THREE decades of online communication, and an ongoing electronic struggle and yet our country South Africa, is desperately lagging behind the West when it comes to the dissemination of knowledge and information technology.
Compounding this problem is neo-colonialism, hegemony, the ‘loudhailer on steroids’ issuing forth from Northern Countries, dominating the wires and fibre optic cables and literally flooding our computer screens with trivia about an emerging global culture, one which to paraphrase Brian Eno, “is incomplete without Africa”.
Billed as the “first ever conference about centering marginalized knowledge online”, Whose Knowledge decolonizing the Internet“ is a pre-conference in the runup to this years Wikimania, which is being held in Cape Town later this week.
“51% of the world is online today,” say the organisers “but the Internet doesn’t represent our diversity.”
“The knowledge of marginalized communities is the knowledge of the majority of the world. Yet most online public knowledge still skews towards white, male, and global North knowledge. It is a hidden crisis of our times.”
The organisers plan to “convene marginalized community organizers, technologists, scholars, artists, and Wikimedians in the first conference of its kind.”
“The change we hope to create: With these newly created alliances and networks, we will work together towards more diversity and inclusion in the experience of internet design, architecture, content, and governance. We intend to dramatically change the way the internet represents the majority of the world.”
ONE month ago, the controversial FPB amendment bill was passed by South Africa’s Parliament. It came as a major blow to online content providers battling prior restraint and other apartheid-era laws from a previous period of newsroom censorship, and will ostensibly turn ISPs into cops, tasked with enforcing FPB content classification, and in some instances, even blocking sites.
If it isn’t nipples and journalists that interest the authorities, then it is Hollywood’s copyright regime and our own country’s fair use/fair dealing laws which seemingly protect creators of content.
A related piece of legislation, the copyright law amendment bill, as it stands contradicts public rights protections and seeks to impose institutional copyright on behalf of collecting agencies, even in areas where a permissive licensing system may already be in place. There is a well-funded lobby promoting copyright restrictions and classification, that also wants to remove fair use wording and any public domain permissions. Currently there are not enough checks and balances shoring up legal defenses against prior restraint while promoting freedom of speech, innovation and the reuse of content via permissive licensing.
The anti-piracy lobby group SAFACT has announced plans to block online sites. Opening the door to politicians who may also want to block sites and target publishers with which they disagree. The vocal religious lobby routinely rails against what they perceive to be the “anything goes society” as do those from the ‘moral majority’ who view porn as the “work of the devil”.
Conservative and Far Left campaigns against porn, hate speech and other ‘social evils’, have invariably resulted in the loss of fundamental freedoms. Acting as a cover for those who seek to limit criticism and public opinion.
The threat of holding ISPS and publishers responsible for users comments was enough to shut down many discus comments sites when the FPB amendment was first announced, effectively destroying the evolution of online letters to the editor and further eroding what freedom remains on the Internet. The emergence of overly broad anti-hate speech legislation hasn’t helped matters either.
The controversy surrounding the X18 age restriction of local film The Wound, the first time a local film has received such a rating in recent memory, is another example of how the FPB will play itself out.
We’ve written about the many problems presented by the FPB and its draconian plans, chief of which is censorship of online content and the erosion of communications and press freedoms guaranteed by our Bill of Rights. Thus the information freedom subsumed under article 16 freedom of expression, and the right to not have the privacy of our communications infringed, under article 14 privacy rights. All drafted following a period in which apartheid censors had gone overboard in their quest to purify political discourse.
You can read some of these articles here:
There is still time to stop the FPB amendment, (and canvass parliament on the Copyright Bill.)
“First, the president can refuse to sign it and send it back to the National Assembly on the point that he thinks it is unconstitutional, or constitutionally problematic. If that doesn’t happen, any MP can ask the Constitutional Court to review it on the point that the amendment is unconstitutional. Finally if it is passed into law, a private citizen or other body could potentially take up legal suit to get the now Act declared unconstitutional.”
DAY 85 October 24 The paralegal mediator calls me back, apparently the landlord wants me to pay for the infrastructure upgrade at his own building. I must spend money. I explain my compromise solution, it entails getting Telkom to wire a cable from their pole along the same route as the ubiquitous DSTV system, whose cabling is all over the place, giving the lie to the purported desire to maintain the building’s aesthetics.
In my humble opinion, the Telco should have at least done its job in the move Dept, by alerting all parties concerned and sending at very least a pro forma letter explaining its position on providing services to its clients. The property owner’s attempt to restrict choice in service provider and thus also to troll the installation of same into my own account are unlawful to say the least. Our country has a Bill of Rights guaranteeing free and unhindered communication. There is an End User Services Charter, a communications regulator ICASA and dare one say an urgent need to draft consumer protections and building codes for private communications, that aren’t merely a rehash of how big business view their clients as cash cows, and thus a road to servitude and vasselship?
The much vaunted Cell C “Free Whatsapp” deal turns out to be phony. I go back to the store to get a copy of the advertising material, yes there are terms and conditions, in minuscule 5 point type on the flyer, it appears the ‘free deal’ was initially for only 600mb, but in the infinite magnanimity of the corporation, the bundle expires every month and must thus be renewed monthly. It appears my whatsapp messages have also been frozen for nearly a month. I recharge once again and notice that some digital signage flashes on my smartphone (read dumb trick) screen for about half a minute, supposedly explaining this phenomena. The promotion is nothing more than an advertising stunt to get customers to switch to a Cell C SIM and is pretty much in the same league as the Yemeni immigrant charging R5.50 for a R5 Vodacom voucher.
DAY 88 October 27 The government announces it is selling its stake in Telkom. Does this mean the end of the copper-cable monopoly? Miraculously I find that a Virgin Mobile Sim provides free wifi and free Virgin to Virgin calls if you simply recharge
once month every five days. A far better bonus deal in theory, than the rigmarole of Cell C. Meanwhile I tune in my cellphone radio to catch some of the news. The SOE deal will Rob Peter to Pay Paul. ESKOM debt is big enough to swallow large portions of the nation’s future wealth, in return, a highly inefficient energy behemoth will guarantee that we ramp up CO2 emissions. That nuclear seems to be off the table for now is small consolation. I am still without access to popular sites: Hackaday, Youtube, Amazon, Daily Maverick.
DAY 92 November 2, 2017 surprise surprise, Almost 100 Days after I requested to move my landline from Woodstock to Muizenburg, the telephone line is now operational. I have been given a new telephone number. The bearded Telkom technician has finally installed the copper line via the conduit as he was supposed to, without the help of religious texts and sans the elaborate detour created by the intervention of the electrician from Zim who no longer works for the landlord. All it took was a manly meeting between the landlord and the technician to arrive at an acceptable brief. Then a bit of prodding by myself after the technician proposed several unacceptable “gippo options” before finally plumbing the conduit, hauling the line and actually doing his job without taking a break for daily religious victuals.
A bit of a mountain really created out of a molehill and no need to invest further money building infrastructure to drive spend, than what is absolutely necessary. A big lesson here is that gaining legal consent and navigating cultural differences in the new South Africa is a total pain in the %^&* , and too much delegation can ruin management if all that happens is that unnecessary work and extra spend is being generated. On the down side, I am still without Internet access following the billing debacle and both corporates need to still be tackled in order to reverse the damage of a three month drama. Significantly, Telkom have simply taken over my DSL
Telkom have not bothered to provide any details such as logon information for their compulsory ADSL services. I am expected to ferret out the password to access my data on the plan I never ordered. I am expected to provide my own modem and my own telephone in what can only be described as an obscene plan to extract rental from my bank account. If this is socialism, don’t kill yourself searching for the last communist in the country.
DAY 94 November 4. I am finally online, courtesy of Web Africa, whose free 1Gb + 1Gb account is saving my weekend. I am strangely emotional and overwhelmed by having access to the World Wide Web and sans the Internet Cafe Taxi. I try to get back to just surfing without bothering with the basics of email and social media. It is Youtube which has been most absent in these past months.
DAY 99 November 7 A lady with an eerie creaky voice calls from Telkom to tell me that the charges for previous two months have been reversed. I could swear the other irate Tannie is her sister. She probably gargles with Klippies in the morning. I have yet to recoup the money lost to MWEEB, although a part credit for line rental for October has now been generated. A silky smooth voice in MWEEB accounts dept, confirms the problem. I pen yet another email explaining that since the line reverted to Telkom in September, the credit note should be for two months, in addition, since I have had no means of accessing data without a line for three months, the payments for three months should be reversed in total. I duly begin to fill out a complaint form provided by ICASA. There is a glimmer of hope and it is the abundance of fibre options coming our way, see here. If only the operators could figure out how to provide ‘voice and data’ plans to once and for all end the insanity of two communications bills, the fiction of DSL line rental.
DAY 106 November 16 I relog a dispute for the fifth time, after Telkom short-changes me. The credit is less than one month billing. The company appears to have cut my voice services after a request for my DSL to be ported to another service provider. I also fill out a complaint form for the Consumer Complaints Commission in regard to MWEEB.
DAY 110 November 20 I finally have full refund and my Telkom account shows a positive balance. Still no voice service. I log a fault. The entity has also sent me the ‘cancellation of services’ form which should have been emailed to begin with. Somebody needs to explain to the mandarins in charge they need a better “move” protocol.
DAY 117 November 27 And Several fault logs later, I finally have Internet and Voice service. The “bureau” (SOB) let’s not call it an enterprise (SOE), dispensed a technician from hell. Yes, Black Homer Simpson arrived, gave a good impression of a busy signal and then proceeded to disconnect my Internet Circuit (at the mini-exchange) and knock off work. After several complaints later, his young protégé, is back, for the third time. It literally took him the entire week to “trace” the fault, an organic process of touchy feely, elimination by error and error, and startling in its lack of certification and testing. Case example of having all the gear including the jacket, but you don’t know exactly what is positive and negative. All the time the telco bureau sending chummy SMS from invisible operators in Tswane, asking me to rate their service. Ticket was opened and closed several times, and the outsourced buffoon even had the nerve to try to persuade me that I had service over the weekend. Science Rating: Zero. And no, I won’t be recommending Telkom to my friends and family.
IT WAS in 1995 that I returned from self-imposed exile and America’s West Coast. Having launched what would be the very first online act of mass civil disobedience against John Major’s Criminal Justice Bill the previous year. The Distributed Denial of Service (DDoS) attacks against Whitehall were launched from a techno party at the 181 Club in San Francisco, followed by a landmark Digital Be-In ‘CyberSafari’ videoconferencing event, linking the continent of North America with Africa — that I embarked on a series of public happenings in South Africa, culminating in several inaugural cyber-rights events at the iCafe in Long St, Cape Town.
A photograph from the period shows me at a terminal, wearing a Mondo 2000 t-shirt, at the very first NetDemocracy event in the country hosted by Nodi Murphy and Stephen Garrett. A simple information activist, participating in an online Internet Relay Chat (IRC) chat with Minister Pallo Jordan alongside 120 citizens from around the country, all of whom happened to be online.
￼“Internet Cafe expert gets in touch with Posts and Telecommunications Ministers Dr Pallo Jordan via the Internet relay chat held in the city yesterday. More than 120 people from around the country asked him questions about the Green Paper on telecommunications policies.” opined the Cape Times.
Jordan would later the same day, accept a complimentary copy of the Virtual Community, Homesteading on the Electronic Frontier by Howard Rheingold, as I proceeded to also fax Minister Jay Naidoo, with demands that we resist the urge to simply usher in the Internet Age, but also take proactive steps to protect user’s rights online, rights such as the right to privacy, right to not have one’s communication intercepted, right to receive and impart communication electronically, right to cryptography and pretty good privacy (PGP), the right to download and upload information, the right to copy data and so on.
Successive events the following year in 1996 held during the constitution-building process, charted new territory and included a CuSeeMe video-call with columnist and digital rights advocate Douglas Rushkoff from New York, a public IRC session with the editor of Future Sex Magazine, Lisa Palac , and a controversial session on Martinican poet Aimé Césaire, Léopold Sédar Senghor and Léon Damas entitled ‘Negritude on the Net’, and other such interventions.
The somewhat crude outcome wasn’t exactly what we all intended, in the end, there was unfortunately, no single article in our constitution entitled ‘Internet Rights’, but instead, as fate would have it, the authors of the Constitution and our Bill of Rights achieved the same. By engaging in public consultation, by utilising the very same tools we, as net activists, were advocating, the constituent assembly effected an astonished feat and made good on many promises. Eventually including a suite of astonishing information and communication rights, many of them applicable and ready-to-wear or subsumed under other legal headings.
The historically important result was noted by Wired Magazine, who reported on the landmark inclusion of information and other rights. A first for any country on the planet. Thus, article 14 ‘Right to Privacy’, has the crucial right to not have the privacy of our communications infringed.
Article 16 Freedom of Expression aside from granting individuals the freedom to blog, tweet and produce electronic media, contains the all important ‘freedom to receive or impart information or ideas;’
Article 32 Access to Information, guarantees ‘access to information held by the state, or required for the exercise or protection of any rights.’
These three foundational rights or ‘spheres of responsibility’, when read together form an important guarantee of online freedoms and cyber-liberties, and must be seen against the backdrop of the constitution’s formation, as a secular document enshrining civil liberties for the digital age. One can thus be proud of the 21st century wording, which is both progressive and future proof.
For our nation’s founder Nelson Mandela, it was a major milestone in constitution building and alongside the rise of the Internet as the World Wide Web, which had came in the aftermath of our very first democratic election, we had collectively opened the doors of technological progress.
South African’s can be grateful we all have a digital-ready constitution and that the country has one of the most strident and open information provisions anywhere on the globe. Municipal, provincial and national government all actively share information online with voters and taxpayers.
Our taxes are now accessed via an online portal operated by the South African Revenue Service (SARS), as are other government services. A public campaign to provide free and open access to internet and data has been gaining steam, and many metros are now providing wifi for gratis.
Despite the enormous progress and despite such guarantees, as I write this, there are still several current legislative threats before the House of Assembly, pitted against our hard-won freedoms, and include the Film & Publications Amendment Bill, the Copyright Amendment Bill and Cybercrime Bill, all introduced by the ruling party, and all containing wording, stratagems and concepts which run counter to the spirit of the constitution and the nation’s legacy of cyber rights.
It thus remains up to the generation of today, the millennials and especially the new crop of digital activists and open access cadres, to defend online freedom and African cyberspace, to make good on the many promises contained in South Africa’s Constitution.
SOUTH AFRICANS won a massive victory for communications freedom when we saw the inclusion of the right 16(1)(b) which practically squashed anti-piracy litigation of the kind, contemplated by MIH Multichoice for nearly twenty years. Attempts to prohibit users from sharing information have met with limited success.
The company released a statement last week, attacking the lawfulness of receiving information via data-over-IP:
“MultiChoice will be appointing a Cyber Piracy Investigator who will aggressively go after South Africans who illegally download and share local and international TV content.” The group has already posted job notices for a cyber-snoop who would aggressively monitor Internet users, without a court order.
The issue here isn’t the sale of illicit copies by commercial interlopers, it is a clampdown on the general right of access to information by users in the form of data-over-IP.
Access to Information over the Internet is a right guaranteed by our constitution.
Article 16, is a constitutional covenant (not a privilege), enabling media and press freedom which contains the all important (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. Inalienable rights that are of increasing importance so far as the Internet and access to information is concerned.
Information rights, enacted during Nelson Mandela’s Constituent Assembly, make South Africa one of the most Internet-enabled and digitally-friendly countries. The Bill of Rights is very progressive (some might say radical), on issues related to civil rights, personal freedom and digital access. At least this was the intention so far as the founders of the country’s Bill of Rights were concerned.
During the tumultuous and important period of the drafting of our nation’s Bill of Rights during 1995 and 1996, I actively campaigned for lawmakers to put the right “to receive and impart information, as well as ideas”, i.e. communications freedom and cognitive liberty, into our constitution. The campaign built upon earlier civil rights campaigns, both off-and-online.
I had just returned from the San Francisco Bay Area, having launched a landmark, online campaign of electronic civil disobedience (ECD). The campaign against the Criminal Justice Bill (a nasty piece of UK legislation outlawing outdoor dance festivals and music with a repetitive beat) which banned open-air raves as they were called, had met with limited success, but set the stage for further ECD campaigns, and featured in a digital history timeline of the Internet, as a first experiment with the electronic medium, so far as activism (and hacktivism) was concerned.
Communications Freedom and the Right to Privacy were thus at the top of our bucket lists, as local hactivists and netheads such as Stephen Garrett and others, (I include myself here), openly canvassed Jay Naidoo, and then Minister of Post and Telecommunications, Pallo Jordan and others. Thus several events on Net Rights issues were held at South Africa’s very first Internet Cafe in Long St, Cape Town.
The inaugural Net Democracy event was soon followed by sessions on Net Rights and other Digital topics.
The papers of the day record: “An Internet Relay Chat (IRC) the first between a cabinet minister and the public, took place in the City today” …”More than 120 people from around the country, asked [the Minister] questions about the Green Paper on Telecommunications.”
The atmosphere of tolerance and openness two decades ago, contrasts strongly with the secrecy and paranoia of the government of today. To compound the problem of the erosion of net freedom, is the manner in which corporations are now taking centre stage of the digital rights debate in our country.
The latest move by Multichoice is really an affront against all digital rights activists, it is nothing less than an attempt to alienate the principle of information freedom and sharing of information, delineated as the ‘right to receive and impart information’, enshrined in our Bill of Rights. In the process casting users as “thieves” in a victimless crime where the owner of copyrighted material is left, still in possession of property, but without a potential royalty payment.
The current Cybercrime Bill before parliament, (which I have already written about in an Op Ed published by the Cape Times), violates key features of the constitution, including the right to due process. The ruling party currently does not have the necessary 2/3 majority needed to pass such draconian legislation, and even if it could there are several checks and balances so far as this process is concerned. The only way that one could ever reasonably enforce the kind of cybercrime laws presently contemplated under several new pieces of Apartheid-style Information legislation is by redrafting the Bill of Rights, in particular the clause referring to which rights are considered derogable (non-absolute) and which are not!*
Multichoice, a pay-television corporation which gained prominence, having emerged with a monopoly concession from the PW Botha regime, now seeks to pre-empt the legislation currently being debated in our National Assembly. Demonstrating open contempt for the legislature, the company is steaming ahead with an extra-judicial redrafting of the Bill of Rights, in the corporation’s own image. This is so it can maintain a monopoly over information in South Africa. Earning enormous profits by denying citizens access to information freely available online.
Most national and international television networks are freely available on the Internet. Al Jazeera for instance, streams over the Internet for gratis. Multichoice however, packages these free channels as part of its bouquet of services, for which users pay a fee.
The company has already begun to spin the story, as a first step to “monitoring of torrent sites”, all in keeping with copyright law, but this ignores the fact that many people use torrents to download free and open-source software.
In terms of the litigation and aggressive policing contemplated by Multichoice, simply watching Youtube Video and other online activities, could result in jail-sentences. Educational videos and streaming of documentaries will carry penalties which penalise students and those least able to afford education.
The torrenting, downloading and streaming of information will become grounds for suspicion of illegal activity. Merely using a computer could have unintended consequences so far as monitoring and enforcement is concerned.
The Multichoice concession, created during the apartheid regime, runs against the principle of freeness and inclusion of citizens needs so far as access to information and the Bill of Rights is concerned. Instead of sacrificing information rights to the corporation, the concession should be abolished in favour of flat-rate billing for data.
*NOTE: Non-Derogable rights are those which are considered “peremptory norms” under international law and thus absolute, they need to be distinguished from other derogable rights, which although no less important, since they are inalienable and cannot be taken away, are not considered absolute and thus are open to judicial interpretation. The degree to which rights in our Constitution are open to such interpretation is the basis for considerable debate amongst scholars.
THIS YEAR has been a disastrous year for cyber-liberties. South Africans have seen a range of proposed laws rolled out by legislators, each one eroding digital rights which include access to information, freedom of communication, the right to privacy and online speech.
First there was the draft ‘Online Regulation Policy of The Film and Publication’s Board’ (FPB Bill), labelled ‘Africa’s worst new Internet censorship law” and which has resulted in a storm of protest. This was quickly followed by a Copyright Amendment Bill (resale royalties bill) which fails to take into account permissive licensing under the Creative Commons. (There will be no possibility of releasing material under a Copyleft license, since such schemes are by deemed to be an infringement of compulsory licensing under Copyright law.)
Now the Cybercrimes and Cybersecurity Bill, ostensibly aimed at plugging online security breaches, while thwarting criminals — perhaps the worst piece of anti-speech law to come our way yet. Far from being an answer to cybercrime, the draconian bill views the mere intention to use the Internet, as grounds for suspicion, in an Orwellian world described by author Cory Doctorow, as a ‘war against general purpose computing’.
That’s right, merely using a computer, could lead to a chain of events, mapped out by legislators, which includes the end of due process and the annulment of fair use rights and other freedoms. As such, the Cybercrime Bill as it stands, already contradicts our constitution and the previous Copyright Amendment Bill, which in turn, is further complicated by the FPB bill, and when viewed as a suite of legislation, the result is rather scary.
Cybercrimes, such as merely downloading or copying a Hollywood ‘fliek’, could result in forced rendition to a foreign country as a “terror suspect”. The latest Bill, drafted by securocrats, attorneys and lobbyists, acting at the behest of Hollywood, creates a series of unlawful acts, including ‘appropriation of property under copyright’ and deals with the consequences, as if Bruce Willis and Arnold Schwarzenegger were the ones implementing the legislation.
Where the AFB uses the threat of child pornography to advocate for less online freedom, the cybercrime bill uses the threat of terrorism and espionage to motivate for a world in which merely owning a computer, could lead to a change in the legal principle, ‘innocent until proven guilty’. Interception of your data and communication by government agencies acting without a court order, becomes the norm, rather than the exception in the bill drafted by the Department of Justice and Constitutional Development.
Each one of these proposals, severely erodes rights and freedoms guaranteed by our constitution. Without sufficient checks and balances, safeguarding constitutional rights, a default override in favour of citizen’s rights, the laws represent a clear and present danger to freedom.
On January 18, 2012, a series of coordinated protests occurred on the Internet. The online demonstrations against the United State’s ‘Stop Online Piracy Act’ (SOPA), saw hundreds of web-sites, including Wikipedia voluntarily blacked out, sending a clear signal to the American Congress and resulted in a major victory against Hollywood, in a campaign lead by hacktivists and the late Aaron Swartz.
Like the earlier Digital Millennium Copyright Act (DMCA) which sought to control the reproduction of data, SOPA was criticised for being overly broad and too robust. It contained measures, critics said, that could cause great harm to online freedom of speech, Internet communities and net neutrality. Protesters also argued that there were insufficient safeguards in place to protect sites based upon user-generated content.
ACT NOW BEFORE IT IS TOO LATE
Interested parties wishing to comment on the Bill are invited to submit written comments to the Department of Justice and Constitutional Development on or before 30 November 2015. These can be submitted to: firstname.lastname@example.org. Submissions can also be faxed to: (012) 406 4632. For information or queries related to submissions, contact Mr S J Robbertse on: (012) 406 4770.
Published as an Op-Ed in the Cape Times 23 October 2015.
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.