Copyright: South Africa’s free-agent media-hell

COLUMNIST Modibe Modiba has been ordered to pay Daily Maverick R100 000 damages after he falsely accused the media outlet of ‘paying him, and other students, a weekly stipend to write articles’. Of course this wasn’t true, since Maverick editor, Branko Brkic, lead evidence that he hadn’t paid the writer a cent.

Modiba was also ordered to remove defamatory comments and apologise for accusations of racism, and a conspiracy to produce articles critical of Independent News and its owner, Iqbal Survé, the EFF, and others. Delve a bit deeper into the four unpaid ‘columns’ published by Maverick and anyone can see where the problem lies.

I am not going to ruminate on the merits, nor unpick the skinner and gossip involving Modiba’s submissions to Iqbal Survé ‘s grotesque news agency, suffice to add that both Brkic and Survé have tended to rely upon a grandfather clause in our country’s Copyright Act that essentially awards publishers and especially the daily-press, the right to publish unsolicited material for gratis, and to readily assume ownership of an individual’s copyright in perpetuity.

Yes, you read that right. If I submit the product of my labour to a newsroom editor, under the current Copyright regime which has prevailed for decades, the publisher walks away with my work and I have absolutely no comeback in terms of the act, which in any event, pretends that the High Court would assume itself to be a Copyright Tribunal — on the off-chance one ever succeeded in convening an inquiry into accusations of unfairness and unfair-dealing of material? Most certainly an overly solicitous situation, feeding nothing more than the legal profession and keeping those silks who eschew roast beef gnawing on lamb cutlets.

Since I am not up entirely up to speed with the progress of the Copyright Amendment Bill (CAB) which was sent back to Parliament by President Ramaphosa in 2020, I am not going to entertain you with anything resembling an educated opinion suffice to add that the Bill “seeks to provide a right to fair remuneration for all authors and performers”, with the objective of ending the situation in which “numerous famous South African creators who, despite their success in the creative industry, died as paupers.”

Thus the CAB aim is to correct the problem that the “distributors of copyrighted work are dominated by multinational monopolies that are able to exact enormous concessions in their contracts with South African creators.” Among the tools to address this problem in the Bill is a new right to a “fair royalty” for authors and performers, which applies to existing as well as future contracts.”

So far as I am aware, the grandfather clause resembles droit-de-seigneur or the medieval right to sleep with the bride by virtue of seniority, a carbuncle still evident in the Bill last time I looked. Reason being is that if you have ever sat in a newsroom, you will know that editors are practically drowning in unsolicited submissions, and the business of the press, is well, to report the news.

Copyright Act, Amendments mooted

THE APARTHEID-ERA Copyright Act was designed to keep intellectual property out of the hands of producers of content and in the hands of big corporations.

Latest draft amendments issued by the South African government merely expands the ambit of the act, with scant attention to the rise of permissive “copyleft” licensing. Even worse, the amendment could fraction what little remains of the public domain or knowledge commons.

Those creators who wish to license their works under a permissive license are in for a shock. Since the act operates as if in a vacuum, as if several schemes under the knowledge commons do not exist or are not relevant, (read Creative Commons, GPL) — the amendments thus enforce resale royalties without reference to permissive licensing (unless you happen to be disabled), with the unintended consequences of making such licenses unenforceable.

In one stroke of a pen, the proposed Copyright Amendment Bill could make copyleft licensing illegal, since any independent assignment or waiver of rights external to the act will be prohibited. In short, there will be no way out of Copyright if you are a producer, but several ways around Copyright if you happen to be publisher. So yet another blow, to both the public domain and to permissive licensing under private contract and similar schemes.

Luckily, all is not bad. There are some significant and overdue paragraphs on Fair use, Temporary reproductions and Educational use, which make life simpler and easier for publishers, educators and even artists. It has taken some 20 years to balance the previous regime’s Fair Dealing concepts with Fair Use, and after several cases, the amendment may go too far the other way. How does one deal with aggressive online content aggregators and site scrapers?  Are we seeing the rise of compulsory licensing of content under a regime which undermines private and commercial law?

As a rule of thumb, and as copyleft activists point out, there is a world of difference between reproducing material for educational purposes and selling the same material for the purpose of making money, and how to balance these two poles has always been a bit of an administrative nightmare.

While the visual arts industry must be dancing for joy, now that the issue of ‘resale royalty rights’ has finally reached the desks of the country’s legislators (I once had the audacity to propose a similar private scheme back in 1997, only to be shouted down by slick arts dealers who stand to lose a percentage of each and every sale, to the originators of the work!), there are a number of concerns around administration and definition, for example what constitutes a work of art versus a simple archive image?

Since the amendments’ main innovation in this arena, appears to be to control ‘resale royalty rights’, the proposals mooted will inexorably alter the default copyright regime, to one in which all works of art, have vested resale rights. All good and fine for the William Kentridges of this world, but there’s a bit of a poison chalice in this, since the result also perversely puts an end to “private contracts” and likewise the definition of “person” under common law. Such a situation may thus have unintended consequences.

The amendments will introduce uncertainty through lack of consistency in its application to different media.

Photographers for example, have expressed some bewilderment regarding the acts definition of composed photographic works. If money changes hands for whatever reason, (could simply be an exchange of bananas), the producer of content can see his or her copyright transferred wholesale to the “composer of the image”, who is not necessarily the photographer, and without any remuneration or negotiation on resale rights.

Likewise, writers and journalists who submit work for publication are still stuck in the old regime whereby copyright is vested automatically in large media publishing houses, and not the originator of the material.

Predictably, the issue of Digital Rights Management (DRM), one which is bound to be controversial for online torrent users and downloaders of Hollywood content, sees its appearance in the definition of “technological protection measure”. Thus circumventing DRM on your own private computer, is on its merry way to incurring stiff penalties. Unlocking your Windows 10 Media Player to listen to independent radio stations could put you in jail, as would decompiling any computer programme with DRM inside it.

The inclusion of “orphan works” as a definition, may be good news for large copyright collecting societies, who can now mine abandoned works that devolve to the state as “public domain works”, by simply claiming their owners cannot be located. The amendments fail to establish how a works provenance and originator would be tracked, and could lead to paintings, photographs, and other works being hijacked by putative owners, from creatives who cannot be located, not because they are no longer alive, but because they haven’t paid their subscriptions to SAMRO.

The issue of needle-time is fraught with difficulties in application. What may apply to a national radio station or a large theatre is surely not applicable to a small venue, but the law has been unevenly applied and the new amendments do not provide much in the way of clarity. Music collection agencies tend to sue artists for sampling Dr Dre, and those beats you played in your backyard, on that old Djembe could turn out to be owned by Universal Records, in which case, you may be in breach of the new regulations.

Food for thought, the amendments are a major revision of the Copyright Act, and  appear to introduce a massive boost for local content and artists when it comes to broadcasting needle time and royalties, but as to why broadcast content should be dealt with by an Amendment to the Copyright Act and not the Electronic Communications Act, is anyone’s guess.

The public has until 26 August 2015 to make submissions on the draft proposals.

[David Robert Lewis is the publisher of Medialternatives]

Butchering the Copyright Police

Copyright is not a right, but a commercial privilege. It is used by authors and artists to control the sale of copies of original work which would otherwise fall into the public domain. As such it is a legal fiction invented by law professionals, who often ignore the rights of others, those who may desire to create derivative works, for example literary allusion in which a poem refers to another poem.

The family business

The recent claim by the artist Jane Alexander which ended with the conclusion of a lucrative deal with “Die Antwoord” is a case in point. According to Alexander’s lawyer Martin Heller the well known sculpture on permanent exhibition in the SA National Gallary, “was used in the video without Alexander’s consent”.

A substantial part of the video showed an animated figure identical with the sculpture’s outer left figure”. That’s right, an animated representation of ONE of the Butcher Boys.

Where do we draw the line between a new and derivative work?

Alexander says she “did not intend to limit her work’s interpretation, and [she] does not seek to interfere with other artists’ work.”

However, in this case, she was merely concerned that “Die Antwoord’s use of her work and its context might be publicly perceived as reflecting her own artistic intention.”

So even though, Alexander readily admited she did not want to “limit her work’s interpretation” she obviously did not want the creation of derivative works which may be misconstrued as her own, and it would seem the desire to create a perpetual monopoly in which any reference to the Butcher Boys is now the subject of legal scrutiny, has won the day.

One can easily see how the copyright scheme, proposed by Alexanders lawyers might work, but in order to enforce her claim, which has yet to be tested in court, a regime of enforcement of legal rights by threats of legal action is created. Artists are silenced, the settlement has the effect of dissuading others from referring to the Butcher Boys without permission, for fear of a commercial rights violation.

It is a control regime based upon an outdated perception of private property in our common law, one which is based upon scarcity, in which copies are controlled because of scarcity and where the only people likely to do copying from a commercial perspective are well-heeled operators. It is not a regime which takes into account the way the Internet has developed.

The South African Copyright Act, has yet to accept the presence of rights conferred by other schemes, for example the Creative Commons and GNU GPL license, but is due for a review later this year.

If you are concerned as I am, about the manner in which Copyright violates rights conferred by the Constitution, I suggest you campaign for an amendment, one in which actions such as the claim made by Alexander, would be outlawed.

Shembe deal on Vuvuzela rights.

DURBAN, South Africa — AFP reports a South African church has reached a deal with a vuvuzela maker acknowledging that their prophet in 1910 invented the horn that has become the sound of the World Cup, a spokesman said Tuesday.

The Nazareth Baptist Church says its founder Isaiah Shembe invented the monotone instrument a century ago using antelope horns, which his followers used in prayers.

The church had threatened a lawsuit to assert their intellectual property rights over the vuvuzela, which is now mass-produced in plastic and has become the must-have accessory at World Cup matches.

“We are now considered as the official makers of the vuvuzela. We are going to work together,” said the church’s spokesman Enoch Mthembu.

In the 1980s, supporters of Durban’s AmaZulu football club began blowing horns made out of antelope horns or stalks of sugar cane in stadiums.

The tradition was adopted by the Kaizer Chiefs in Soweto, who popularised the instrument around Johannesburg.

Masincedane Sport Company decided to mass produce the horns in plastic in 2001.

The company said it would release details of the deal later this week.

The Nazareth Baptist Churchalso known as the Shembe after its founder, and which claims four million followers and mixes Christianity and Zulu traditions.

Shembe is revered as an African Messiah.

Mthembu said the church wanted to prevent copycat versions of vuvuzelas coming from China.

“Today, our main concern is to close down illegal manufacturers and the Chinese companies which produce very cheap items,” he said.

“It is important for us to be recognised as the inventor of the vuvuzela. It is a South African instrument and the production is out of control now.”

If The Pirate Bay loses, we all lose.

It may seem trite to talk about file-sharing without taking into consideration the rights of copyright holders, but copyright holders are just as much to blame for the growing knowledge gap in the developing world, as they are for the contemporary movement which appears to have reached its apotheosis in the shenanigans surrounding The Pirate Bay.

Take a moment to reflect on the irony facing today’s torrent user, no longer restricted to the predominantly white, European upper classes able to afford computers and bandwidth. As is increasingly the case, the average torrent downloader is more likely than not a newly enfranchised and computer literate African or Asian. Having survived the isolation of life without the Internet, and the phenomena of the digital divide, and eager to catch up on lost time, he or she will be entering a more restrictive, less free Web than the one which created the torrent file-sharing craze in Europe and America, and only to find that the sites which gave birth to the epic destruction of copyright values, no longer exist.

Can we blame these new Africans and Asians from being angry with the double oppression, so emblematic of political studies textbooks which must now inform any debate on the subject of file-sharing?

What a depressing state of affairs then to be greeted with the apparent demise of The Pirate Bay exactly at the same time that we Africans have enought bandwidth to download anything of any significant value? Having sung the joys of free and open societies, Europeans and Americans are simply closing doors and moving on to another economic universe.

Arguing for a stay of execution then, in the Pirate Bay judgement which could see the worlds biggest file sharing service close for good, may appear like  sheer opportunism, a Johnny-come-lately wanting rights over a rich mans kingdom, knowing full well that expressing such a wish, is sheer advocacy of criminality, but surely there is nobody who can deny the injustice of capitalist exploitation, so harshly illustrated by such a digital delay – As South Africans we are about 15 years behind the dominant culture on this planet.

Look at it another way, our American and European brothers, having grown exceedingly wealthy in terms of piracy, now appear content to let content simply vanish into a mashup culture as we are all forced to embrace a world in which creative production has been liberated from the shackles of copyright.

So not only are we expected to share our productive wealth, freely, we are also expected to conform to the many innovations in copyright law which have given us, Creative Commons, Copyleft, FOSS and so on, all handed down to us like the proverbial fleece.

Be that as it may, we really do have some form of right to the collective commonwealth of the planet, in a time in which there has been more information produced in the last year than the entire span of human history.

Why should we be remain shackled by exchange control inequalities and monetary policies (such as that the World Bank) which has garnered our national debt, and sold subsequent generations to the factories and sweatshops from which many will never escape?

Torrents and filesharing would appear to be one way of softening the blow — in exchange for decades of colonisation and slavery we all get to share in the collective commonwealth, copyright notwithstanding?

Such pleas to the collective gestalt may seem like a giant guilt trip, more sound arguments must therefore be deployed. The danger in not in opening society to a post-propertied, and post-copyrighted world, but that we Africans and Asians will simply continue on our schizophrenic way, in the process dismantling what remains of our former colonial masters and their fixations with torrents and file-sharing.

Our culture and civilisation will fall into the breach.We wil be the ones being torrented and sampled and will we want to behave like those masters who wage war merely to assert property law?

The popular perception of value which the supposed goods you and I  wish to liberate (steal would be a better word) is merely that, a perception.

Online will Africans simply buy the discarded remains of the 20 and early 21st Century – all that has already been deprived of value by torrents and filesharing? Are we just another market, to bolster the failing economies created from the exchange of intangibles?

Surely this is what the Pirate Bay represents, a giant remainders section in which the files themselves have no intrinsic worth other than the fascination any one individual may have for what many suppose  to be a rivelrous resource. Yet in a world of instantaneous duplication, where the  usual property law do  not apply, where is the rivelry? There is surely more than enough to go around?
I am reminded of the days of yore in the old South Africa when Record Libraries were still legal. For a small fee anyone could join and the resulting clubbing together of finances meant we all benefitted from rare acquisitions which no single person would make in their sane mind.

After the Libraries were banned, because “Home Taping is Killing Music” and in order to enforce control over the occasional hit, the social fabric went back to self-serving greed. We instantly became poorer for it. Instead of wonderfully obscure and complete collections of audio, – music as a resource — we ended up with the usual Top Twenty scarcity and the resulting loss in sensation reduced our culture to a poor facsimile. In other words, Home Taping didn’t Kill Music, Banning Record Libraries did. (Isn’t it strange that to achieve anything like popularity, a song has to be ubiquitous, but to be economical it must also be considered scarce?)

The same travesty of selfishness will happen if The Pirate Bay disappears completely. We will go back to our usual predilections, which are informed by bad Hollywood bestsellers and lowest common denominator compositions on MTV and SABC. Might I therfore suggest some kind of a rule which might appease the industry which is now killing torrents, and which has its sites on your hard-drive – do you have receipts for the latest copy of  Lady Gaga, Madam?

A ban on anything uploaded which was created in 2010.

At least with time-based scarcity, we would not have to argue against the novelty of intellectual property  but rather against the insane idea that copyright should last over a lifetime and beyond into the grave. Copryight should really be reduced to one or two years at the maximum. That way, we all won’t be 15 years out of date, or end up living in a time-warp in which none of the major influences have any chance to influence. Musicians will still get paid, because a one hit wonder which lasts for week will still make money. But the argument that this should be extrapolated out ad infinitum has surely been done a death by the surge of copyleft items which are drowning out copyright works. The sheer volume of free stuff on the Internet is levelling everything, because who wants to be forced into paying for last week’s news? Nothing is sold, everything fades into oblivion, even the memories we once treasured as a species before the computer age came along.

Less torrents = less influence.

It is copyright which is killing the pop music industry.

Aargh, after 15+ years M&G finally gets free software.

During the height of the transition, I submitted an article about software piracy to the Weekly Mail. Needless to say it was rejected by technology editor Arthur Goldstuck and no reason was given. The polemical piece, written in an age before pervasive Internet and P2P championed the cause of free software in the face of piracy and dangerously played with the pirate mythology, casting such advocates as heroes rather than anti-capitalist bandits. As Karl Kraus would have put it: And now, only Piracy will be permitted.

Speaking about piracy today without also declaiming about free software and the open-software movement is, in hindsight a bit like quoting Adam Smith whilst forgetting Das Kapital. Capitalism is not served by ignoring its critics, and neither is journalism in South Africa. Yet almost two decades later, the reconstituted Mail & Guardian is attempting to win back confidence with South Africa’s youth, by publishing a one-sided pro-piracy confabulation by an anonymous author which repeats many of the same mistakes of the prescient article which was eventually published in the final edition of Kagenna magazine.

Fact remains, the first instance of free software advocacy and no holds barred discussion about piracy anywhere in South Africa occurred whilst I was at South. The exact same arguments used by today’s tragically hip anti-DRM intellectuals appeared in the newspaper under my own byline. There was no sense in anonymity. As journalists we were all targets of state-sponsored terrorism and corporate dirty tricks.

The struggle weekly situated in the heart of Cape Town’s coloured community exceeded the Weekly Mail, not in volume but in its majesty of open discourse. Despite this, the subject was considered taboo by the white elite who owned newspapers read by IT specialists and the nouveau riche who could afford to buy software.

South Africa has a terrible track record of censorship. Today we might have a clause guaranteeing freedom of speech and freedom of communication, but corporate interests and sponsor representation at boardroom level dominate the mass media and circumscribe our discussion about topics which impact on the future. The Mail & Guardian is one of the worst offenders. Having struck out against copyleft and the Creative Commons in a debacle involving its failed Amagama website, the mandarins at the Guardian are now merely face saving by cynically backing the inevitable rise of free culture around the planet. Too late to trumpet the joy of digital file sharing in an open-source universe and the realignment of Intellectual Property as opposed to open piracy and P2P?

The one-sided debate, or rather total lack of debate on the subject, can only be seen as a conspiracy on behalf of big business and corporate interests. The Mail and Guardian has a decidedly selfish agenda. What Paulina Borsook would term cyberselfishness is merely being played out under the guise of a pro-piracy ventilation which when putsch comes to shovel is all about South Africa’s fashion conscious new digital elite, who can ignore the demands of the masses for free and open source communication, while destroying Intellectual Property as we know it.

What is actually achieved by publishing anonymous texts promoting piracy? Surely the issue is Free and Open Source Software (FOSS) under the GPL licensing scheme which makes such sharing legal, in particular the rise of digital culture and the creative commons, influenced as it is, not by the tragi-comic “heroes of capitalism” or “free enterprise gurus” such as Bill Gates and Steve Jobs and Wozniak, but rather the cultural emergence of dyed in the wool leftists and counter-cultural icons Richard Stallman, Cory Doctorow and Eric S Raymond.

After succumbing to Microsoft propaganda and Apple-induced design masochism, are the faceless pundits behind the M&G cultural desk waking up to the latest impulse in our culture or merely resurrecting a forgotten cause?

Turning the discourse of free and open source software into a cloak and dagger debate about digital redistribution, whilst hiding behind a veil of anonymity merely reinforces the stereotype of the pirate or “hacker”. Remember those unsavoury types conjured up by the new media during the eighties? Computer libertarians and cyber-anarchists who refused to buy into legally dubious EULAS, blatantly unfair Non-Disclosure Agreements (NDAs) and fringe Intellectual Property permits were all too often cast as law-breaking hooligans who merely wanted to steal other people’s property.

As I vainly attempted to explain in my 1991 article published by South, “Technology has outstripped notions of private property and computer software confronts us with a moral dilemma: how do we treat property which has no physical form and which can be infinitely reproduced?” In any event anarchists (as well as libertarians) would seek a society based upon voluntary aid, mutual benefit, community cooperation and non-aggression, as opposed to the violent self-serving and naked aggression inherent to capitalism and its changeling herald, piracy.

This kind of rhetoric was greeted by Goldstuck and others as if I was talking down from the Moon, demanding free space-dust for a lunatic minority. It is therefore exceedingly ironic and poetic justice that the person going by the pseudonym Anon P Rate should start by questioning the very label which has been attached to the act of piracy: “Call me whatever name you want. I’m doing it all in the name of digital redistribution.”

Advocates of a realignment of property rights in the digital age have a real problem on their hands. If they advocate anything more than file-sharing they are denounced as evil commies. If they see anything more in Open Source than digital redistribution, they are politely shown the door, never to be seen again. Yet it is piracy which is at the heart of the capitalist system. The urge to appropriate and privatize virtual as well as non-virtual assets, whether by repurposing content, appropriating code or feeding off electrical energy circuits, satisfies our libidinal desire for personal power as well as greater control and wealth. In short avariciousness. This is surely the very essence of the artificial freedom behind capitalist discourse and the simulacra of property rights?

It is an anarchist understatement to say like Bakunin: All property is theft. Yet this is precisely what property represents at the end of the day. So much of who we are as a species is governed by property and our lack of it. Without property law we would all be left in a brutish jungle in which might makes right or would we simply turn into permanent daytrippers in a pirate utopia? Or better yet, why not true communism in a world in which labour is freed up by a work-force of robotic (and inherently digital) servants?

When what’s yours becomes mine and who we are in terms of property breaks down, who gets to differentiate where You and I begin and end? How is the social contract informed by the evolving public domain and what is often referred to as the “tragedy of the commons”? It is far wiser to explore the limits of our online community and its shapeshifting social mores caused by the Internet’s nuanced cultural boundaries on our own terms, than to import the empty rhetoric of the newswires.

If the author/s had bothered to do their homework they would at least distinguish between appropriation and outright theft, free as in freedom and free as in beer. But shiver me timbers, there seems to be a whiff of pirate outlaw in the air, a stench which is remarkable considering all the years which have passed since I first wrote about software piracy.

Whether in terms of the increasingly popular GPL3, BSD & CC license schemes or our altered concepts of the public domain and intellectual commons which inform the new resources and consciousness of our age, or by as yet indeterminate and contrived means still waiting to be discovered, the truth deserves to be told.

How for instance does one distinguish between what Lawrence Lessig refers to as a rivelrous resource and a non-rivelrous one? Is rivalry something which is culturally innate along with the need to compete? Or are we sharing because we sense, perhaps at the very back of our minds, that competition is no longer important in an age of infinite reproduction and instant duplication?

When I entered the Weekly Mail newsroom back in 1992, it was with a wild story about a magical duplicating device called the personal computer.

“The twentieth century has brought with it a new type of criminal, the software pirate. Let us consider this high-tech animal,” began the spiked piece, which Goldstuck now reckons was “rejected because it was not good enough.”

I could just as easily rock Goldstuck’s world view today with a true but fantastical essay on the biological printer. A novel device which is capable of “printing” human organs from DNA. In all likelihood, I would again be shown the door, not because Goldstuck is evil, but because in today’s information age, the vast majority of well-meaning individuals like him choose to remain ignorant.

I therefore challenge the Mail and Guardian and its current technology writers to have the balls to stand up and be counted. Hiding behind a /nom de plume/ in this day and age, whether for scientific or intellectual curiosity is not only cowardly, it is an insult to those who have had the grace to step forward in the interests of humanity without fear of the repercussions.