EU Joins In The Bullying Of South Africa For Daring To Adopt US-Style Fair Use Principles

from the copyright-maximalists-made-me-do-it dept

As part of its copyright reform, South Africa plans to bring in a fair use right. Despite the fact its proposal is closely modeled on fair use in American law, the copyright industry has persuaded the US government to threaten to kill an important free trade deal with South Africa if the latter dares to follow America's example. If you thought only US copyright companies were capable of this stunningly selfish behavior, think again. It seems that the European copyright industry has been having words with the EU, which has now sent a politely threatening letter to the South African government about its copyright reform (pdf). After the usual fake compliments, it gets down to business in the following passage:

we once again regret the foreseen introduction in the South African copyright regime of provisions relating to fair use in combination with an extensive list of broadly defined and non-compensated exceptions. This is bound to result in a significant degree of legal uncertainty with negative effects on the South African creative community at large as well as on foreign investments, including the European ones.

Invoking "uncertainty" is a standard ploy, already used back in 2011 when the UK was considering bringing in fair use. It is manifestly ridiculous, since the US provides a shining example of how fair use does not engender any terrible uncertainty. America also offers a rich set of legal and commercial experiences others can draw on when they implement a fair use right. Here, "uncertainty" is just a coded way of threatening to withdraw investment in South Africa. It's an empty threat, though, since US history shows that fair use encourages innovation, notably in the digital sector, for which investors have a huge appetite. The EU letter goes on to tip its hand about who is behind this whining:

The European right holders continue expressing their concerns to us in this regard as they have done during the consultation period. All creative sectors in the EU, film industry, music and publishing industry have pointed to the possibility of revisiting their investment plans in South Africa due to these concerns. Other sectors, such as those which are high- technology based, could also suffer as a result of legal uncertainty created by the new regime.

That last sentence is revealing. If the digital sector had actually expressed its fears about "uncertainty", you can bet that the EU would have mentioned it as a serious issue. Since it is framed as "could also suffer as a result", we know that this is just the EU's hypothetical. It is an attempt to get around the awkward fact that high-tech companies love fair use in general, since it gives them far more scope to try out exciting new ideas. It's sad to see the EU slavishly doing the bidding of copyright's digital dinosaurs, and joining with the US in the unedifying spectacle of bullying a small nation trying to modernize its laws.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: copyright, eu, fair use, innovation, south africa, uncertainty


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  • identicon
    Bobvious, 30 Apr 2020 @ 4:12am

    Nice set of rights you have there, South Africa

    It would be a pity if someone set fire to them, https://en.wikipedia.org/wiki/Necklacing

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

  • identicon
    Anonymous Coward, 30 Apr 2020 @ 4:24am

    Refresh my memory. Is this the same EU that's been using rabid-bat-guano-insanely fascist notions of copyright to drive foreign (American) investment OUT of the EU? Or is it some other EU? Perhaps the Extremely Unrealistic political party in the Feudal Reactionary Alliance of Neolithic Corporate Elitists? The Ethically Unbalanced crime families in the Society for Propagating An Inequitable Normalcy?

    If this were an American organization, everyone would probably accuse it of being chauvinistic. After all, the Americans invented chauvinism, right?

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

    • identicon
      MathFox, 30 Apr 2020 @ 7:31am

      One can look at the EU as a group of countries and then some are more insane than others, but don't blame the EU for the actions of French government. (Hey, the French came up with the term chauvinism over a cup of warm wine.)

      On the other hand there is the EU of disagreeing institutions; civil servants disagreeing with parliament disagreeing with the commission disagreeing with the council of ministers... For this bullying letter I would blame copyright lobbyists. (Partly paid from US funds.)

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

  • identicon
    Anonymous Coward, 30 Apr 2020 @ 5:16am

    Hmmm, sounds like that letter may infringe on some US based copyrights. Shame on the EU.

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

  • icon
    That One Guy (profile), 30 Apr 2020 @ 6:22am

    'No no, that's only for us to use.'

    But of course if you asked reps from those industries directly what they feel about fair use they would be gushing about how great it it, how it encourages creativity and not so incidentally allows them to do so very many profitable things. It's only behind the scenes that they are honest enough to admit that if they had their way fair use would be utterly gutted, with the only use allowed being paid use and to hell with any of those 'creators' they hide behind because if it's not making them money then it doesn't count.

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

  • identicon
    Anonymous Coward, 30 Apr 2020 @ 7:12am

    The thing about fair use is it does not stop the copyright-owning rent-seekers from seeking rent, nor from suing anyone for what is believed to be infringement, forcing most people to settle because the cost of defending against copyright litigation is sky-high. So there is really no uncertainty there.

    All it does is gives sued users a possible defense, more like lottery ticket redeemable in court, and only if they are sued. Very few people take those tickets all the way to redemption.

    Well, there's that, and... in common-law regions, fair use creates the possibility of a future judicial precedent that may or may not be in the industry's favor. The industry very much prefers that bought-and-paid-for legislators, not judges & juries, decide where to draw the line between infringement and reasonable uses that don't require a license.

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

  • icon
    Anonymous Anonymous Coward (profile), 30 Apr 2020 @ 7:25am

    Looking at things backwards, again

    The worse thing that could happen to any IP is for it to be unknown with nobody talking about it. The fact that someone came up with a way to talk about their 'property' should be seen as a marketing ploy they failed to think of, and shame on them for that failure.

    As fair use stands in the US (and presumably soon in South Africa), it should be incumbent on the IP owners to thank the fair use innovator for their marketing efforts, and send a little money that way. Instead they choose to go all legal, invoking the Streisand Effect, which in a weird way extends the conversation about the IP, but that is only a positive if the legal asshatery is ignored.

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

  • identicon
    Anonymous Coward, 30 Apr 2020 @ 10:40am

    and will eventually do exactly as the entertainment industries deny, but in actual fact are really after, total control of who does what on the Internet, the thing that is supposed to be free for everyone but as it's the best media distribution platform invented to-date, cant wait to get that control!!

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

  • identicon
    Matteste, 30 Apr 2020 @ 11:59am

    It's only fair as long as it is just me.

    And thus we are once again reminded of how deep the claws of the copyright maximalists run in our governments and of the Plutocracy we live in.

    Hard to be optimistic these days when copyright is just walking further and further down a maelstrom of control and madness, driven by the wealth of those who already have everything yet craves even more.

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

  • identicon
    Anonymous Coward, 30 Apr 2020 @ 1:31pm

    Stand strong South Africa - if you do, the media industries will not do a thing. If you fold they will crow about thier power over you.
    This is about your people

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


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