Open letter: Copyright Amendment Bill must be passed urgently to challenge discrimination and promote universal quality education

9 July 2021

Dear Chairperson and Honourable Members of the Portfolio Committee on Trade and Industry in the National Assembly,

OPEN LETTER: COPYRIGHT AMENDMENT BILL MUST BE PASSED URGENTLY TO CHALLENGE DISCRIMINATION AND PROMOTE UNIVERSAL QUALITY EDUCATION

With an outdated, apartheid-era Copyright Act 1978 and regulations that violate several constitutional rights, the struggle for copyright reform is longstanding in democratic South Africa. In 2009, proposed amendments to the old-order copyright regime were introduced to Parliament. Since that time there have been countless rounds of public hearings and submissions, wide-ranging consultations, and debates.

When the Copyright Amendment Bill [B13-2017] (CAB) was finally sent to President Cyril Ramaphosa in June 2019, civil society, libraries, disability rights and education rights activists were hopeful. We hoped that the discriminatory nature of South Africa’s current copyright regime would finally be remedied, bringing the Act in line with our Constitution and various international treaties including those that South Africa has ratified and is bound by.

But after a year of more delays, and pressure from the industry lobby, in June 2020 the President referred the CAB back to Parliament citing constitutional concerns. The CAB has since remained in limbo, entailing the continued deprivation of rights of several marginalised groups in the country perpetuated by the apartheid-era copyright regime (the Copyright Act 1978 and its regulations). In late June 2021, approximately a year after it was referred, the CAB was retagged by the Joint Tagging Mechanism, further delaying its passage.

It is against this backdrop that we make our submissions on the CAB. We illustrate how specific exceptions to copyright created by the CAB realise the constitutional rights to education, equality and non-discrimination, dignity, freedom to receive and impart information and conduct scientific research, and participation in cultural life for all. Importantly, we highlight how the CAB is constitutionally required to reverse decades of discrimination against specific marginalised groups such as persons with visual and print disabilities. This discrimination has been globally recognised and it is incumbent upon South Africa to remedy it, urgently. Blind people in South Africa have access to less than 0.5% of published works in accessible formats. We have recently instituted legal action on behalf of BlindSA to challenge this ‘book famine’. We implore the Portfolio Committee on Trade, and Industry to expedite the process of finalising the CAB, so that the violations of constitutional rights imposed by this old-order piece of legislation are not prolonged even further.

Honourable Members, in short, we submit that the current Copyright Act and its regulations are indeed unconstitutional. The regime discriminates against people living with disabilities and people living in poverty, excluding them from fully participating in cultural life and realising their rights to education among others. Since copyright is a limited statutory monopoly, explicit exceptions are required to use materials under copyright without the consent of the right holder. In this regard, the current Act does not provide for exceptions which would enable people who are blind or visually impaired to convert published works into accessible formats and thereby access these materials at the same level as those living without disabilities. Over 96 open and democratic societies have included these provisions in their copyright laws.

Similarly, it does not contain exceptions for the use and reproduction of works for educational purposes in a country where the achievement of universal quality basic education is still a pipe dream. All 189 World Intellectual Property Organisation (WIPO) countries have these provisions for educational use with an average of 13 distinct provisions for educational purposes per country in their copyright laws. The current Copyright Act and its regulations have contributed to a book famine for people who are blind or visually disabled, and vastly limited access to textbooks and educational materials for people who cannot afford them at market price – the vast majority of people in our country. We have previously written to the committee in support of CAB, and raised a number of our concerns with the current Copyright Act.

In the attached submission, which is endorsed by interested members of civil society and public interest organisations, SECTION27 specifically addresses Clause 13 of the CAB. In his letter to the Speaker, dated 16 June 2020, the President expresses concern that Clause 13 (ss 12A-D) of the CAB could potentially allow for the arbitrary deprivation of property. Our submission argues that this is not the case. Instead, we reiterate that the CAB is a crucial legislative measure that is constitutionally necessary to protect the rights of disadvantaged groups that have historically been discriminated against. We also request for permission to present at the public hearings to take place in early August.

Our submission demonstrates that Clause 13 does not constitute an arbitrary deprivation of property. The CAB is procedurally sound, and easily passes the Constitutional Court’s sufficient reason test, even if copyright were argued to fall under section 25 of the Constitution as advanced by the industry lobby. The negative framing of the right shifts the burden on to copyright holders who would have to prove that this Bill ‘arbitrarily’ deprives them of their property. But the text of Clause 13 is qualified and tailored to South Africa’s particular circumstances. We outline the limitations in more detail in our submission, but it is worth noting that qualifications in the CAB include the prohibition of commercial/for-profit use, reproduction, translation or format-shifting of any copyrighted work, thus allaying fears of economic interests of copyright holders being affected. Because the exceptions in the CAB pertain solely to educational use, thereby giving meaning to the immediately realisable right to basic education in section 29 of the Constitution, we believe that the deprivation of copyright holders – if it can even be considered as such – is not arbitrary, but a constitutional imperative.

Not only is Clause 13 of the CAB a constitutional imperative, but we submit that it is crucial that the Bill be passed urgently. The recent fire at the UCT African Studies Library, among other things, demonstrated the devastating impact of an outdated and obsolete copyright landscape; had the CAB been passed sooner, and libraries been permitted to digitise more of their collections, we might not have suffered such a comprehensive loss of valuable cultural heritage. The CAB directly addresses this in Clause 13 and 20, which we support in our submissions.

Furthermore, the Covid-19 pandemic has illustrated – and deepened – an already unequal basic education system. Where learners from privileged socio-economic backgrounds were able to continue learning remotely through online or print textbooks that they had procured privately when schools closed in March 2020, millions of learners in the public sector did not have access to textbooks or educational materials to support their learning at home. Passing the CAB, rather than depriving the industry lobby of their economic benefit, would actually enable learners and educators to meaningfully access the learning materials that they require to realise their right to education.

In the status quo, resource-scarce universities are prevented from producing course-packs for students who are eager to read and learn. Learners in the public education sector often go without textbooks for every subject – despite our case at the Supreme Court of Appeal which ordered government to provide textbooks for every learner at the start of each academic year – because of the unregulated market price for textbooks. Learners with visual disabilities have even less access to learning materials that their peers without disabilities can utilise.

The CAB – clause 13 especially – regulates the publishing market in a way that balances the rights of copyright holders and authors with the constitutional rights of vulnerable groups in a deeply unequal society. It  is necessary to comply with South Africa’s commitments under international treaties  such as the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in substance is compatible with treaties it will ratify in future, such as the Marrakesh Treaty to Facilitate Access to Published Works for Person Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

It is crucial that parliamentary processes and discussions on the CAB not be delayed any longer. Honourable Members, you have a constitutional duty to protect the constitutional rights of all people in South Africa and it is time now to do your part. Consider the people with disabilities, learners and students whose rights are infringed upon by the 1978 Copyright Act. To remedy these violations, pass the Bill, without delay.

SECTION27

The attached submission to Parliament are made by SECTION27 and are endorsed by the following organisations and individuals:

The Right to Know Campaign;

BlindSA

Treatment Action Campaign

Oxford Human Rights Hub

South African Guild of Actors

Individual Endorsements:

1. Sanya Samtani, DPhil Researcher in copyright and human rights, University of Oxford
2. Marcus Low, Editor of Spotlight (endorsing in personal capacity)
3. Jako Olivier: Professor & UNESCO Chair on Multimodal Learning and Open Educational Resources, North-West University
4. Tess Peacock, Equal Education Treasurer
5. Sandra Fredman: FBA, QC (Hon.), Professor of Law, University of Oxford, Director of the Oxford Human Rights Hub
6. Nurina Ally, Lecturer, Faculty of Law, University of Cape Town
7. Unathi Noxolo Ndiki, Recreate ZA/R2K WC communication rights activists
8. Meghan Campbell, Reader, University of Birmingham, Deputy-Director of the Oxford Human Rights Hub
9. Makhosazana Mkhatshwa, Research Officer, Treatment Action Campaign
10. Dr Klaus D. Beiter: Associate Professor, Faculty of Law, North-West University, Potchefstroom; Affiliated Research Fellow, Max Planck Institute for Innovation and Competition, Munich
11. Denise R. Nicholson, Specialist Copyright Librarian
12. Christoffel Johannes de Klerk, Vice President of BlindSA
13. Jonathan Klaaren: Professor of Law, University of Witwatersrand