The strangest alliance has been formed between copyright and intellectual property academics, US tech giant Google and the Department of Trade, Industry and Competition, which have collaborated to make South Africa’s copyright law weaker.
It was not anyone’s intention to harm artists. It was commonly accepted that the Copyright Act, last amended in 2002, needed to be revamped to bring it into line with the needs of the digital environment and to improve the position of creators and performers, following recommendations of the Copyright Review Commission in 2012.
Fair use is used in the US and allows for the unlicensed use of copyrighted works in certain circumstances, such as education, parody, news reporting and, it seems, software development. Most famously, the fair use principle was at the centre of the Google vs Oracle case, in which the court held that Google’s copying of code from the application program interface of Oracle’s Java platform for the creation of Google’s Android operating system constituted fair use under copyright law.
However, Dr Andrew Rens, attorney, academic and policy advocate at Research ICT Africa, believes fair use is appropriate and makes more sense, particularly in the world of software development. The imposition of “statutory royalties” is another source of controversy. This is to ensure that, when a piece of work such as a book, song, play or movie, is an unexpected hit, the creatives involved also receive their slice of the rewards. It sounds reasonable on paper, but Trish Downing, executive director of the Independent Producers Organisation, says that, although this is a laudable intention, this is a blunt instrument that could have the opposite effect.