IPA, IFRRO, STM, IAF Oppose South Africa’s Copyright Bill

In Feature Articles by Porter Anderson

A joint statement from major world publishing bodies appeals to South Africa’s National Assembly to vote down its copyright bill.

Cape Town’s parliament buildings, the seat of the South African National Assembly. Image – Getty iStockphoto: Groblerdu Preez

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

Standing ‘United Against an Ill-Constructed Bill’

Update: February 29: The South African National Assembly has been confirmed to have passed the controversial Copyright Amendment Bill, Lameez Omarjee at News 24 Business and others are reporting.  It moves now to the South African president Cyril Ramaphosa. Gadi Oron at CISAC, quoted in our article, says in reference to the passage of the bill, “This is a lose-lose situation for both creators and users that will lead to uncertainty in the marketplace, for which the only fix would be expensive and wasteful litigation.”

Four leading world publishing organizations today (February 28) have issued a respectful but adamant appeal to members of the South African National Assembly, requesting that they not adopt the “Copyright Amendment Bill” expected to be put to a vote on Thursday (February 29).

The International Publishers Association (IPA), the International Association of Scientific, Technical, and Medical Publishers, the International Authors Forum, and the International Federation of Reproduction Rights Organizations (IFRRO) together write, “We are deeply disappointed by the possibility of seeing irreversible damage happen, but we keep our trust in South African policy makers’ ability to protect the South African book and publishing sector with laws that respect the South African constitution and the international treaties that you have committed to respect.”

As Publishing Perspectives readers will recall, South Africa’s copyright legislation was at one point in 2020 apparently sent back to parliament members by the country’s president Cyril Ramaphosa to the legislature, after the proposed law had languished in his office without action. Even the long wait for action has been puzzling to many observers, as a matter of fact,  Copyright Clearance Center‘s Michael Healy remarking to Publishing Perspectives in 2020 that such a long-delayed response in the presidential offices seemed peculiar.

Subsequently, the bill’s review process saw it moving again in September (2023) through provincial legislative stages and reportedly being cleared earlier this month for Thursday’s coming action by the country’s portfolio committee on trade and industry.

As we wrote at the time, many in the cultural sector, had been concerned that if the South African bill were to go through, it would influence other governments on the African continent and beyond it to follow suit and dilute copyright protections through the kind of “exceptions” that have seen Canadian publishers losing what they say is some CA$200 million (US148,273 million) in copyright revenue because of that market’s 2012 “Copyright Modernization Act,” an embarrassing and much-derided example of deeply degraded copyright protection.

“This bill,” as we read in the joint statement’s commentary, “has been opposed consistently by national and international voices from the book sector. It was rejected by the president of South Africa based on precise defects and on substantiated doubts about its constitutionality. A long process followed, but the defective provisions have remained unaddressed despite semantic changes. Writers and the whole publishing and book industry stand united against an ill-constructed bill that can jeopardize South African literary diversity and educational content production.”

At the International Confederation of Societies of authors and Composers (CISAC), based in Neuilly-sur-Seine, director general Gadi Oran has listed several points that his organization joins others in seeing in the bill, his commentary having been released in France on Saturday (February 24).

” First,” Oran writes, “it includes a long and open-ended list of exceptions to copyright. This excessive focus on exceptions, instead of the rights of creators, is not what the function of a new copyright law should be. It devalues works, opening up many new uses for which creators will no longer have the right to earn royalties.

“Second, there is a concept of ‘fair use’ which apparently copies US legislation, but in fact goes far beyond that.”

The four major organizations making their statement today ahead of tomorrow’s potential action in Cape Town write in agreement with the French assessment of the South African bill’s dangers, saying:

“The most problematic aspect of the bill remains the excessive and defective system of exceptions and limitations, which will prevent the establishment of a fair marketplace for books and is especially penalizing for literary, educational and academic copyrighted works. This is the result of an unprecedented, overbroad fair use provision in S.12A, which remains unwarranted and is void of the guardrails imposed by international law.

“This is exacerbated by numerous other exceptions and limitations in S. 12B, C, and D, and in S. 19C, that remain unjustified by undermining the exclusive rights of reproduction, translation and adaptation, which are the legal bedrock of the book sector.

“The legal uncertainty resulting from these overbroad exceptions and limitations to copyright protection makes unauthorized access to copyrighted works the rule rather than the exception, therefore compromising the sustainability of a rich and diverse South African literary and book sector.”

At the University World News, which is based in London with offices in Durban, Melbourne, Montreal, and Copenhagen, Hetta Pieterse and Keyan G Tomaselli on Feburary 8 wrote an analysis from the academic viewpoint of the South African bill’s language, warning, “The bill will enable a ‘contract override’ whereby the minister of trade and industry will be empowered to prescribe the terms of publishing contracts. … It will remove bargaining power from authors and interfere with the healthy competitive environment for the best authors.”

A countervailing opinion by a Scholarly Horizons copyright consultant, Denise R. Nicholson, was published on February 20 in the Johannesburg-based Mail & Guardian, supporting the passage of the bill, praising what Nicholson describes as the legislation’s “hybridity” of fair use and “specific limitations and exceptions.”

And amid such contradictory opinions in the field of legal protections for the creators of creative content, it’s hard to tell how well versed South Africa’s parliamentarians—or those in many other nations—can be when faced with the range of opinions this proposed bill is drawing.

The joint statement issued by the four international publishing-related organizations, makes the ask, however, entirely clear: “We are asking the National Assembly not to adopt the Copyright Amendment Bill on Thursday.”

A Programming Note

From left are Glenn Rollans, Maria A. Pallante, Dan Conway, and Nicola Solomon

At  2:15 p.m. GMT, on March 12, four key players will join us when Publishing Perspectives moderates a Main Stage discussion, Copyright and AI: A Global Discussion of Machines, Humans, and the Law, an advanced-level conversation exploring the risks and opportunities within the rapidly evolving era of artificial intelligence.

The session will feature:

More from Publishing Perspectives on copyright is here. More from us on South Africa’s market is here, more on Canada’s Copyright Modernization Act is here, more on the International Publishers Association is here, more on the work of IFRRO is here, and more on international copyright protection challenges is here

Publishing Perspectives is the International Publishers Association’s world media partner.

About the Author

Porter Anderson

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Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair's International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson was for more than a decade a senior producer and anchor with CNN.com, CNN International, and CNN USA. As an arts critic (Fellow, National Critics Institute), he was with The Village Voice, the Dallas Times Herald, and the Tampa Tribune, now the Tampa Bay Times. He co-founded The Hot Sheet, a newsletter for authors, which now is owned and operated by Jane Friedman.