Wikimedia South Africa/Copyright Amendment Bill
This page documents Wikimedia South Africa's efforts to amend the South African Copyright Act (old 1978 act|new 2019 bill). The effort was initially, but always primarily, focused on getting Freedom of Panorama (ZA) included but later expanded to include support for Fair Use. This effort was driven and conducted on behalf of Wikimedia ZA by Douglas Scott.
The 2019 bill (in section 14 which amends section 15 of the 1978 act) makes an allowance for Freedom of Panorama when it states:
Freedom of Panorama
Wikimedia South Africa first got involved in our copyright advocacy efforts following the chapter's experience with organising Wiki Loves Monuments 2012 (WLM 2012). Initially it was hoped by the WLM 2012 organisers that we could accept photographs of both old and recently build monuments. Thereby allowing us to record both colonial era cultural heritage as well as more recent monuments to important events and people such as those celebrating the struggle against apartheid. However, whilst there were no problems with accepting photographs of colonial era monuments, it was correctly pointed out to by some of our members that we could not accept photographs of more recent public monuments. This created an unacceptable situation whereby we were prevented from covering all of South Africa's public history.
The reason for this situation was due to the South African Copyright Act's lack of clarity regarding photographing public works of art such as monuments. We recieved legal advise from Dr. Tobias Schonwetter, Director of the Intellectual Property Unit at the University of Cape Town that although the law was unclear with regards to submitting photographs of recently built public works of art if we were challenged in court it would likely be the case that we would lose. This situation played out in Sweden in 2016 proving the need to us in South Africa of a Freedom of Panorama clause to resolve the situation.
A list of media deleted or nominated for deletion from Wikipedia and Commons due to Freedom of Panorama related issues can be found here.
There were two reasons why Wikimedia South Africa supported this. The first was due to the provisions in the proposed bill that gave students fairer access to learning material in text books without having the pay very high textbook costs. In a country with South Africa's vast economic disparities and poverty levels free access to such knowledge is very much in line with the free knowledge movements goals. The second reason is that adopting fair use streamlines Wikipedia editing policies with regards to Fair Use in South Africa with international norms that rely on US fair use provisions. Understanding copyright law is already a complex process with a steep learning curve for anyone let alone an editor who just wants to edit Wikipedia and related Wikis. When this complexity is expanded to also include the very different fair dealing regulations of South Africa (for South African focused editors) this becomes vastly more complex and limiting to efforts to contribute to the free knowledge project. An example of this is in the submitting of images.
Some notable organisations actively supporting the Copyright Amendment bill:
- Wikimedia South Africa
- ReCreate South Africa (umbrella organisation)
- Blind South Africa
- Library and Information Association of SA
- Southern African Research Universities Association
Some notable organisations actively opposing the Copyright Amendment bill:
- Coalition for Effective Copyright in SA (umbrella organisation)
- Publishers Association of South Africa
- SAMRO (collecting agency)
- Dramatic, Artistic, Literary Rights Organisation (DALRO)
- Academic and Non-Fiction Authors of South Africa
- PEN Afrikaans
- Motion Picture Association (USA)
- International Intellectual Property Alliance (USA)
- F -> indicates articles or content that is For the bill
- A -> indicates articles or content that is Against the bill
- May 2012: Wiki Loves Monuments 2012 highlights the need for Freedom of Panorama. This is reinforced by similar experiences at subsequent Wiki Loves Monuments events between 2012-2015. We are prevented from accepting photograph submissions of recently built monuments, such as those about the struggle against apartheid, due to a lack of Freedom of Panorama.
- 31 October 2014: The Wikimedia South Africa Annual General Report for 2014 is published stating for the first time that the Wikimedia chapter for South Africa intends to advocate for the adoption of Freedom of Panorama in South African copyright legislation (page 23). Explicit mention is made that the right to take and share photographs under a Creative Commons license (thereby allowing their upload onto Wikimedia Commons) of national monuments and other public works of art is the reason for this decision.
- August 2015: Attended the the Internet Rights, Cultural Development and Balancing Features in SA Copyright Reform conference where Wikimedia ZA is introduced to a number of important participants in the South African copyright community broadly. Was invited to attend by Wikimedia ZA's friends at Creative Commons South Africa to discuss the need for Freedom of Panorama in South Africa.
- September 2015: Responded to a call for submissions by the Department of Trade and Industry on the Copyright Amendment bill with a submission advocating for Freedom of Panorama
- 16 September 2015: Academics (UCT IP unit and Collage of Law at American University) sends letter to Department of Trade and Industry calling for both Fair Use and "right of panorama" (Freedom of Panorama) to be included in the new and currently being drafted Copyright Bill.
- 6 December 2016: Attended the Workshop on the South African Copyright Amendment Bill in Cape Town hosted by Wits University and the University of Cape Town's Intellectual Property Unit. The workshop included presentations on the current provisions of the bill that promote various interests followed by technical discussions about how the language could be supported or improved in the upcoming legislative process. Met a number of important allies at this event including academics associated with the Program on Information Justice and Intellectual Property.
- May 2017: Mandate from South African Wikipedia community to more actively and publicly advocate for Freedom of Panorama
- The other South African language Wikipedia communities at the time were very small communities with less than 3 active editors in any one month. As such it was felt to work through the chapter to get their feed back as the most active editors in those language Wikis were senior chapter members.
Calling for government to adopt FoP & FU
- 14 June 2017: Wikimedia ZA starts mobilising in support of Freedom of Panorama in South Africa by launching a petition and page on Commons to explain the need. A Wikipedia banner add ran for at least one month visible to South African visitors to Wikipedia only. The petition gathered 730 signatures calling for Freedom of Panorama in South Africa.
- 21 July 2017: Wikimedia ZA is invited to attend the Amendment Bill Round Table on Fair Use hosted by the Mandela Institute, Google, Freedom of Expression Institute, and the American University Washington College of Law to discuss the development of the bill with as many different role-players as possible.
- 3 August 2017: Wikimedia South Africa gave a presentation to the South African parliament on need for Freedom of Panorama in the draft Copyright Amendment Bill.
- Early 2018: Freedom of Panorama added to the Bill
- 17 May 2018: ReCreate South Africa is created to advocate for Fair Use in the Copyright Amendment Bill. Wikimedia ZA is a founding supporting member of ReCreate SA.
- 19th July 2018: the session Globalizing Copyright User Rights is hosted at the Wikimania 2018 pre-conference. Hosted by Douglas Scott and Sean Flynn to discuss copyright globally, South Africa's place in it, and its relevancy to the Wikipedia/Free Knowledge movement. Democratic Alliance Ghaleb Cachalia (MP), Parliamentary Portfolio Committee on Trade and Industry, delivers keynote address. He later votes against the bill when it comes up for vote in Parliament.
- 28 October 2018: ReCreate releases a video explaining the need for Fair Use in South African Copyright law. It features the following supporters of Fair Use in South Africa:
- Drone pilots/film makers
- Wikimedia South Africa/Wikipedia editors
- Documentary film makers
- Student activists
- Intellectual Property education experts
- Freedom of expression activists
- Blind community
- Game development community
Passage of the bill
5 December 2018: Bill is passed by the house and sent to the Council of Provinces. A video and detailed account of the vote along with speeches by political parties on the justification for their vote can be seen here: https://www.re-createza.org/new-page
- Voting was as follows:
- African National Congress - voted for the bill
- Democratic Alliance - voted against the bill
- Economic Freedom Fighters - voted in for the bill
- Inkatha Freedom Party - voted against the bill
- National Freedom Party - voted for the bill
- United Democratic Movement - voted for the bill
- Freedom Front Plus - voted against the bill (the FF+ was very strongly against the bill)
- African Christian Democratic Party - voted for the bill
- Voting was as follows:
- 28 January 2019:FM 1027 Classic Business radio interview with anti-bill panelists presents a number of misconceptions about the bill and key concepts within it such as Fair Use. Repeating the narrative that the new bill will undermine property rights and was done with minimal public consolation.
- 19 March 2019: Wikimedia ZA in partnership with ReCreate host a public event with press invited to explain our position on the bill. A recorded version of this press event can be seen here.
- late March 2019: Bill is passed by the Council of Provinces and sent to the President for enactment
Waiting for Presidential signature
- 27 March 2019: A South African photographer, Pri Hollis, publishes Business Day op-ed against the bill. Alleging that the Fair Use clause will ensure that artists will have "no protection from rampant plagiarism". Repeating a common misconception about Fair Use and how it works.
- 16 April 2019: A Coalition for Effective Copyright in SA lobby group states that they will fight to prevent the President from signing the Copyright Bill into law. They argue against the Fair Use provision and state that the bill will result in the "recolonisation of our curriculum".
- 24 & 25 April 2019: F Wikimedia South Africa publishes two opinion pieces in Business Day and GroundUp calling for President Ramaphosa to sign the recently passed bill and why we support the bill.
- 10 July 2019: F ReCreate Policy Fellow, Nontando Tusi, writes an op-ed in Business Day arguing in support of the bill and reiterating calls for the President to sign the bill.
- 15 August 2019: A Prof Keyan Tomaselli (University of Johannesburg) writes op-ed arguing that the "Copyright bill means expropriating creativity without compensation." He states that he is against signing the bill as he feels it would rob people of their "sweat of the brow" rights to derive an income from their work. This is a common misconception about Fair Use and how it works that the anti-bill lobby tries to spread so as to scuttle the bill.
- 31 August 2019: A DALRO and other anti-bill groups host a conference to talk about why they are against the bill. Where Carlo Scollo-Lavizzari (Lenz Caemmerer) stated that "if enacted, the fair use provisions of the Bill would run counter to international copyright norms."
- 29 January 2020: F Wikimedia ZA publishes an open letter to President Ramaphosa calling for him to sign the bill (see letter to the right).
- January 2020: A United States Trade Representative (USTR) states that South African adoption of the bill would threaten South Africa's access to the Generalised System of Preferences (GSP) trade agreement. Concerns over respect for property rights is expressed due to, amoungst other things, adopt Fair Use (this is ironic given that the US invented and currently uses the legal concept). This happend after the International Intellectual Property Alliance submitted a petition to the USTR to pressure the SA government. The Wikimedia Foundation along with others advocates for South Africa as the bill will not violate property rights.
- 26 May 2020: F an account of the US film industry lobby comes out showing how the US film industry has coordinated efforts to put pressure on the SA government to drop the bill between December 2018 to November 2019. It includes their efforts to lobby the USA Trade Representative to pressure the SA government.
- 20 March 2020: A European Union Representative in South Africa (run by the EEAS) publishes letter attacking the Copyright Amendment bill and accusing it of undermining property rights. The EU takes aim at the proposed adoption of Fair Use in the bill, particularily at the bills use of having both a Fair Use provision in addition to a list of copyright exceptions in the original Fair Dealing of the old act. Libraries and Wikimedia chapters in the EU write counter letters in support of the bill and asking the EU to respect South Africa's right to pass its own legislation. EU replies with a non-committal response.
- 7 June 2020: Blind South Africa takes the Presidency to court for violating their constitutional rights to access to information by not signing the bill.
- 8 June 2020: A Noted anti-bill advocate and South African legal scholar, Sadulla Karjiker, writes op-ed criticising Blind SA's court action by calling it "political expediency".
- 10 June 2020: F Blind SA responds to Karjiker's article fiercely criticizing him for trying to reduce or belittle the right of blind people to understand and advocate for their own rights.
Sent back to Parliament
- 19 June 2020: Blind SA was informed that the "President had now decided to refer the CAB to Parliament on the grounds of certain specific constitutional reasons." Reasons cited include:
- "Incorrect tagging of the Bill;"
- "Retrospective and arbitrary deprivations of property;"
- "Insufficient public hearing on Fair Use;"
- "Impermissible delegation of legislative power to the Minister; and"
- "Copyright exceptions and limitations that are in conflict with WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty."
- This could mean that the existing bill would either be further amended by the 27th Parliament or it might be completely redrafted from scratch.
- 22 June 2020: F Infojustic.org summarises the president's decision and reasons. It quotes Prof Sean Flynn (who is associated with Infojustice) that the decision to send back the bill due to "alleged issue with compliance of the limitations and exceptions with the international “3-step test” in the Berne Convention and WTO Agreement on Trade Related Aspects of Intellectual Property Rights is puzzling" given how similar it is to exceptions in other countries that comply with the aforementioned treaties.
- 24 June 2020: F Blind SA, Recreate ZA, SADTU, African Guild of Actors, and the Independent Beneficiaries release a open letter published in the Mail & Guardian jointly calling on the president to support the Copyright Amendment bill. They make a social-historical argument for signing the bill focusing on its redistributive benefits in a poor unequal society.
- 2 July 2020: A Swiss based advocate André Myburgh publishes op-ed in Mail & Guardian critical of the bill and supportive of the Presients send back of the bill to P.
- 7 July 2020: A American lobbyist Neil Turkewitz publishes an op-ed in the Daily Maverick critical of the bill thereby vocalising the Copyright Alliance's supportive point of view on the President's decision send the bill back to Parliament. 
- 9 July 2020: F An open letter from Chicco Twala accusing the music collecting societies of robbing musicians. Thereby highlighting the need for the Performers Protection bill.
At 9:00 on the 18 August 2020 a hearing was held by the South African Parliament on the bill. Introduction to hearing given by Minister of Trade and Industry Ebrahim Patel. In summary, the minister was supportive of the bill and Fair Use in particular but did suggest that the retroactivity clause regarding the rights of creators to get income from their work be reviewed as it might not be constitutional.
Objections raised with the bill and discussed by the minister were:
- Incorrect tagging of the bill - minister advised that the bills do not meet the test of 'substantiality' but section 75 tagging has a low risk that specific provisions of bill cover cultural matters or trade thereby making it incorrectly tagged. If this is the case it will delay the finalising of the bill. Retagging recommended by minister.
- Deprivation of property - exploitation of creators in the past through unfair contracts led to retrospective rights for creators of content. Government legal advisors concluded that alternative mechanisms be considered to address the issue of creator exploitation.
- Concerns that substantial discretionary powers are vested in the minister which might make it unconstitutional.
- Public participation - minister talks about fair using vs fair dealing, seems supportive of fair use. This Fair Use issue seems to be the heart of the bill and the public participation challenge as many stake holders expressed opinions for or against it. Minister makes clear that the bill has a Fair Use foundation but also has a Fair Dealing list to make clearer what is exempt from copyright protection. Two year public participation held which meant it was not necessary to reconduct the public participation process. However two constitutional cases (Doctors for Life) highlighted the need get more public participation.
- Copyright exceptions - objections that the exceptions are too broad. Legal view that three-step-test determined that exceptions were not too broad. Exemptions are reasonable and justifiable and not in breach of international treaties.
- International treaty implications - bill sent back to Parliament by President for reconsideration of treaty implications. Opinion of Minister is that the bill is aligned with treaty obligations. But Parliament still encouraged to reconsider
Bill may not pass constitutional muster and this referral back to Parliament is to ensure that the bill is constitutional.
- 24 August 2020: F Justus Dreyling from Wikimedia DE publishes an article in Germany about the South African Copyright Act. Summarising why it is important and our experience so far.
- 24 August 2020: A Secretary for the CCSA, Chola Makgamathe talks to Cape Talk Radio about why they want the bill to go back to Parliament and why they are against the bill. Both the interviewer (Africa Melane) and Makgamathe state that the "South Africans are against Fair Use". Recreate sends a complaint about this as bias and is invited to an interview on 25 August.
- 25 August 2020: F Tebogo gave an interview on behalf of Recreate supporting the view and disputing the points raised by Makgamathe in the previous interview.
- 25 August 2020: A Narrow Basis for a Decision with Wide Implications - this blog post for the Library Policy advocacy group neatly summarizses the governments positions on the Copyright Bill in 2020.
- August 2020: F Parliament can uphold the Constitution by passing the Copyright Amendment Bill — again, opinion piece by Sanya Samtani supportive of the bill. Discusses its positive impact on students, its impact on property rights, and user rights.
- 3 November 2020: A Ebrahim Patel turns a deaf ear to copyright alarm bells, opinion piece by Glen Gillis, CEO of South African animation firm Sea Monster that is critical of the bill arguing that it will have a negative impact on the creative industry by undermining property rights. Repeats many misconceptions spread by the Copyright Alliance about the bills impact on copyright.
- 10 November 2020: F ReCreate South Africa hosts a webinar for teachers, learners, academics and creatives content producers on the bill and how it is beneficial for them. Attended by around 40 people.
- 10 December 2020: F Blind SA and other pro-Bill groups organise a protest march in support of the bill in Pretoria. This also includes an interview with Blind SA on SABC News on the same day.
- 12 February 2021: F Termination rights - A first step towards reparations in the creative industries, opinion piece by Adwoa Ankoma that argues in favour of the Termination Rights (currently contained within the bill) that would be held by creators of works.
- 10 March 2021: ACopyright Amendment Bill: Potential Cause For Concern For Trade Between SA And The USA by Maureen Makoko and Chiraag Maharaj of the law firm Adams & Adams. This article highlights the potential negative impact of passing the bill as it might prompt the United States government to remove South Africa from the African Growth and Opportunity Act thereby negatively impacting trade. It points out that this review of the bill follows lobbying in the United States against the South African bill by the International Intellectual Property Alliance (IIPA) who allege that the Copyright Amendment Bill and Performers' Protection Amendment Bill will "fail to "provide adequate and effective protection" of American copyrights."
- 28 March 2021: F South African Copyright Amendment Bill – Still No Progress! Denise Nicholson, a long time and very strong supporter of the bill, gives a summary on the two year long delay in the signing of the Copyright Amendment bill into law. Nicholson summarizes how the bill has been repeatedly delayed and stalled, the arguments made by its critics to stall it, and long drawn out process in parliament it is still being subjected to.
- 7 April 2021: F Challenge to the constitutionality of ‘outdated’ Copyright Act heads to court BlindSA launches a case in the high court of South Africa (Gauteng Division) to force the presidency to sign the bill into law, arguing that by not passing it into law the government is violating the Constitutional Rights of blind South Africans to access knowledge in a form accessible to them.
- 8 April 2021: F Growing up blind: Retired Judge Zak Yacoob helps challenge an archaic law, retired Constitutional Court Judge Zak Yacoob submitts an affidavit to the court in support of Blind SA’s court challenge to the government to sign the bill into law.
- 10 May 2021: A Parly committee accused of trying to rush through 'defective' copyright bill for political reasons, News24 journalist Ahmed Areff criticises the bill by quoting parties critical of the bill whilst presenting it as anti-creative without consulting or presenting views supportive of the bill. Repeats threats made by foreign interests that they will pull out investments in South Africa if the bill is passed without presenting evidence. News24 is owned by Naspers which also owns DSTV and other entities that have been against the bill as it arguably seeks to erode their monopoly over cable and streamed TV in South Africa.
- 10 May 2021: F Recreate South Africa hosts a Copyright Press Conference on the Copyright Amendment Bill. A Joint Academic Opinion of the bill is released stating the Constitutionality of the Bill and calling for it to be passed. Speakers at this Zoom webinar includes Andrew Rens, Malebakeng Forere, Faseega SolomonBen Cashdan, Sanya Samtani, Sean Flynn, and Fatima Hassan.
- 21 May 2021: The Mandela Institute hosts a webinar debate on the bill. People who spoke at the webinar include:
- Mr. Duma Nkosi, Chair of Portfolio Committee on Trade and Industry, National Parliament - explains Parliament's current concerns
- Prof. Malebakeng Forere, Associate Professor, School of Law, University of the Witwatersrand - in favour of the bill
- Prof. Sean Flynn, American University and University of Cape Town IP Unit - in favour of the bill
- Prof. Owen Dean, Professor, Stellenbosch University - critical of the bill
- Dr. Joel Baloyi, Entertainment Law & IP Management, Copyright Coalition of SA - critical of the bill
- Mr. Ben Cashdan, Filmmaker and Founder, ReCreate SA. Former advisor in Mandela presidency. - in favour of the bill
- 4 June 2021: The Portfolio Committee on Trade and Industry issues another call for written submissions on the bill. This time with reference only to clause 13 (sections 12A, 12B, 12C and 12D), clause 19 (section 19B) and clause 20 (section 19C). All submissions have to be submitted by 9 July 2021.
- 9 June 2021: F Royalties For Artists: Artists struggling to survive (eNCA News), an interview with Recreate South Africa member Jack Devnarain on the impact of a lack of sufficient copyright creator rights on actors in South Africa. Given in the context of the recent death of South African actor Shaleen Surtie-Richards which was believed to have been partly due to a lack of funds despite a long successful acting career. Jack talks about the importance of the new royalty rights that the new bill will afford artists and calls for the bill to be enacted.
- Comments by PEN Afrikaans on the Copyright Amendment Bill, No 13 of 2017 (2017-07-03), Litnet
- Wikimedia South Africa Annual General Report for 2014, pg 23
- Great Listening: Discourse on the Copyright Amendment Bill
- Copyright Amendment Bill Recorded Stream
- Lobby group urges Ramaphosa to reject Copyright Amendment Bill
- Why Wikimedia SA supports the Copyright Amendment Bill (24 April 2019), Douglas Scott
- President Ramaphosa should sign Copyright Amendment bill (25 April 2019), Douglas Scott
- DALRO Copyright Conference demonstrates the value of licensing
- Tough negotiations in US over SA copyright bill, GroundUp 31 January 2020
- FOIA: Film industry lobbies South Africa’s Parliament to suspend Copyright Amendment Bill
- EU Delegation letter to the South African Presidency, 20 March 2020.
- Comments from the European Commission to the South African government, 18-06-2020
- Blind SA takes Ramaphosa to Court, Sunday Times, 7 June 2020
- Supporters of the Copyright Bill should avoid resorting to political expediency to achieve their aims, 9 June 2020
- Karjiker stoops low with claims that Blind SA being used in Copyright Amendment Bill fight, Daily Maverick
- Blind SA Constitutional Challenge Of The Copyright Amendment Bill, 19 June 2020
- Ramaphosa sends Copyright and Performers' Protection Bills back to Parliament, fearing exploitation
- COPYRIGHT REFORMS LIKELY UNCONSTITUTIONAL SAYS SA PRESIDENT IN MAJOR DECISION
- SOUTH AFRICA’S COPYRIGHT AMENDMENT BILL RETURNED TO PARLIAMENT FOR FURTHER CONSIDERATION (22 June 2020), Infojustice.org
- See the light and pass the Copyright Amendment Bill (24 June 2020), Mail & Guardian
- Behind Ramaphosa’s rejection of the Copyright Bill (2 July 2020)
- Copyright Bill: A victory for creatives, a slapdown for big tech (7 July 2020)
- Pissed off Chicco Twala Open Letter to Three South African Ministers (9 July 2020)
- Proxy conflict over South African copyright law (24 August 2020), Justus Dreyling,Netzpolitik
- Copyright Amendment Bill "beneficial to creators" (Aug 25, 2020 6:25 AM) Cape Talk Radio
- Freedom of Panorama in South Africa
- A list of academic papers supporting the legal case for Fair Use.
- Productivity Commission report into Intellectual Property Arrangements and the Ernst & Young Cost Benefit Analysis of the ALRC’s proposed Copyright Reform for the Australian government. The commission recommends the introduction of a fair use exception so as to help grow the Australian economy.