The Copyright Amendment Bill risks undoing all the recent gains by the South African research sector for locally published and African-led scholarly books and accredited journal articles. These far-reaching effects are discussed in the following article.
South Africa has an established history of publishing programmes pursuing almost exclusively social justice and meaningful change. These mission-led publishers, such as university presses and publishers based at institutes, produce original, peer-reviewed books and journals with the aim of reaching as wide as possible a readership and contributing to the common good of society. Their ultimate aim however remains to contribute meaningfully to expanding knowledge and to help develop the debates and arguments that are central to scholarship.
Mission-led publishers rarely, if ever, generate any sort of profit; the limited sales are used to continue investing in new research works. Although the value of such cultural organisations for both the country and scholarship in general needs to be emphasised, more important is their fundamental aim, that intellectual capital should remain under the control and ownership of the authors and publishers and the countries and regions that produce them for the benefit of all. For a Bill which attempts to redress past injustices, it is curious that our mission-led authors and publishers are now in danger of being side-lined.
There has been considerable growth in the scholarly book-publishing sector in South Africa over the past decade and a half. A Study of Scientific Journal and Book Publishing in South Africa: 2005–2014 (2017) conducted by the Centre for Research on Evaluation, Science and Technology (CREST) highlights this growth: from 2005 to 2014, unique book titles submitted for accreditation increased from 33 to 162 and unique chapters from 98 to 964.
The CREST report also underscores significant improvements in impact through citation measures, using a normalised view. Although the report on South African published and accredited journals is yet to be released, the preliminary findings illustrate the tremendous value South African published scholarship has in terms of impact from both books and journals on the world stage. Although total South African scholarly output is low compared to total world output, South Africa’s citation impact factor has increased markedly since 2010 and is currently around 7.1%. This global impact in terms of research innovation and published scholarly books and journal articles is a remarkable achievement.
The broad exceptions to copyright in the Bill would remove fundamental rights asserted by authors and publishers in terms of how the works can be produced, marketed, sold and disseminated; would undo the significant gains made in local Open Access publishing; would expose locally produced scholarship to expropriation, unacknowledged and uncited re-use and adaptation, and misappropriation of locally produced scholarship.
Mission-led publishers, who are already under-resourced, would not have the capacity to pursue any such occurrences legally and the onus of these pursuits would thus be left to their already strained parent institutions. Scholarly presses are run on shoe-string budgets. The effect of the Bill would almost immediately affect their ability to produce books and journals locally, maintain competitive prices, and ensure the widest reach for the publications.
There is thus the risk of local scholarly publishing being decimated. The subsequent risk is the degrading of locally produced evidence-based research, knowledge production, authorship and citation to the extent that, within two to five years, we could see catastrophic effects on South African research organisations such as universities and institutes.
The Bill’s unwaivable claim to a royalty by authors, including non-South African authors, means that the practice of assignment of copyright for no remuneration in the context of scholarly publishing has not been considered, and will have such an impact on both subscription and Open Access publishing, that the very existence of university press publishing in South Africa is threatened. Undoing progress in South African research publishing will also severely threaten global dissemination thereof. In effect, South African research would no longer compete globally, and knowledge production from South Africa would enter a vacuum.
This in turn would have an overall effect of severely damaging the high regard in which South African produced scholarship, research and analysis is held. Local authors would, understandably, react by seeking to have their research outputs published by publishers from the global North, and would relocate their published research works out of the South African space. Larger commercial publishers from the global North would likely seize the opportunity to enter into the space left unoccupied by the local scholarly publishers.
As South African scholarly and journal publishers we find the following specific issues in the Bill of critical concern:
(a) A novel and poorly considered “hybrid model” of copyright exceptions based on ‘fair use’. This model involves a ‘fair use’ defence to infringement, coupled with new general exceptions and new specific exceptions for educational institutions, libraries, archives, museums and galleries, as well as a contract override clause undoing all contractual terms that could conflict with these exceptions.
(b) The “hybrid model” includes ‘education’ as a permitted ‘fair use’ purpose and goes much further than in other countries that have ‘fair use’ exceptions, such as the United States.
(c) Educational exceptions allowing educational institutions to make copies with no consideration of existing licensing arrangements.
(d) An exception allowing portions of works to be cut and pasted into theses and scholarly outputs, only having to acknowledge the author of the original work “if practicable”. This removes plagiarism from the scope of copyright enforcement.
(d) A compulsory but vague ‘Green’ Open Access policy, in which final published versions of journal articles benefitting from at least 50% State funding are to be placed in Open Access repositories by authors and librarians. These articles will be available, with no embargo (usual in international practice), for public access. This practice, which is to apply retrospectively, will contradict existing Open Access agreements.
(e) Concern that the exceptions will mean that South Africa will be in breach of its international treaty obligations under the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), as advised by experts in copyright law engaged by Parliament.
(f) The unwaivable claim to a royalty by authors, including non-South African authors, even after assignment of copyright. This means that even if an author had agreed to a once-off payment instead of ongoing royalties, and had assigned copyright to a publisher, royalty payments may have to be made in addition to what the publisher had already paid the author. All copyright works, even if assigned by authors, will therefore carry a potential liability indefinitely, that will probably deter most people from dealing with all but the best South African copyright works.
(g) All assignments of copyright in literary works by their authors to be subjected to a limitation of 25 years. This is an ill-conceived attempt at inserting a “reversion of rights” provision in the section of the Copyright Act dealing with the formalities for the assignment of copyright.
(h) Copyright in works made under the direction or control of “local organisations” determined by Ministerial decree will automatically vest in those organisations, not in the authors. “Direction and control” is a standard applied for vesting copyright of works made by authors in the scope of their employment, with their employers. However, under this new clause, this automatic vesting of copyright with local organisations will apply even where there is no relationship of employment and without there even being a condition of some form of remuneration for the authors.
(i) A clause overriding all contractual terms that “purport to prevent or restrict the doing of any act which by virtue of this Act would not infringe copyright.” This would subject all existing and future contracts dealing with copyright materials to the new Act.
(j) In a glaring contrast to recent copyright reviews in the United Kingdom, Australia, Singapore, Ireland and New Zealand, no Government research or impact assessment of the far-reaching effects of this legislation has been carried out to the extent that is expected from the Government’s own internal procedures.
The Bill’s passing into law will have results to the detriment of academic authors and scholarly publishers, and the research that they undertake and publish. In short, local research would be at risk, knowledge production in South Africa would decrease in a short period of time, and we would have even less control and ownership of our publicly funded knowledge than we currently do.
A thorough review of the Bill, in conjunction with a full impact assessment study would doubtless reveal the many weaknesses and pitfalls embedded in the Bill in its current form. The necessary updates to the Bill for digital use and dissemination, if properly and cooperatively generated, will ensure that the rights of authors are entrenched rather than invalidated, and that the increased success of South African scholarly and academic publishers continue to assume their rightful places in scholarship.
Jeremy Wightman is the Publishing Director at HSRC Press and chair of PASA Scholarly Publishing Sector Committee. Andrew Joseph is the Digital Publisher at Wits University Press and member of PASA Legal Affairs Committee.