionary powers are vested in the minister which might make it unconstitutional.
  • Public participation - minister talks about fair using vs fair dealing, seems supportive of fair use. This Fair Use issue seems to be the heart of the bill and the public participation challenge as many stake holders expressed opinions for or against it. Minister makes clear that the bill has a Fair Use foundation but also has a Fair Dealing list to make clearer what is exempt from copyright protection. Two year public participation held which meant it was not necessary to reconduct the public participation process. However two constitutional cases (Doctors for Life) highlighted the need get more public participation.
  • Copyright exceptions - objections that the exceptions are too broad. Legal view that three-step-test determined that exceptions were not too broad. Exemptions are reasonable and justifiable and not in breach of international treaties.
  • International treaty implications - bill sent back to Parliament by President for reconsideration of treaty implications. Opinion of Minister is that the bill is aligned with treaty obligations. But Parliament still encouraged to reconsider

Bill may not pass constitutional muster and this referral back to Parliament is to ensure that the bill is constitutional.

Post-hearing activitiesEdit

  • 24 August 2020: F Justus Dreyling from Wikimedia DE publishes an article in Germany about the South African Copyright Act. Summarising why it is important and our experience so far.[26]
  • 24 August 2020: A Secretary for the CCSA, Chola Makgamathe talks to Cape Talk Radio about why they want the bill to go back to Parliament and why they are against the bill. Both the interviewer (Africa Melane) and Makgamathe state that the "South Africans are against Fair Use". Recreate sends a complaint about this as bias and is invited to an interview on 25 August.
  • 25 August 2020: F Tebogo gave an interview on behalf of Recreate supporting the view and disputing the points raised by Makgamathe in the previous interview.[27]
  • 25 August 2020: A Narrow Basis for a Decision with Wide Implications - this blog post for the Library Policy advocacy group neatly summarizses the governments positions on the Copyright Bill in 2020.
  • August 2020: F Parliament can uphold the Constitution by passing the Copyright Amendment Bill — again, opinion piece by Sanya Samtani supportive of the bill. Discusses its positive impact on students, its impact on property rights, and user rights.
  • 3 November 2020: A Ebrahim Patel turns a deaf ear to copyright alarm bells, opinion piece by Glen Gillis, CEO of South African animation firm Sea Monster that is critical of the bill arguing that it will have a negative impact on the creative industry by undermining property rights. Repeats many misconceptions spread by the Copyright Alliance about the bills impact on copyright.
  • 10 November 2020: F ReCreate South Africa hosts a webinar for teachers, learners, academics and creatives content producers on the bill and how it is beneficial for them. Attended by around 40 people.
  • 10 December 2020: F Blind SA and other pro-Bill groups organise a protest march in support of the bill in Pretoria. This also includes an interview with Blind SA on SABC News on the same day.
  • 12 February 2021: F Termination rights - A first step towards reparations in the creative industries, opinion piece by Adwoa Ankoma that argues in favour of the Termination Rights (currently contained within the bill) that would be held by creators of works.
  • 10 March 2021: ACopyright Amendment Bill: Potential Cause For Concern For Trade Between SA And The USA by Maureen Makoko and Chiraag Maharaj of the law firm Adams & Adams. This article highlights the potential negative impact of passing the bill as it might prompt the United States government to remove South Africa from the African Growth and Opportunity Act thereby negatively impacting trade. It points out that this review of the bill follows lobbying in the United States against the South African bill by the International Intellectual Property Alliance (IIPA) who allege that the Copyright Amendment Bill and Performers' Protection Amendment Bill will "fail to "provide adequate and effective protection" of American copyrights."
  • 28 March 2021: F South African Copyright Amendment Bill – Still No Progress! Denise Nicholson, a long time and very strong supporter of the bill, gives a summary on the two year long delay in the signing of the Copyright Amendment bill into law. Nicholson summarizes how the bill has been repeatedly delayed and stalled, the arguments made by its critics to stall it, and long drawn out process in parliament it is still being subjected to.
  • 7 April 2021: F Challenge to the constitutionality of ‘outdated’ Copyright Act heads to court BlindSA launches a case in the high court of South Africa (Gauteng Division) to force the presidency to sign the bill into law, arguing that by not passing it into law the government is violating the Constitutional Rights of blind South Africans to access knowledge in a form accessible to them.
  • 8 April 2021: F Growing up blind: Retired Judge Zak Yacoob helps challenge an archaic law, retired Constitutional Court Judge Zak Yacoob submitts an affidavit to the court in support of Blind SA’s court challenge to the government to sign the bill into law.
  • 10 May 2021: A Parly committee accused of trying to rush through 'defective' copyright bill for political reasons, News24 journalist Ahmed Areff criticises the bill by quoting parties critical of the bill whilst presenting it as anti-creative without consulting or presenting views supportive of the bill. Repeats threats made by foreign interests that they will pull out investments in South Africa if the bill is passed without presenting evidence. News24 is owned by Naspers which also owns DSTV and other entities that have been against the bill as it arguably seeks to erode their monopoly over cable and streamed TV in South Africa.
  • 10 May 2021: F Recreate South Africa hosts a Copyright Press Conference on the Copyright Amendment Bill. A Joint Academic Opinion of the bill is released stating the Constitutionality of the Bill and calling for it to be passed. Speakers at this Zoom webinar includes Andrew Rens, Malebakeng Forere, Faseega SolomonBen Cashdan, Sanya Samtani, Sean Flynn, and Fatima Hassan.
  • 21 May 2021: The Mandela Institute hosts a webinar debate on the bill. People who spoke at the webinar include:
  • Mr. Duma Nkosi, Chair of Portfolio Committee on Trade and Industry, National Parliament - explains Parliament's current concerns
  • Prof. Malebakeng Forere, Associate Professor, School of Law, University of the Witwatersrand - in favour of the bill F
  • Prof. Sean Flynn, American University and University of Cape Town IP Unit - in favour of the bill F
  • Prof. Owen Dean, Professor, Stellenbosch University - critical of the bill A
  • Dr. Joel Baloyi, Entertainment Law & IP Management, Copyright Coalition of SA - critical of the bill A
  • Mr. Ben Cashdan, Filmmaker and Founder, ReCreate SA. Former advisor in Mandela presidency. - in favour of the bill F
 
The letter sent by Wikimedia South Africa (page 1 of 2) in July 2021 to the South African Parliament. It was written in support of clause 13 of the Amendment Bill following a call by Parliament for written submissions on the issue.
  • 4 June 2021: The Portfolio Committee on Trade and Industry issues another call for written submissions on the bill. This time with reference only to clause 13 (sections 12A, 12B, 12C and 12D), clause 19 (section 19B) and clause 20 (section 19C). All submissions have to be submitted by 9 July 2021.
  • 9 June 2021: F Royalties For Artists: Artists struggling to survive (eNCA News), an interview with Recreate South Africa member Jack Devnarain on the impact of a lack of sufficient copyright creator rights on actors in South Africa. Given in the context of the recent death of South African actor Shaleen Surtie-Richards which was believed to have been partly due to a lack of funds despite a long successful acting career. Jack talks about the importance of the new royalty rights that the new bill will afford artists and calls for the bill to be enacted.
  • 6 July 2021: F Wikimedia South Africa submits a letter (see letter on the right) to the South African Parliament explaining why we support clause 13 (fair use) in the bill.
  • 11 August 2021: A Debate rages on over controversial Copyright Amendment Bill , by LINDA ENSOR, Business Day. Article gives an updated account of the controversy surrounding the bill. Particularity around Clause 13 related to fair use. It quotes a number of people and legal scholars who either strongly support or are critical of the bill. More detractors of the bill are quotes than supporters of the bill thereby tilting this article into the 'anti-bill' bias.

Second round of hearingsEdit

A second round of hearings were held by the South African Parliament (Portfolio Committee on Trade and Industry) on the 11 and 12th of August 2021. The committee was held to hear public submissions on clause 13 (sections 12 A-D allowing for fair use), clause 19 (section 19B allowing for General exceptions regarding protection of computer programs) and clause 20 (section 19C allowing for general exceptions regarding protection of copyright work for libraries, archives, museums, galleries and for persons with disabilities).[28] Wikimedia South Africa, along with many other organisations, submitted a letter in support of Clause 13 on 6 July 2021 in the run up to these hearings. It is noted that the lineup of those selected to present to the Committee was heavily populated by detractors of the bill with very few supporters of the bill selected to present.

Chairperson:

  • Nkosi, Mr D (ANC)

Members of the committee (political party):

  • Burns-Ncamashe, Mr Z (ANC)
  • Cuthbert, Mr M (DA)
  • Hermans, Ms J (ANC)
  • Macpherson, Mr D (DA)
  • Mbuyane, Mr S (ANC)
  • Moatshe, Ms R (ANC)
  • Motaung, Ms N (ANC)
  • Mulder, Mr F (FF Plus)
  • Thring, Mr W (ACDP)
  • Yako, Ms Y (EFF)

Alternate Members

  • Cebekhulu, Inkosi R (IFP)
  • Msane, Ms T (EFF)
  • Nontsele, Mr M (ANC)
  • Shaik Emam, Mr AM (NFP)


Video recordings of the proceedings can be seen below:

  • 09:00 – 09:35 Prof Karjiker A
  • 09:35 – 10:05 SAIIPL A
  • 10:05 – 10:35 Klaus Beiter (Associate Prof at North-West University)* F
  • 10:45 – 11:15 Joint academic opinion by:*F

-> Malebakeng Forere (University of Witwatersrand)
-> Klaus Beiter (North-West University)
-> Sean Flynn (American University & University of Cape Town)
-> Jonathan Klaaren (University of Witwatersrand)
-> Caroline Ncube (University of Cape Town)
-> Enyinna Nwauche (University of Fort Hare)
-> Andrew Rens (Research ICT Africa)
-> Sanya Samtani (University of Oxford)
-> Tobias Schonwetter (University of Cape Town)

  • 11:15 – 11:45 LIASA F
  • 11:45 – 12:15 Denise Nicholson F
  • 12:15 – 12:45 SADTU F
  • 13:25 – 13:55 PASA A
  • 13:55 – 14:25 DALRO A
  • 14:25 – 14:55 ANFASA A
  • 14:55 – 15:25 Multichoice* A
  • 15:35 – 16:05 Netflix A
  • 16:05 – 16:35 Personal Managers Association (PMA) F
  • 16:35 – 17:05 Writers Guild A
  • 17:05 – 17:35 SAGA* F
  • 17:35 – 18:05 Independent Black Filmmakers Collective (IBFC) A
  • 18:05 – 18:35 Independent Producers Organisation (IPO) & Animation South Africa (ASA) A
  • 09:05 – 09:35 SAFREA A
  • 09:35 – 10:05 FIAPF A
  • 10:05 – 10:35 RiSA A
  • 10:45 – 11:15 SAMIC A
  • 11:15 – 11:45 CAPASSO A
  • 11:45 – 12:15 SAMRO A
  • 12:15 – 12:45 SAMPRA A
  • 13:25 – 13:55 Artists and Creatives for Fair Royalties and Fair Copyright. Singer Mara Louw presenting.* Also includes a presentation by R2K. F
  • 13:55 – 14:25 BlindSA F
  • 14:25 – 14:55 Copyright Coalition SA A
  • 14:55 – 15:25 Prof Caroline Ncube F
  • 15:35 – 16:05 Section27* F
  • 16:05 – 16:35 ReCreate* F
  • 16:35 – 17:05 Health Justice Initiative F
  • 17:05 – 17:35 South African National Council for the Blind F
  • 17:35 – 18:05 COSATU/TUMSA F

Particularly notable or suggested to view presentations are indicated by a asterix *

Post-second hearing eventsEdit

  • 12 August 2021: F Mara Louw breaks down as she begs parliament to protect artists' rights (The Sowetan) by Andisiwe Makinana. The article details the impact of singer and actress Mara Louw's testimony to the hearing in support of the bill.
  • 12 August 2021: A Proposed copyright law amounts to expropriation without proper compensation: Mbongeni Ngema (Timeslive) by Andisiwe Makinana. Quotes a number of artists and a Stellenbosh University academic who are critical of the bill. Accuses the bill of being “another form of colonialism” and claims that it will result in reduced creativity.
  • 12 August 2021: Artists, musicians critical of copyright bill but librarians welcome it (Business Day) by Linda Ensor. Focuses on the difference in opinion over Fair Use. Blanket implication in the title incorrectly suggests that all artists and musicians are critical of the bill.
  • 12 August 2021: F The Copyright Amendment Bill: A step closer to making rights to education and health a reality (Daily Maverick) by Faranaaz Veriava, Fatima Hassan, Jace Nair, Kaajal Ramjathan-Keogh and Tshego Phala. Argues why the bill needs to be passed for education, health and justice related reasons.
  • 15 August 2021:F South Africans deserve to know why the Copyright Amendment Bill has languished in bureaucratic limbo for four years (Daily Maverick) by Pam Saxby. Saxby discusses the reasons why the bill has taken so long to pass through parliament and concludes that it is representative of the thoroughness of the legislative process and indicative of a robust public participation process involved.
  • 30 August 2021: Pro-bill, former anti-bill, advocate, Tebogo Sithathu, was implicated in threatening a journalist over a lottery money investigation.[29]
  • 21 September 2021: F The South Africa (Gauteng Division) high court rules in favour of a motion brought by BlindSA ruling that sections of the Copyright Act of 1978 is unconstitutional. BlindSA argued that the current act was unconstitutional as it limits blind people's access to knowledge by denying them the right to transcribe content into braille as the law regarded that as an infringement of the copyright of the original authors. BlindSA asked the court to ‘read in’ section 19D of the Copyright Amendment Bill that gives copyright exceptions for the transcribing of material that is unacceptable to blind people into a format that makes that information more accessible to them. BlindSA also stated that they "also believe that Fair Use for educational purposes would enable us to have more access to literary works. We will continue our advocacy with parliament and the provincial legislatures to try to speed up the signing of the bill into law."[30]
  • 9 November 2021: Portfolio Committee on Trade and Industry meets publicly to discuss constitutional issues with the Copyright Amendment Bill. DA committee members question the independence of the academics who ran copyright workshops for MPs (possibly recycling a criticism made by Stellenbosch academics who are heavily critical of the bill that they were not included). Minister of Trade and Industry cites the hypocrisy of some American interest groups critical of the bill for adopting Fair Use by pointing out that the US also has Fair Use and that the concerns of undue pressure on the SA judiciary are unwarranted. The retrospectivity aspect of the bill is cited as an important constitutional issue that needs to be amended.
  • 3 December 2021: The South African Parliament announced a new round of public consultations inviting members of the public to one again submit comments on clauses 13 (Fair Use), 20, 11A & 11B, 27, and 33. The announced deadline was 12:00 on 21 January 2022 and must be submitted to ahermans parliament.gov.za.
 
Wikimedia South Africa's submission to the South African Parliament in January 2022.
  • 27 January 2022:F Wikimedia South Africa makes its submission to the South African Parliament as part the public consultation regarding clauses 13 (Fair Use), 20, 11A & 11B, 27, and 33 of the bill.
  • 17 March 2022:F Douglas Scott (WMZA) was a panelist on The Economic Impact of the Copyright Amendment Bill hosted by the South African United Business Confederation. Douglas talked about Freedom of Panorama, Fair Use, and the role of copyright in growing the technology industry in general and the domestic video games industry in particular.
  • 11 May 2022:F D-Day in ConCourt bid to have Copyright Act declared unconstitutional, Daily Maverick by Linda Daniels: this article details BlindSA's attempts through the courts to get the still active old Copyright Act of 1978 forcibly updated to include the Marrakesh Treaty exceptions for the blind community. These allowances are already contained within the 2019 Copyright Bill still waiting to be signed by the president.

Third hearingEdit

  • 6,[31] 11,[32] 17 & 18 May 2022:Portfolio Committee on Trade and Industry meets to acquaint the new committee members on the Copyright Bill, key concepts within the bill (notably Fair Use), and its status. Presentations are given to the committee by most relevant stake holders, both pro-bill and anti-bill as well as those involved in drafting the bill. The committee makes a number of new recommendations; most of which are to reword certain sections for clarity. For Fair Use it is recommended that Section 12(A)(d) is deleted, many changes made to Section 12(B).
  • 8[33] & 10[34] June 2022: Portfolio Committee on Trade and Industry meets to discuss and decide on a way forward with the CAB and PPB. Committee members from the ACDP, DA and FF+ political parties rejected the CAB and PPB outright whilst the ANC and EFF voted to proceed. It is our opinion that the vote to reject by the ACDP, DA and FF+ was unreasonable as it "threw the baby out with the bathwater" by using objections to relatively minor issues with the bills that can be fixed as a reason to reject the entire bills outright. Committee's Reports on both Bills, including minority views, were approved on 10 June. The DA and FF+ said the reports were an accurate reflection of proceedings to date but they reject the Bills. ANC supported the reports whilst the EFF abstained on both reports. Both bills will now proceed to the National Assembly for discussion and voting.
  • 12 June 2022: A SA’s new copyright law, backed by Google, is slated by the creative industry (12 June 2022), by Sasha Planting, Daily Maverick. This article quotes four critics of the bill in the Independent Producers Organisation, Netflix, Copyright Coalition of South Africa and noted critic of the bill Stephen Hollis from Adams & Adams whilst consulting only one supporter of the bill (Dr Andrew Rens). It thereby presents a one sided view of the bill whilst providing an incomplete understanding of what Fair Use is. It also makes the accusation that Google supports the bill whilst providing no evidence of this.

ReferencesEdit

  1. SA’s new copyright law, backed by Google, is slated by the creative industry, by Sasha Planting, Daily Maverick.
  2. Comments by PEN Afrikaans on the Copyright Amendment Bill, No 13 of 2017 (2017-07-03), Litnet
  3. The Gift of Multiplication: Essays Amendment Bill (2021), Juta, ISBN 978 0 48513 865 5.
  4. Wikimedia South Africa Annual General Report for 2014, pg 23
  5. Great Listening: Discourse on the Copyright Amendment Bill
  6. Copyright Amendment Bill Recorded Stream
  7. Lobby group urges Ramaphosa to reject Copyright Amendment Bill
  8. Why Wikimedia SA supports the Copyright Amendment Bill (24 April 2019), Douglas Scott
  9. President Ramaphosa should sign Copyright Amendment bill (25 April 2019), Douglas Scott
  10. DALRO Copyright Conference demonstrates the value of licensing
  11. Tough negotiations in US over SA copyright bill, GroundUp 31 January 2020
  12. FOIA: Film industry lobbies South Africa’s Parliament to suspend Copyright Amendment Bill
  13. EU Delegation letter to the South African Presidency, 20 March 2020.
  14. Comments from the European Commission to the South African government, 18-06-2020
  15. Blind SA takes Ramaphosa to Court, Sunday Times, 7 June 2020
  16. Supporters of the Copyright Bill should avoid resorting to political expediency to achieve their aims, 9 June 2020
  17. Karjiker stoops low with claims that Blind SA being used in Copyright Amendment Bill fight, Daily Maverick
  18. Blind SA Constitutional Challenge Of The Copyright Amendment Bill, 19 June 2020
  19. Ramaphosa sends Copyright and Performers' Protection Bills back to Parliament, fearing exploitation
  20. COPYRIGHT REFORMS LIKELY UNCONSTITUTIONAL SAYS SA PRESIDENT IN MAJOR DECISION
  21. SOUTH AFRICA’S COPYRIGHT AMENDMENT BILL RETURNED TO PARLIAMENT FOR FURTHER CONSIDERATION (22 June 2020), Infojustice.org
  22. See the light and pass the Copyright Amendment Bill (24 June 2020), Mail & Guardian
  23. Behind Ramaphosa’s rejection of the Copyright Bill (2 July 2020)
  24. Copyright Bill: A victory for creatives, a slapdown for big tech (7 July 2020)
  25. Pissed off Chicco Twala Open Letter to Three South African Ministers (9 July 2020)
  26. Proxy conflict over South African copyright law (24 August 2020), Justus Dreyling,Netzpolitik
  27. Copyright Amendment Bill "beneficial to creators" (Aug 25, 2020 6:25 AM) Cape Talk Radio
  28. Copyright Amendment Bill & Performers’ Protection Amendment Bill: Call for comments opened 04 June 2021 (04 June 2021), Trade and Industry
  29. Threat to journalist investigating Lottery corruption (30 August 2021), Ground Up
  30. Daniels, Linda. Court rules Copyright Act unconstitutional for limiting the visually impaired from accessing books (22 September 2021), The Daily Maverick
  31. Portfolio Committee on Trade and Industry, 6th May 2022, Parliament of South Africa, YouTube
  32. Portfolio Committee on Trade and Industry, 11th May 2022, Parliament of South Africa, YouTube
  33. Portfolio Committee on Trade and Industry, 8th June 2022, Parliament of South Africa, YouTube
  34. Portfolio Committee on Trade and Industry, 10th June 2022, Parliament of South Africa, YouTube

Important linksEdit