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IP reform a minefield for South African researchers

Image: Horia Varlan [CC BY 2.0], via Wikimedia Commons

Contrasting views aired at information session arranged by academy

Experts are split on South Africa’s controversial amendment to its intellectual property laws, with some saying the outdated legislation hampers research and others that the amendment must be scrapped and redrawn.

The bill, which has been in the works for several years, is open for public comment until 9 July. It introduces a ‘fair use’ clause under which education institutions at all levels, including higher education and research, can access copyrighted material without paying for it. Such use is not allowed under current South African law.

The amendment also adds stipulations for technologies that did not exist when the original laws were drafted, such as data and text mining, and software. Further, it adds exemptions for video, film and audio copyrights for education purposes and people with disabilities.

Those in favour of the Copyright Amendment Bill (CAB) say it will protect researchers’ constitutional rights as spelt out in section 16 of the constitution, which guarantees citizens “academic freedom and freedom of scientific research”. They argue that previously researchers weren’t able to access certain information, which was an infringement of their rights.

Academics who disapprove of the amendment argue that it will harm the publishing industry as a result of financial losses caused by lost subscriptions and access fees, and that it is too vague to be effective.

Views aired at workshop

Views from both sides were represented at a workshop organised by the Academy of Science of South Africa on 29 June to address research concerns about the CAB. Proponents said the amendment brings intellectual property legislation up to date and in-line with international standards, while removing impediments for research.

Sanya Samtani, a researcher at the Faculty of Law at the University of Oxford, hailed the amendment as a boon to researchers. She said the old legislation, enacted during apartheid in 1978, “significantly limits access to research information” and discriminates against researchers with disabilities.

Samtani said the current act is obsolete because it does not contemplate the use of new technologies such as data mining and algorithms for research. She added it also “arbitrarily limits research” by excluding recordings, software, and films for research exceptions.

She said that researchers with disabilities will benefit because currently copyright is format-locked. For instance, a book, for which a research exception exists, needs to be bought again to get access to the audio version. The CAB allows for “format shifting”, said Samtani. “The ‘fair use’ clause makes the CAB future proof,” she said.

Samtani said the “fair use” clause in the CAB is highly specific in its exclusions for research and education purposes and will not lead to copyright abuse: “It is not an indiscriminate, anything goes model.”

She said existing legislation made no exceptions for mass digitisation of collections, archives and galleries, and that such exceptions could have prevented the loss of material in the recent University of Cape Town fires.

Klaus Beiter, an associate professor of law at North-West University, also backed the CAB. He said the current act causes uncertainty. The amendment will rectify this, Beiter said, and seeks to protect the rights of South African researchers and students. Major international publishers have huge profit margins to the detriment of students and researchers in poorer countries, he said: “The poor Black students in my class finance shareholders in rich countries when they buy university textbooks.”

Beiter argued that developing countries should have more IP waivers for education and research than richer, developed countries: “We must find an IP level that suits our level of economic development.”

Beiter supported the fair use clause in the CAB, describing it as flexible, transformational and helpful for innovation. He said that the CAB will promote research in under-represented languages

‘Poor bill, badly drafted’

Others at the webinar criticised the bill. Owen Dean, an emeritus professor and former chair of intellectual property law at Stellenbosch University, said the amendment “must be redone from scratch”. He argued that a panel of IP law experts should come up with a new amendment to replace the 1978 bill.

“It is a poor bill, badly drafted, and littered with inconsistencies. You can’t panel beat it to make it look nice,” he said.

Dean argued for a better balance between the rights of the IP owner and the public good. He was especially critical of the fair use clause, saying that it is too broad and will negatively impact the rights of copyright owners. He admitted that the bill contains good elements and that the old laws must be overhauled: the problem is how it is expressed.

Dean said the law’s drafters did not have insight into practical copyright law. The ‘fair use’ clause, inspired by United States law, is ill fit for purpose in South Africa, he said: “Plucking something like fair use out of American law and planting it into South Africa is like invasive vegetation. Bring fair use into South Africa and it will run wild.”

Keyan Tomaselli, a distinguished professor of humanities at the University of Johannesburg, said the bill will boost an unfavourable form of open access through the fair use clause, which will cause publishers to “shift from reader pays to author pays, which can be prohibitively expensive”, causing an overall decrease in publications, he said.

His main gripe was that the bill will cost the academic publishing industry in South Africa billions of Rands, which will have a knock-on effect on research. “Publishers will no longer absorb the risks and costs of publishing, there will be less funding for actual research expenses,” he said. Tomaseli has previously defended traditional publishing, saying it has benefits open access doesn’t.

Tomaselli believes that the terms in the amendment are too broad, especially on fair use. It is “overbalanced to users and prejudicial to creators”, he said. “It is a badly drafted piece of work. If you have a bad law it can’t be implemented.”

Not first time bill is questioned

It’s not the first time the bill has been questioned. South African president Cyril Ramaphosa sent the bill back to Parliament a year ago to address concerns he raised at the time. These include that it could be constitutionally challenged, may “arbitrarily deprive” copyright holders of their rights, and that it clashes with international laws.

Before Ramaphosa sent the bill back to parliament, United States creative industries called for South Africa’s trade privileges to be sanctioned if the bill was adopted.