The main goals of the research are to: 1. Provide an overview of the current documented positions being taken by parties supporting and opposing the legislation (including but not limited to “fair use versus fair dealing” as well as retrospective clauses
Copyright protection is the right of the copyright owner to prevent others from making copies of their work. It trades off the costs of limiting access to a work against the benefits of providing incentives to create the work in the first place. Striking the correct balance between access and incentives is the central problem in copyright law. For copyright law to promote economic efficiency, its principal legal doctrines must, at least approximately, maximise the benefits from creating additional works minus both the losses from limiting access and the costs of administering copyright protection.
Effective copyright protection therefore encourages or enhances creators to create and publishers to publish. This would be done through providing them with effective incentives to continue creating and publishing. The content that they are providing should not be freely available or accessible so as to make it unprofitable for them and therefore depriving them of their property and to a certain extent, their dignity. However, restricting access too much would result in a monopoly and the prices for accessing the content being so high that most people would not be able to access the content that is created. This would restrict the general public’s freedom of expression as well as their access to information and educational content.
With South Africa’s history of racial imbalances, having effective copyright protection is even more crucial. This is even more so in the access to educational content where previously disadvantaged schools and learners still struggle to have access to educational textbooks and materials for affordability reasons.
Access to copyrighted materials is also important for the preservation of cultural and creative content since it would allow for the digitization of the content so that it is preserved and reproduced in technological formats that are used currently and therefore making sure that they are available for generations to come.
The Bill in its current form, it has been argued, does not balance the interests of creators with the needs of society, and is heavily biased towards the users. Opponents of the Bill argue that some of the provisions of the Bill will largely impact on the more than 5 000 small and medium sized record labels, as well as thousands of South African musicians who will not be able to sue big tech companies that are likely to take advantage of the broad exceptions in the Bill and the revenue generated by the industry will likely shrink. This could stifle the culture of writing, reading, education and training, creativity and innovation as well as the socioeconomic wellbeing of South Africans. It has also been argued in the PWC report that publishers expect a 33% decrease in sales, which would equate to about R21 billion a year and a loss in tax revenue, resulting in imported publications increasing.
The United States’ threat to review South Africa’s eligibility in the General System of Preferences (GSP) as a result of concerns about the effect of the Bills on the country’s intellectual property protection and enforcement would have dire effects for South Africa as a whole (not just the creative industries) and this could result in over R34 billion worth of South African exports to the United States being suspended or withdrawn.
Effective copyright protection is therefore critical since it facilitates cultural and economic production, thereby driving entertainment revenue locally and exporting it internationally. This is crucial not only for the cultural and creative industries (CCIs), but for the economy of the entire country.
