South Africa's Proposed Fair Use Right In Copyright Bill Is Surprisingly Good -- At The Moment

from the stand-back-for-the-lobbyist-attacks dept

Too often Techdirt writes about changes in copyright law that are only for the benefit of the big publishing and recording companies, and offer little to individual creators or the public. So it makes a pleasant change to be able to report that South Africa's efforts to update its creaking copyright laws seem, for the moment, to be bucking that trend. Specifically, those drafting the text seem to have listened to the calls for intelligent fair use rights fit for the digital world. As a post on infojustice.org explains, a key aspect of copyright reform is enshrining exceptions that give permission to Internet users to do all the usual online stuff -- things like sharing photos on social media, or making and distributing memes. The South African text does a good job in this respect:

A key benefit of the Bill is that its new exceptions are generally framed to be open to all works, uses, and users. Research shows that providing exceptions that are open to purposes, uses, works and users is correlated with both information technology industry growth and to increased production of works of knowledge creation.

The solution adopted for the draft of the new copyright law is a hybrid approach that contains both a set of specific modern exceptions for various purposes, along with an open general exception that can be used to assess any use not specifically authorized:

The key change is the addition of "such as" before the list of purposes covered by the right, making the provision applicable to a use for any purpose, as long as that use is fair to the author.

In order to test whether a use is fair, the standard four factors are to be considered:

(i) the nature of the work in question;

(ii) the amount and substantiality of the part of the work affected by the act in relation to the whole of the work;

(iii) the purpose and character of the use, including whether --

(aa) such use serves a purpose different from that of the work affected; and
(bb) it is of a commercial nature or for non-profit research, library or educational purposes; and

(iv) the substitution effect of the act upon the potential market for the work in question.

Crucially, the legislators rejected calls by some to include a fifth factor that would look at whether licenses for the intended use were available. As the infojustice.org post points out, had that factor been included, it would have made it considerably harder to claim fair use. That's one reason why the copyright world has been pushing so hard for licensing as the solution to everything -- whether it's orphan works, text and data mining, or the EU's revised copyright directive. That rejection sends an important signal to other politicians looking to update their copyright laws, and makes the South African text particularly welcome, as the infojustice.org post underlines:

We commend its Parliament on both the openness of this process and on the excellent drafting of the proposed fair use clause. We are confident it will become a model for other countries around the world that seek to modernize their copyright laws for the digital age.

However, for that very reason, the fair use proposal is like to come under heavy attack from the copyright companies and their lobbyists. It remains to be seen whether the good things in the present Bill will still be there in the final law.

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  • identicon
    Someone you don't know, 25 Jul 2018 @ 3:34am

    Isn't it fascinating that one of the countries to see through the licensing bullcrap is South Africa? I wish a lot more of the first world countries wisened up and stopped being bought by greedy megacorps who don't believe fair use exists. But until then, kudos to South Africa here. And don't succumb to the lobbying of those rightsholders. Let them hit their heads against brick walls all day, for they do not deserve more power than they already have, but less.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jul 2018 @ 8:12am

      Re:

      Isn't it fascinating that one of the countries to see through the licensing bullcrap is South Africa?

      They basically copied it from the USA. I expect America's reaction to this law to be the real source of fascination.

      reply to this | link to this | view in chronology ]

  • icon
    XcOM987 (profile), 25 Jul 2018 @ 3:36am

    Never thought I'd see this in my lifetime

    I've taken to having to fight against the current copyright standings, In respect to the bit AA's and content producers, they seem to be constantly wanting more, never happy and pushing for even more rights in Law which revolve around revenue rather than pushing for the advancements of science.

    But I am soo happy to have seen this, I really hope this will be a wakeup call, this can be a good testbed to see how things progress when copyright's are fair and balanced.

    Personally I feel copyrights should be for 10 years, and can be renewed twice for a maxamium of 30 years, should you pass on unexpectidly before the last renewal your heir should be able to renew your copyright 1 time, and these renewals are from the first owner, so if rights are sold the counter isn't reset, if you can't profit from something in 30 years then your doing something wrong.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 25 Jul 2018 @ 3:47am

    Ah the classic 'the only fair use is paid use.'

    Crucially, the legislators rejected calls by some to include a fifth factor that would look at whether licenses for the intended use were available. As the infojustice.org post points out, had that factor been included, it would have made it considerably harder to claim fair use.

    It wouldn't have just made it harder, it would have undercut two of the core principles of fair use. The point of fair use is that you don't need permission and don't need to pay, having a consideration of whether or not payment was an option in determining whether or not something was fair use is in direct conflict with that.

    Hopefully this can make it through mostly if not entirely intact, it would be nice for the public to be considered when writing copyright law for once.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 25 Jul 2018 @ 4:35am

      Re: Ah the classic 'the only fair use is paid use.'

      Hmmm... I suppose it depends on whether a "licence" was created especially for fair use. i.e. a licence that states "if these conditions are met (insert acceptable fair use conditions), this licence applies if content is not covered by other licences"

      It would instantly make things a lot more messy, but if applied properly I believe could be made to work. In fact, it could even be clearer than the US model (meaning you can say licence X applies, rather than fair use merely being a defence is you're accused of violating other licences).

      Of course, such a thing may or may not happen, and everybody's screwed if the law stayed intact but someone decided to revoke the fair use licence, but on the face of it there wouldn't be instant destruction.

      "it would be nice for the public to be considered when writing copyright law for once."

      Especially since that group includes the actual content creators these things are supposedly trying to protect. That's always the disconnect here - corporations aren't the things these are meant to protect, it's members of the general public. That they may or may not be in the employment of a major corporation when they create their work should not be a factor.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 25 Jul 2018 @ 4:46pm

        Re: Re: Ah the classic 'the only fair use is paid use.'

        Hmmm... I suppose it depends on whether a "licence" was created especially for fair use. i.e. a licence that states "if these conditions are met (insert acceptable fair use conditions), this licence applies if content is not covered by other licences"

        You don't need a license for that, just make clear in the law that using a work in a specific manner(in addition to more general categories) is considered fair use.

        The problem with mixing licensing and fair use is possible revocation as you mentioned, and more importantly the precedent it would set(one you can be damn sure the usual groups would jump all over).

        It would instantly make things a lot more messy, but if applied properly I believe could be made to work. In fact, it could even be clearer than the US model (meaning you can say licence X applies, rather than fair use merely being a defence is you're accused of violating other licences).

        In both cases you're still stuck defending yourself in court if the other side decides to press the issue, whether arguing fair use of that a given license would apply, so it would seem to be solving the wrong problem. Better I'd think to go after the costs of defending yourself against claims like that, perhaps with the ability to recoup some or all of your legal fees if the use is found to be within the law.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 26 Jul 2018 @ 12:59am

          Re: Re: Re: Ah the classic 'the only fair use is paid use.'

          "You don't need a license for that, just make clear in the law that using a work in a specific manner(in addition to more general categories) is considered fair use."

          That's still very problematic, as either the limits would have to be clearly set (and thus cause many problems with edge cases or things that haven't been considered yet) or so wooly that they'd still need a court battle to settle. I'd also say a licence would be much easier to modify than the law in most cases, although as we've said that also makes it easier to revoke.

          "In both cases you're still stuck defending yourself in court if the other side decides to press the issue, whether arguing fair use of that a given license would apply, so it would seem to be solving the wrong problem"

          "In both cases you're still stuck defending yourself in court if the other side decides to press the issue, whether arguing fair use of that a given license would apply"

          I can't think of any solution that wouldn't cause a court issue if one side decides to press hard enough. I'm just saying that, in response to your original comment, that including the need for a licence would not necessarily have to be a death sentence for fair use.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 26 Jul 2018 @ 6:21pm

            Re: Re: Re: Re: Ah the classic 'the only fair use is paid use.'

            That's still very problematic, as either the limits would have to be clearly set (and thus cause many problems with edge cases or things that haven't been considered yet) or so wooly that they'd still need a court battle to settle.

            I was thinking more of a 'this category of things are considered fair use, and as an example this in particular would fall within that category, so would be considered fair use', where you'd still have general categories(education, parody and so on) covered, with specific uses made clear as examples of 'and this is what that sort of thing looks like in practice'.

            I'd also say a licence would be much easier to modify than the law in most cases, although as we've said that also makes it easier to revoke.

            And if individuals wanted to offer 'fair use licenses', such that they made clear that use of their stuff in a particular way wasn't infringement and wouldn't result in legal action I'm perfectly fine with it, my objection is to adding 'could use X have been licensed?' added to the law as part of the fair use test.

            I can't think of any solution that wouldn't cause a court issue if one side decides to press hard enough. I'm just saying that, in response to your original comment, that including the need for a licence would not necessarily have to be a death sentence for fair use.

            Immediately, perhaps not, my concern is feature creep, based upon the numerous expansions of copyright law.

            Implement a legal test of 'could you have licensed it?' and it's a given that the scope will be pushed by the usual groups, arguing that it's much 'clearer' with 'less confusion' if the limits of what is and is not 'fair use' are laid out in the form of licensing, followed by arguments that if someone could have acquired a licence and didn't then it should be seen as an indication of at the very least possible infringement.

            Those that worship at the alter of The Almighty Copyright have shown that if you give them an inch they'll run a cross-country marathon with it, such that it's better not to give them an opening to begin with, and the precedent of tying fair use to licensing strikes me as something they would very quickly take advantage of to the detriment of fair use as a whole.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jul 2018 @ 5:05pm

      Re: Ah the classic 'the only fair use is paid use.'

      Meaning that every living being is not making a fair use of oxygen because they don't pay for it. /s

      reply to this | link to this | view in chronology ]

  • identicon
    David, 25 Jul 2018 @ 4:41am

    Won't stand.

    As a post on infojustice.org explains, a key aspect of copyright reform is enshrining exceptions that give permission to Internet users to do all the usual online stuff

    And that's exactly why it won't stand. "all the usual" implies a majority of ensuing activities enabled by the copyrighted material, and copyright, as a remuneration construct, should not really just focus on side channels (like printed media are becoming) since that makes it too easy to walk around and also makes author's royalties become too decoupled from their actual ratio of contributing to culture and thus stop doing their job of incentivizing the progress of arts and science and instead incentivize media forms that are better suited for legally binding remuneration.

    So copyright rules that exempt "all the usual" activities from taxation are not doing their job and the usual copyright enforcement societies will not even be out of line fighting them.

    At the same time, the vastly different distribution and consumption channels that new and particularly streaming media have opened as compared to the past call for sensible new rules with a focus on letting creators earn their keep. Copyright societies like a lot of administrative constructs vastly prefer dumping large amounts of money into few projects (in this case superstars) rather than making sure that a whole lot of diversity can maintain a living from tangible contributions to the mindshare.

    So letting the foxes design the hen houses cannot be the ultimate solution either.

    But while the basic copyright legal structures are what content creation incentivization is fundamentally based on, we can expect little else.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jul 2018 @ 4:56am

      Re: Won't stand.

      Even before the Internet, the number of published authors who could live of of their royalties were few. It is the era where the advice to authors to keep the day job comes from. To make a living as an author either required the luck of becoming wildly popular or the ability to write several books a year to keep their fans happy.

      Also note that most musicians, and especially those with long careers, relied on giving concerts rather than recording for their living.

      For most creative people, a small audience and the production of few new works means that they might make a little extra money, but they are not going to get rich from their creativity.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 25 Jul 2018 @ 6:01am

        Re: Re: Won't stand.

        "Even before the Internet, the number of published authors who could live of of their royalties were few"

        ...and the number who actually got published to begin with even fewer than that.

        This is a part of the problem. Publishers from previous eras were used to having a large chunk of the market, so now that they are essentially competing not just with every available work ever published, but works that would never have been published at all. They had the pick of whatever was out there, and usually controlled the end distribution channels on top.

        Meanwhile, nobody likes to be told their work is not worth as much as they believe. But, in prior eras people who didn't get published would blame the 50 publishers who turned them down. If they had an unsuccessful published work, they would blame the publisher they eventually signed with.

        Today, it's easy for both groups to blame piracy or Google or whoever for stealing their hard earned cash. After all, it can't be that the major publishers are putting out cookie-cutter work that raises less interest now people have access to more daring works. It *definitely* can't be that the work isn't good enough to raise an audience by itself. No, it has to be those other things.

        As ever, I'll note - yes, piracy is *a* factor in the problems facing both artists and publishers today, but the answer will never be to lock culture down or give corporations control of everything.

        reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 25 Jul 2018 @ 7:40am

      Re: Won't stand.

      Why wouldn't it? Why should somebody pay or get a license to use a portion of a copyrighted work into a completely different creation that does not substitute the original? Why should anybody have to worry about copyrights when doing their creative stuff if they don't want to?

      reply to this | link to this | view in chronology ]

      • identicon
        David, 25 Jul 2018 @ 12:09pm

        Re: Re: Won't stand.

        Why wouldn't it?

        I know it's a lot to ask, but before responding to a post, maybe read not just the headline but, say, the first sentence or two?

        reply to this | link to this | view in chronology ]

      • identicon
        John Smith, 25 Jul 2018 @ 9:26pm

        Re: Re: Won't stand.

        Because it's a derivative work.

        I could "transform" the articles on this site by adding my commentary interspersed in the articles. Would Techdirt min if I do that?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 25 Jul 2018 @ 10:25pm

          Re: Re: Re: Won't stand.

          Mind*

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 26 Jul 2018 @ 7:42am

          Re: Re: Re: Won't stand.

          Probably not, so long as you make the delineation between your comments and theirs clear. Mike has said in the past that techdirt is free to copy, republish, and redistribute. Repeatedly. Every time someone asks the question. And so few ever do, and so many keep asking the same darn question. It's not clever.

          reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 26 Jul 2018 @ 3:50pm

          Re: Re: Re: Won't stand.

          As multiple people who thought they had a gotcha over the years have been told, no, TD would not mind, so knock yourself out.

          reply to this | link to this | view in chronology ]

  • identicon
    That Conehead Ari, 25 Jul 2018 @ 9:18pm

    Let's get rid of that archaic monopoly on legal services that the Bar Association has, which is clearly outdated, now that the internet is the world's biggest law library. Many legal tasks that can be performed by paralegals at a fraction of the inflated rates that lawyers charge to pay for their overpriced educations should not require one to hire a lawyer.

    Let the MARKET dictate whether people think they need lawyers. Don't force obsolete, overpriced legal serv ices on them.

    reply to this | link to this | view in chronology ]

  • identicon
    John Smith, 25 Jul 2018 @ 9:24pm

    This is actually the standard for Fair Use in America, with the difference that it would no longer require an affirmative defense.

    It doesn't matter: copyright is dead anyway. There's no profit in producing something that will just be stolen, so creators are finding alternatives that are actually more expensive to the consumer, who is left to shovel money at the big corporations who can protect their works and use fame to get people to hand over their money.

    The "books" you see now are disguised or subsidized marketing copy, and useless. They lure in the patrons and the whales, who have to pay thousands for what could have cost ten bucks and been available to the masses.

    Why do you think the Wu Tang Clan album cost $15 million?

    No one is going to keep working for free or to enrich others. There are ways to protect content even without copyright, and the artists are way ahead of the law onthis. The consumer is already suffering a lack of quality that it isn't even aware has exacerbated.

    Steal whatever you want on the internet, since anything on the internet that can be stolen isn't even worththe zero you'll pay for it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jul 2018 @ 10:27pm

      Re: No one works for free.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jul 2018 @ 11:06pm

      Re:

      Why do you think the Wu Tang Clan album cost $15 million?

      Because Martin Shkreli is an asshole. And you know what happened to him, right?

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 26 Jul 2018 @ 1:12am

        Re: Re:

        Yeah, if he thinks "sell something that nobody except one person can use at a price virtually nobody can afford" is a sustainable business model, then good luck to him. The fact that it went to such a horrific example of a primate is just icing.

        reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 26 Jul 2018 @ 1:05am

      Re:

      "The "books" you see now are disguised or subsidized marketing copy, and useless. They lure in the patrons and the whales, who have to pay thousands for what could have cost ten bucks and been available to the masses."

      Erm, what the hell are you actually talking about? I can buy virtually any piece of literature ever written for less than that, and I generally have access to far more of it than any bookshop can physically hold

      "Why do you think the Wu Tang Clan album cost $15 million?"

      The Wu Tang offered to sell it for that, and the slimiest scummiest sub-human fan with the money decided to pay them. Which has now been seized by the government, btw.

      It was a stupid one-off gimmick, and if you think that's repeatable on a regular basis, you're an impressive large moron.

      "No one is going to keep working for free or to enrich others"

      Nobody's asking them to. We're just telling them that "look I made something, pay me!" does not work just because you demand it - and never has.

      "Steal whatever you want on the internet, since anything on the internet that can be stolen isn't even worththe zero you'll pay for it."

      So, you're cool with pirating literally any media?

      reply to this | link to this | view in chronology ]


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