South Africa Can Lead the Way: IFLA Delivers Submission on Copyright Reform
South Africa is reforming its copyright framework, and the Copyright Amendment Bill takes an ambitious approach that could set a great example not only for neighbouring countries but also internationally. It contains some very positive provisions for libraries and cultural heritage institutions, such as the recognition of library e-lending, the supply of digital documents, the possibility to make collections available through secure computer networks, the limitation of liability and on the making available of out of commerce works.
Following the invitation by the Portfolio Committee on Trade and Industry, the committee leading work on the reform, IFLA submitted written comments to the South African Copyright Amendment Bill on 7 July 2017. In the submission, IFLA welcomed the reform and pointed out a few aspects that would need to be changed in order to ensure that the reform meets its potential and effectively supports access to culture and information in South Africa.
In the submission, IFLA welcomes, among other provisions, two very relevant new ones: the possibility for users to circumvent digital rights management tools to perform acts that are allowed under an exception, and the recognition of the unenforceability of contractual terms that override exceptions to copyright. Those two references are fundamental to guarantee the effective enjoyment of exceptions and limitations to copyright by its beneficiaries.
Some provisions need slight amendments to realise fully their potential. The submission refers to the orphan works exception, that would oblige the consultation of a mandatory list of sources of information on potential rightholders. Since this requirement can be extremely difficult to meet for many cultural heritage institutions, we recommend either making this list non-mandatory or alternatively to provide that the digitization and communication to the public of orphan works should be covered by a flexible fair-use exception.
The submission also welcomes the provisions that moves towards implementation of the Marrakesh Treaty in South Africa, with a quick remark to modify the language so that the exception also applies to those cases where authors have transferred their rights to third parties, such as publishers.
Although some of the provisions are not directly related to the daily work of libraries and other cultural heritage institutions, IFLA also provided comments on those provisions that are likely to have an impact on freedom of expression and access to knowledge.
In this regard, IFLA refers to the “fair dealing” and “fair use” exception, where we suggest an open, rather than an exhaustive list of permitted uses under the exception. Remarks are also made to the quotations exception, that establishes that quotations need to be in the form of a summary of the work. IFLA suggests amending the exception so that no restriction is made to the form of a quotation.
IFLA encourages decision makers in South Africa to continue working on the reform and to endorse the proposed amendments. These would not harm any legitimate interests, but rather make progress towards universal access to culture and information, and promote literacy in the digital environment.
IFLA follows copyright reforms worldwide as part of its activity at the World Intellectual Property Organisation (WIPO), where IFLA advocates for a minimum threshold of exceptions and limitations for libraries and cultural heritage institutions internationally at the Standing Committee of Copyright and Related Rights (SCCR).
Read the submission: [PDF – English]
Last update: 12 January 2019