CHOLA MAKGAMATHE: Mr President, send the Copyright Amendment Bill back to Parliament until 'Fair Use' is remunerably fair

Dear Mr President

I am writing to you on behalf of Tintswalo, whom you introduced to us during your State of the Nation Address (SONA) recently. The story of Tintswalo, even though it has been used and misused by some for political expediency, is a true reflection of how far we have come as a country in the last 30 years.

And in your own admission, there is still a lot more that needs to be done for her and many others so that Tintswalo’s story of the next 30 years is one of even bigger success and achievement.

But Mr President, I am inclined to tell you about the Tintswalo I have had the privilege of knowing in the past five years. Born in Phuthaditjhaba, Qwaqwa, she was raised by a single mother with disabilities who has been a recipient of a government social grant since Tintswalo was born. She started her schooling at a no-fee school in Phuthaditjhaba and finished at the age of 18. But for the four years after that, she was stuck at home with no work and no money to further her studies.

However, due to the policies of your government Mr President, she was finally accepted and enrolled at a TVET college in Harrismith where she studied filmmaking, fully funded by the National Student Financial Aid Scheme (NSFAS). She successfully completed her studies in 2019. But because of the realities of this country, she unfortunately could not get a job in the creative industry and was idle for a while.

However, instead of folding her arms or living in regret, Tintswalo contacted a few content creators in film and television, offering them her skills. Eventually, she was given a hearing by a few of them. And in a space of two years, not only has she contributed to two television dramas, she has also now completed a documentary of her own which she has pitched to a streaming platform. All things being equal, Tintswalo is going to be a universally recognised content producer, something about which we should be proud.

Except not so soon. As we speak, the parliamentary portfolio committee on trade, industry and competition has adopted the Copyright Amendment Bill, as well as the Performers’ Protection Amendment Bill, in concurrence with the National Council of Provinces (NCOP).

The bills ostensibly seek to improve access to information for all South Africans and to provide helpful benefits for authors and creators. Its advocates call it “Fair Use”.

There is no debating that information must be democratised. The more Tintswalos can access information, a more educated society we will create, and inevitably, the more successful South Africa will be. Yet, the right to education cannot be at the expense of South Africa’s poets, culture and creativity. Teachers need to be remunerated, school infrastructure, including the digital components, must be upgraded, and yet the very content of education is expected for free, gratis. The Tintswalos who need access to information digitally also need digital information to access. Content without cutting-edge technology may be lame, but technology without quality content is blind. The two need not work against each other.

Mr President, the Constitution of South Africa states clearly that everyone has the right to a basic and further education, the same world-renowned Constitution also guarantees the right to property, and that includes the right to fruits one plants, the right to the fruits of one’s labour.

While Chapter 2 (25) of the Constitution states that property may be expropriated only in terms of law of general application for public purposes or in the public interest, it adds “subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court”.

The exponents of these two bills are advocating for a violation of this constitutional proviso. They are arguing, in the name of “Fair Use” that the creative copyright of Tintswalo can be expropriated from her without compensation on the pretext that it is for the good of all.

We disagree Mr President. A fair balance can be reached here. Tintswalo can be remunerated for her work while she is encouraged to make it available for broader use. That for us puts emphasis on the word “fair” in the phrase “Fair Use”. Those that use Tintswalo’s work, must use it fairly. They cannot just take her blood and sweat without compensation.

Besides Mr President, we believe that the passing of these bills will defeat the very tenet of what your government has been trying to achieve: to reduce unemployment and to create jobs. What better way to create jobs than to first create entrepreneurs like Tintswalo? We need to encourage more of her to come out and create. As they create, they educate. And as they educate, they get rewarded, fairly.

In June 2020, you sent back the draft bills because in your own words, the Copyright Bill “may constitute retrospective and arbitrary deprivations of property. These provisions mean that going forward, copyright owners will be entitled to a lesser share of the fruits of their property than was previously the case. The impact of these provisions reaches far beyond the authors it seeks to protect — those that live in poverty as a result of not having been fairly protected in the past”.

Those who are advocating for these bills will argue that the blatantly retrospective provisions have been deleted. Yet, there remain some retrospective effect of the bills in relation to works that embody or are based on other pre-existing works.

We agree with you, Mr President. We need to protect copyright owners and not condemn them to poverty in the name of a noble cause like access to information.

If reason does not prevail and the bills come across your desk, for her sake and others like her, please do the right thing by Tintswalo and send the bills back Mr President. You have brought her so far. You cannot abandon her now.