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Ignore the hubris surrounding the Copyright Bill — it could transform our creative sector

David Lydall
By David Lydall
2 Nov 2022
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The Copyright Amendment Bill is broadly progressive, and important for South Africa. It will ensure writers, designers, actors and the actual creatives creating content are better paid and are competitive internationally.

“I proved that you’re wrong, and if you’re wrong I’m right…”

That’s a quote from Nick Naylor in the 2005 film Thank You for Smoking, one of many nuggets of wisdom on the power of manipulation and how PR specialists and lobbyists convince people to do things that hurt themselves, but make corporations splendidly wealthy.

Towards the end of the film, there is a particularly effective scene in which Nick, arguing against “poison” warnings on cigarette packaging, compares the harm of cigarettes to cheddar cheese — suggesting that if one was to put a warning on cigarettes, one should do the same for cheddar due to its cholesterol-increasing properties.

Notably, facts are rarely part of how Nick argues. Instead, he makes ideological arguments about “freedom” and “liberty”, and when he does use facts, he cherry-picks ones that work for his schtick, while quickly moving forward to prevent his opponents from exploring their context or investigating if they are accurate.

It is no surprise he would do this; the moment his arguments come under any educated investigation, they would fall apart. So instead, Nick works hard to make sure the people he’s talking to have low access to information. The consumer can’t tell which facts are real and which are “alternative”, and thus they have to rely on what “feels” more true. This is exactly what Nick wants, because when a consumer thinks everyone lies he, the liar, is at an advantage.

While Thank You for Smoking is a masterclass in showing how what I call “the Liar’s Advantage” works, it is probably one of the most common tactics used by moneyed manipulators. Recent examples would be the lines used by fossil-fuel-funded climate deniers, or politicians trying to deflect from corruption allegations.

One example of this you’ve probably also been on the receiving end of, but not necessarily been aware of, is recent debates regarding the Copyright Amendment Bill, and more specifically its Fair Use clause.

To those involved in fighting for this bill, it has been deeply frustrating to see some of the coverage, with media headlines like “Creatives, parties divided over passage of the Copyright Amendment Bill”, a framing rather reminiscent of the “experts divided over global warming” headlines paid for by merchants of doubt trying to prevent climate change regulation.

Rather than diving into what the bill actually does, much of the coverage relies on “this side says it’s good, and this side says it’s bad”, with at best one or two arguments from each that are un-interrogated.

The bill itself is broadly progressive and important for South Africa. It contains many provisions which regulate the creative sector to ensure we’re not paying more than people in developed nations do for content or educational materials, while at the same time ensuring writers, designers, actors and the actual creatives creating content are better paid and are competitive internationally.



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A big part of that is Fair Use, which means that subject to important restrictions and conditions on duration, type etc, individuals can copy short sections of others’ content, and then add to it. A really good example of this is a YouTube video.

In South Africa (unlike in the US) Fair Use is not possible. Because we don’t have the principle captured in legislation, the cost of a “quick and easy” YouTube clip using other people’s footage means the producer could be guilty of copyright infringement, or the video be taken down.

But that’s not the worst of it.

If you wanted to insert clips from other sources, like eNCA or SABC, you’d have to pay for the content. But in the US, in terms of Fair Use, you wouldn’t. That’s the tragedy: While South Africans have to pay Americans to use their content, they can use South African content for free.

So the system is not only unjust and disadvantages South Africans; it is also fundamentally unfair and creates a two-tiered — almost colonial — system: one for developed well-off countries like the US, and one for less developed nations like South Africa.

The Copyright Amendment Bill does a lot more than introduce Fair Use, and adds a number of other important provisions and protection for South African creatives like:

  • Requiring royalties for performers (once again in line with international best practice);

  • Regulating collecting societies that infamously pay their executives and board members well, but not the artists who made the content; and

  • Preventing monopolistic IP exploitation by international holders like Disney, Warner Bros. and Pearson.


But don’t take my word for it: read the bill or plain language explainers of it. See for yourself how this bill could fundamentally transform our creative sector to allow our creatives to earn more and create more jobs while preventing our consumers from being ripped off by international mega-corporations.

Or, to borrow from Nick Naylor one more time: don’t let the merchants of doubt paid for by those currently exploiting you control the narrative. And don’t be duped by the “he said, she said”. There is an easy way to disarm the Liar’s Advantage — and that’s to read the bill. DM

 

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