On 11 and 12 August 2021 the Parliamentary Portfolio Committee on Trade and Industry held hearings on the Copyright Amendment Bill (CAB) and the Performer’s Protection Amendment Bill.
Dr. Andrew Rens from Research ICT Africa presented on important issues in the CAB to the committee.
The hearings are the latest chapter in a long history that began in 2011 with a commission inquiring into the failures of collecting societies to pay South African musicians. Although both bills were passed by the parliament in February 2019 the President did not sign them into law. It was only after organisations representing blind and visually impaired persons began constitutional litigation that the President referred the bills back to the parliament. In terms of section 79(1) of the South African Constitution the President must assent to a bill passed by the parliament. The only basis on which the President can refuse to sign a bill into law is if he refers it back because he has constitutional reservations. Citing concerns about the constitutionality of several provisions the presidency returned the bills to parliament. The committee requested written submissions. The submission by RIA focused on exceptions that are important to innovation and the ICT sector in South Africa.
Dr. Rens, senior research fellow at RIA also wrote a Joint Academic Opinion, together with fellow academics that was submitted to the parliamentary committee.
Following written submissions, oral hearings were held. Dr. Rens presented together with fellow authors of the opinion, focusing on the importance of proposed section 12A, known as the ‘fair use’ provision. Section 12A is what is known as an open ended exception; it lists an extensive list of uses that people can engage in with respect to a copyright work. These include education and research uses. But it enables a court to add similar uses so that technological developments do not immediately render copyright law obsolete. New uses, and the need for new exceptions have arisen even during the time between the drafting of the bills and the present. An important new use is machine learning, which uses thousands or tens of thousands of inputs, for example photographs, to train a machine learning module. The Presidential Commission on the 4th Industrial Revolution regards machine learning as so important that it recommends including machine learning in school curricula.
While some inputs, for example weather data, are not subject to copyright, others such as photographs are usually copyright. Similarly while some uses required for machine learning do not implicate copyright some do. But it is impossible to trace and get permission for each copyright holder of a photograph in a training set of thousands or hundreds of thousands. An exception to copyright is required. While some countries have tried to write specific exceptions, it’s not clear they work. But a flexible copyright exception not only authorises most uses for machine learning but can adapt as technology changes and new technologies need to be accommodated.
The CAB is still in the South African Parliament, opposed by collecting societies and some traditional publishers. In the meantime innovators and entrepreneurs are blocked by a law drafted in 1978.