Wikimedia South Africa/Copyright Amendment Bill

Wikimedia South Africa and friends calling for Freedom of Panorama in South Africa at the Union Buildings in Pretoria, 2023. The statue of Nelson Mandela is censored out so as to comply with a lack of a Freedom of Panorama Clause in SA law.

Explainer: What is open knowledge? (A short history of copyright)"

This page documents Wikimedia South Africa's efforts to amend the South African Copyright Act (old 1978 act| new bill (B13F 2017)). 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.

As an organisation that promotes free knowledge Wikimedia South Africa feels strongly compelled to support the reform of copyright law to allow for easier sharing of knowledge and thereby promote the public interest.

Older/previous versions of the bill can be found at the Parliamentary Monitoring Group website.

Background

Some affected images due to no FoP

Gugulethu Seven Memorial

Mandela Capture Site Monument

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 by some WMZA 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 received 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.

The 2019 bill (in section 14 which amends section 15 of the 1978 act) makes an allowance for Freedom of Panorama when it states:

The copyright in an artistic work shall not be infringed by its [inclusion] use in [a cinematograph film or a television broadcast or transmission in a diffusion service] another work, if—

(i) such [inclusion] use is merely by way of background, or incidental, to the principal matters represented in [the film, broadcast or transmission] that other work; or

(ii) the artistic work so used, is situated in a public place. (b) The copyright in an artistic work shall not be infringed by the issue to the public of copies, or the communication to the public of anything, whose making was by virtue of this subsection not an infringement of the copyright.’’

Fair Use

A fair use logo that is often used on Wikipedia. Wikimedia South Africa supports the move from a Fair Dealing system in South Africa to Fair Use.

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.

Clause 13 (sections 12A, 12B, 12C, and 12D) of the bill will allow for fair use to effectively replace the fair dealing regime in South African copyright law.

Role players

Main article: Copyright Amendment Bill Role Players

Over 30 local and international based organisations and interest groups have declared interests in supporting or suppressing the CAB.

To see the a table of all of the supporters and detractors of the CAB and summaries of their publicly stated reasons for their positions, as well as which countries they come from, please see the sub-article Copyright Amendment Bill/Role Players.

CAB vs PPB

To clarify some terminology; whilst the Copyright Amendment Bill (CAB) was being drafted by the Parliamentary Portfolio Committee on Trade and Industry in 2017 it was decided to split off the section of bill pertaining to the rights of performers and obligations of collecting societies into the Performers Protection Bill (PPB) [B24F 2016]. This was done as concerns over the adoption of Fair Use into the CAB was stalling passage of the bill and the committee wanted to pass the elements contained in the PPB as quickly as possible so as to protect the rights of impoverished artists, most notably musicians. The PPB however still remains intimately linked to the CAB and is reliant on it.

Timeline

Main article: Wikimedia South Africa Copyright Advocacy Timeline

  For the CAB: 197 votes
  Against the CAB : 4 votes
  Not present to vote
Ministers of parliament voting on the CAB on 5 December 2018.

Wikimedia South Africa started advocating for the adoption of Freedom of Panorama and Fair Use into South African law to support Wikipedia in 2014. A timeline of the chapter's advocacy efforts, staring with the first realization of the importance of this advocacy from Wiki Loves Monuments in 2012 to the present, can be found at the Copyright Amendment Bill/Timeline sub-article page on Meta Wiki.

The timeline covers the early period of first calling for it to be adopted into the CAB, its passage through Parliament in 2018 and then again in 2022, and the present stage awaiting for enactment. It lists a number of notable events, media statements, hearings, and publications related to the CAB. It also summarises the position of different political parties and their voting behaviour on the bill.

Important links

• Freedom of Panorama in South Africa
• Copyright Amendment Bill (B13-2017), Parliamentary Monitoring Group summary page of the bill's journey through parliament.
• 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.
• Denise Nicholson, a retired librarian and supporter of the bill, keeps an up-to-date blog about the passage of the bill, what it contains, and hosts many other bill related resources. It is a very valuable resource on this issue.
• Advocating for Freedom of Panorama in South Africa (26 January 2024), by Douglas Scott, published in Wikimedia Diff. A summarised account of Wikimedia South Africa's Freedom of Panorama advocacy journey up to January 2024. It closes with some important lessons for others interested in Wiki advocacy based on our experiences.