In a previous post I wrote about South Africa’s seemingly never-ending struggle to enact new legislation to update its 1978 vintage copyright law. The Copyright Amendment Bill, Bill 2023-01-05, which has been in the making for the best part of a decade, is intended to update the South African copyright regime by providing explicitly for limitations and exceptions that form an accepted part of copyright law in many developed countries (Nicholson 2022b). By incorporating these exceptions and limitations, the Bill seeks to remove obstacles that impede access to information for students, researchers, and content creators. These obstacles have so far prevented South Africa’s ratification of the 2013 Marrakesh Treaty to enable cross-border exchange of accessible formats for the visually handicapped. The Bill will also remove provisions that inhibit access to orphan works. It will allow librarians legally to copy rare and fragile materials for preservation purposes (Nicholson 2022a).
The revised Bill was passed by the National Assembly on 1 September 2022, by 163 votes (including those of the governing African National Congress) to 45. The 45 opposing votes came from five parties, including the Democratic Alliance (DA), which is the official opposition, and the third largest party in Parliament, the Economic Freedom Fighters (EFF). (Nicholson 2022a). At first sight this is puzzling. Why did these two, which are diametrically opposed ideologically speaking, both oppose the bill?
I leave it to readers with more time and energy to dig through the proceedings of the many workshops and committee meetings and the debates in the National Assembly to find the reasons the DA and the EFF gave for voting against the Bill. Instead, I focus here on how the votes of these parties may relate to their stated principles. The positions of the two smaller parties will not be discussed.
The Democratic Alliance
In its Values and principles document the DA states that freedom of information is one of the foundational pillars of an open society. The document states:
Freedom of information, i.e., the right of the public to access information that is held by the government, is integral to ensuring that citizens can hold their elected representatives accountable for the actions they take on their behalf (p.3).
Most librarians and information workers should have no objections to this statement. Note, however, that it is only concerned with information held by the government.
The DA document also states that “information is an exceptionally important resource, allowing those who have access to it to wield power over those who do not.” (p.3).
We can agree with this too, but this is where we need to make a distinction between freedom of (access to) information and free (open, gratis) access to information. The DA is strongly in support of the former, but if its vote on the bill is a true indication, not so supportive of the latter. In 2020 the party, which had been perceived as leaning towards free market capitalism, clarified or modified its stance on the economy, stating that it wants a “social market economy”, which it describes in part as follows:
- A social market economy refers to an economy in which participants (firms and consumers) rather than the government decide on what to purchase, where to invest, and how much to produce.
- Ownership of risk by private participants in a market economy, means a right and a duty to own both the rewards and responsibilities of success or failure.
- A social market economy, however, is not one where there is no government intervention at all. Left entirely on their own, participants who enjoy market dominance can engage in behavior [note the American spelling] which keeps out smaller participants and competition. Alternatively, participants can collude and fix prices with one another to the detriment of the consumer.
- Governments have an important role to play in improving access to markets by championing open and competitive markets; because openness and competition is not inherently the natural state of affairs” (p.4.)
This sounds a lot like true-blue free market capitalism, with a dash of compassion thrown in: compassionate free market capitalism? It would explain why the DA voted against the Bill. If I may generalise, free market capitalists are generally in favour of the free market, except when they can gain more by locking things up. In such cases they prefer the government to get out of the way. Free market capitalists are, ironically, not in favour of free (open, gratis) access to information. They prefer information to be kept behind paywalls and sold to make money for them. The DA’s vote appears to be in line with a pro-business stance.
The Economic Freedom Fighters
The EFF describes itself in its constitution as “a radical, Left, anti-capitalist and anti-imperialist movement with an internationalist outlook anchored by popular grassroots formations and struggles. EFF will be the vanguard of community and workers’ struggles and will always be on the side of the people.” Opposing the Copyright Amendment Act hardly fits into this platform. Opposing the Bill plays into the hands of the capitalists and makes it more difficult for the people to get informed and participate in the struggle for their rights. Could it be that the EFF opposed the bill simply because it was proposed by the governing party?
The Stalingrad Strategy
In the meantime, the DA, the EFF, and the international and domestic owners of intellectual property need not lose any sleep about an imminent signing of the Bill. A rear-guard “Stalingrad-like” strategy is in place that can delay the Bill for years to come. Before the President can sign the Bill into law, it also must be considered by the National Council of Provinces. In June 2021, the Bill was “re-tagged” or re-categorized under Section 76 of South Africa’s Constitution. That section requires a bill to be considered by the legislatures of each of the nine provinces. Provinces may decide to hold public hearings on the Bill and propose amendments to it. All this could delay passage of the Bill for years…
A luta continua, the struggle continues.
Nicholson, Denise Rosemary. 2022a. “New Copyright Bill Will Take South Africa into the 21st Century at Last.” GroundUp News (blog). September 15, 2022. https://www.groundup.org.za/article/new-bill-will-remedy-many-evils-of-current-copyright-regime/.
———. 2022b. “Four Political Parties Trying to Block South Africa’s Copyright Progress.” September 17, 2022. https://news.ezekielradio.co.za/african-news/four-political-parties-trying-to-block-south-africas-copyright-progress/.