Copyright, Copyleft, Copysouth

South African copyright law faces reform, albeit with some delay as president Ramaphosa has sent two bills back to the National Assembly for reconsideration. There are many sides to this reform, one central issue is the concept of “fair use”. The theory is that there should be exceptions to copyright for things that are too small to negotiate licenses over, for example your favourite song playing to your holiday videos. Sounds good right? And “fair use” has a nice tone to it, who could be anti-fair? This points to some of the core concepts of intellectual property rights.

Big tech and pirates have lobbied to get the fair use-rule into South African copyright law, with push back from the creative community and the publishing sector in particular. Why is this so important to Big Tech? Who cares about holiday videos?

Imagine a video-sharing platform where users can upload any video they like, no charge, no delay. Convenient for users, free content for the platform, lots to choose from for the viewers. But what if users were to upload other people’s content? TV-shows, movies, music? Things that cost money to access elsewhere? Big fight follows. “Don’t break the internet”, says platform. Those who made and funded the content feel they’re being robbed. Platform makes lots of money. Sound familiar?

With “fair use” distribution of other people’s content, becomes the problem of the owner of that content. Not the problem for those who distribute it or provide the means for distribution. With licenses, it’s the other way around: ask first, distribute later. Rather than reply to requests, creators must police platforms to find their own works and humbly ask to have it removed (in many cases only to see it pop back up soon after). Fair use turns the tables on the creators.

But perhaps that’s just what some countries need to “catch up”? What if some copyright laws are too strict in order for local businesses to be competitive? Could be. Except the main obstacle to competing as a digital business may not be copyright but the gatekeepers who can dictate the terms for market access and pick the winners. And for the local creative businesses, fair use may take away from their opportunity to be a business at all.

Intellectual property is not the enemy of economic development, but the driver. Consider this case, which is from Ethiopia, not South Africa, and about trademarks, not copyright, but the point remains:

Coffee growers had difficulties getting a fair share of the market price for their product. Ethiopia’s government made an experiment, registering trademarks for some of the regions where the beans were grown. Despite pushback from café “platform” Starbucks, Ethiopia successfully established the trademarks and then licensed them to the growers. With this stamp of approval, marketing tool and quality mark, the growers more than tripled the revenue from the harvest. Same coffee, three times the value. Poor farmers win, café platform has a small cost increase but can in turn use the trademarks in their marketing. What would fair use have looked like in this context?

In the case of South Africa, it may not be coffee beans but rich culture heritage and creative works that are in focus of the current debate. However, the South African law-makers must figure out which strategy works best to increase the value and how it should be distributed.