South Africa: Free to Reproduce, Free to Exploit - South Africa's Copyright Amendment Bill


Being an academic is like driving a car. We can all do it but few of us actually know how a car is manufactured. When something goes wrong, we phone the Automobile Association.

Similarly, as academics we know how to write, but few have any idea how the publication value chain operates. When something goes wrong we call the editor. The Academic and Non-fiction Authors' Association is like the AA for authors - and there's about to be a collision with the South African Copyright Amendment Bill.

The general consensus of a recently organised symposium attended by copyright lawyers, law professors, university presses, journal editors, copyright officers and other interested parties is that the proposed bill will hammer one more nail into the coffin of South Africa's ailing university system.

The Copyright Amendment Bill applies a very wide ranging definition of "fair use" on all materials to be used for "education". Free access to information is the cry - but as always, someone is paying. By eliminating the rights of educational authors and publishers and making all published work "free" to be reproduced, the bill could alienate authors from the fruits of their labour and their right to be cited.

Section 12D of the bill allows for unrestricted copying of content "for educational and academic purposes" provided that the copying doesn't exceed the length justified by the purpose (open to interpretation by a court). The section lists the reproduced content as: "printed and electronic course packs, study packs, resource lists and in any other material to be used in a course of instruction or in virtual learning environments... ".

The section further states that the "name of the author shall be indicated as far as is practicable". This means it can be left out where not practicable, which opens the door to plagiarism and could lead to authors not being cited.

There will be many negative effects if the bill's amendments are accepted. Some of these are outlined in a study conducted by Price Waterhouse Coopers which assessed the bill's possible impacts on South Africa's publishing industry.

The ripple effect

The study found that that if the bill is accepted as is proposed, the publishing industry will experience a 33% decline in sales. This could result in a R2.1 billion loss in revenue and 1250 jobs will be lost in a country where the official unemployment rate is 27%.

What might happen under a reproduction without permission or royalty system? Publishers of both journals and books will institute hefty article processing charges and open access fees will be paid upfront. This means that the cost of publication will no longer be absorbed by publishers. In this model, the author pays. And it's an expensive business.

The subscription driven "reader pays" model will decline, which means that economies of scale stretched across tens of thousands of subscribing libraries and millions of readers will be replaced with authors paying for readers to read. Less work will be published less often as authors will need to access large sums of money from a limited number of donors to pay for publication. The rank and file who don't have access to donor funding will have to pay from their own pockets and research grants.

In Canada, where a similar provision was enacted in 2012, the negative effects on the industry are clear. There, widespread copying depressed book sales. Here, the volume of publication output may decrease, and South African journals might become more selective in what they publish. Getting reproduced books for free will also not result in lower costs to students if the Canadian experience is anything to go by.

The consequences

Big tech companies will be legally able to appropriate authors' intellectual work, monetise it and sell their labour to advertisers. Academics will not own their intellectual labour. Researchers and textbook writers will be enriching these companies because they won't have to buy permission for reproducing educational texts from publishers.

South Africa's educational publishing industry will decline. This will put the breaks on the decolonisising of curricula in academia because homegrown publishers publishing homegrown content will have difficulty entering into the market. The country will again become reliant on expensive international imports written for international readers.

The counter position argues exactly the opposite - that all will be well because information freedom will be attained. This argument confuses access with content. Content needs to be created, published and circulated. Content is created out of a particular research and publication production value chain. Access is the consumption side: it involves readers. Libraries, for example, don't produce content. They house it. Libraries, like bookshops, enable readers to access the content.

The proposed bill will not only be harmful to authors but to the sustenance of scholarly innovation and cultural development.

Keyan Tomaselli, Distinguished Professor, University of Johannesburg

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