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A European ruling, only days away from final adoption by the EU parliament, holds tech giants responsible for compensating content creators and for removing copyright-violating posts, a powerful blow for the rights of creators against unfair exploitation of their work by multinational corporations.
While the above is about to happen, a spotlight turns on South Africa, where pending legislation is poised to give the tech giants unprecedented rights to exploit copyrighted works without payment.
The Copyright Amendment bill is currently before the National Council of Provinces, having been passed in the National Assembly.
The bill, whose proponents claim to have the interest of the local creative and cultural sectors at heart, has them in uproar.
It is a complex piece of legislation, riven with uncertain terminology, that is being rushed through Parliament thanks to the advocacy of tech giants like Google and generous Google funding receiving Wikipedia, who stand to benefit from it.
South Africa is clearly the latest terrain of a world-wide tug-of-war between creators of authored works, publishers, cultural industries, tech firms and their activists over the protection of copyright.
In facing this reality, South Africans need to be patriotic and conscious of the reach and scale of the undue influence of the advocacy tentacles of global tech giants.
South Africans need to recognise that, in spite of a climate of intense lobbying by Google and its associates, the European Parliament, the European Council and the European Commission reached an agreement after years of negotiations enacting new rules supporting creators of knowledge and ideas, in ensuring they are fairly compensated for the use – and re-use – of their content on digital platforms.
These rules also strive to close the “value gap”, so that record artists and their labels may be remunerated more accurately, transparently and fairly when their material is shared on platforms like Google’s YouTube.
Thus, overseas, US tech giants such as Google in future will negotiate licensing agreements with rights holders and their agencies, such as collective management organisations, record labels, music publishers, film producers, writers’ unions and actors’ guilds and media firms.
Why should it be different if those platforms benefit massively when they publish or aggregate this third-party content, on platforms such as YouTube and Google Books, Google News, Google Music, Google everything!
The modern cultural challenge is to arbitrate between the content-creation sector versus Silicon Valley, and it is the legislators of the world who must decide on whose side they stand.
Will the final shape of our copyright law benefit the creators of content, or only those who would reuse that content without fair compensation?
The tech lobby contends that protecting copyright on artistic, news and academic work will limit online innovation and freedoms in Europe. The content creators point out that when works of art or research are no longer fairly remunerated, industries will collapse. What a lot of hogwash!
The tech companies have no compunction about influencing this debate. During the European process, the European parliament had to speak out against deceptive, high-spending lobbying by Google, Facebook and Amazon.
“We face a campaign with many misconceptions and fake arguments,” said Axel Voss, one of the key drafters of the new rules, describing misleading wiki updates, hysterical misrepresentations and massive email spam campaigns.
In South Africa we face the same risk but under conditions that make artists even more vulnerable.
Our process has seen undue influence and the intimate involvement of tech companies with the trade and industry department, which has been driving the new bill – even to the point of co-hosting events with these tech giants.
New organisations and lobbyists have emerged with similarly close links to the tech companies, articulating views aligned with theirs.
In this case you might have heard of ReCreate, an “AstroTurf” organisation of such organisations, an artificial appearance of a ground swell in the absence of true grassroot movements.
Foreign academics have waded into the debate, essentialising op-eds have been written, and at the same time, Parliament has shown little inclination to consider views critical of the bill.
Which leaves one to wonder whose interests is Parliament advancing and protecting?
There has been inadequate meaningful public consultation, railroading of the bill in Parliament, and imprecise terminology that will require years of legal proceedings to clarify.
One has to ask, who would benefit from the bill if it were passed?
The answer is the tech platforms that would host content without paying fair remuneration all in the name of untruth that we’ve been told of enabling innovation.
The bill contains broad exceptions for free republishing of content as long as it is for “education” purposes, forgetting that in South Africa 80% of publishing is in fact educational (and rightly so). This will rob writers and publishers of their livelihoods, and force the closure of academic publishers to the detriment of writing talent and ultimately learners.
An economic impact assessment by PwC and the Publishers Association of South Africa found the bill would destroy a third of publishing jobs in a struggling economy.
It will prejudice music businesses through the disregard of the freedom to contract and Byzantine new layers of royalty laws.
No doubt, it will drive out film investment through the uncertainty it creates around rights and usage.
It is imperative that we remain aware of the undue influence of advocacy processes around this bill, and temper our acceptance of apparently supportive views with critical awareness of the lobbying campaign.
Parliament ought to exercise due diligence in considering the bill and remain impartial in considering submissions from all stakeholders. Sadly, this has not been the case with the current Copyright Amendment bill.
The Copyright Amendment bill in its current form will prejudice content creators, from writers to publishers, music professionals to filmmakers and ultimately the users that depend on their output.
Awareness must be raised about this flawed bill being rushed through Parliament, and the vested interests trying to make that happen.
The bill must be revised and redrafted with inputs from all stakeholders taken into consideration, not to allow a digital colonisation of our copyright.
• Collen Dlamini is executive manager: business development at Kagiso Media
