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Anriette Esterhuysen was the executive director of the Association for Progressive Communications (APC) until March 2017. Prior to joining APC, Anriette was executive director of SANGONeT, an Internet service provider and training institution for civil society, labour and community organisations. She was active in the struggle against Apartheid from 1980 onwards. From 1987 to 1992 she was involved in information and communication work in development and human rights organisations in South Africa and Zimbabwe.

Recently, she was one of the signatories of an open letter to the President of the European Parliament, asking him to delete upload filters (Article 13) from the EU’s proposed Copyright Directive, formally known as the Directive for Copyright in the Digital Single Market (DSM).

GM: When did you first use the Internet?

AE: Pretty early on. I first used email in 1987 and online discussion forums in the early 1990s. These systems evolved into what we currently know as the Internet.

GM: When did you first become aware of copyright? What did you think of it?

AE: I worked in university libraries in the late 1980s and also worked as a sociology tutor. This made me aware of the huge restrictions placed on university libraries when it came to photocopying material for students who could not afford text books.

But my awareness increased when I started working on providing online content. I learnt that something really simple, like translating training material into a language that the people you were training could understand, constituted a copyright evaluation. Or sharing educational resources. I became part of the Creative Commons movement, and worked with a team of local pro bono lawyers to establish a South African Creative Commons License.

For me the most striking absurdity remains the fact that school kids in rural areas in my country, South Africa, have to go through their school year without text books, because the text books can only be accessed in hard copy, with the publishers of the text books not allowing any form of online distribution because of copyright restrictions.

As the Internet became ubiquitous, the increasingly desperate measures of publishers, and the music industry, convinced me that the potential of the Internet to democratise access to information was at risk. Usually it was not the artists themselves who wanted to increase copyright enforcement, but the intermediaries – the distributors – who in most cases were the beneficiaries of a business model which involved exploiting both creators and users to control sharing of content over the Internet.

I realised that copyright, while a good thing in principle, was being distorted and abused by corporations who pretended to be concerned about the interests of creators. But all they really cared about was loss of profit. They dominated the policy debate, and much-needed exploration into new business models for content distribution, and open licensing systems, was not happening.

GM: Could you say a little about what the Association for Progressive Communications is, and what it is trying to achieve?

AE: The Association for Progressive Communications is global membership-based network of organisations and individuals, established in 1990, who work collaboratively on the Internet and information and communication technologies (ICTs) for social justice, gender equality and sustainable development. APC has 58 organisational members and 34 individual members in 74 countries, primarily in the global South. Access to information and using ICTs to strengthen the global commons have been important to APC since our establishment. We have advocated for open licensing for more than 20 years.

GM: What role does the Internet play?

AE: It is a disruptor and an enabler. What is disturbing is that the same technologies that initially opened the doors to content sharing, and access to information to people who cannot afford to pay for it, are now being used to reinforce digital rights. It is also disturbing that policy makers – including in Europe – are spending more time listening to those with vested interests in reinforcing intellectual property rights than encouraging the creation of new business models that will benefit both creators and users.

GM: How does copyright affect APC’s work?

AE: The ease of copying and sharing information challenges conventional notions of copyright control as it evolved in the late 20th century. But we should not forget that this system of control was one that was developed by ‘middlemen’: publishers and an entertainment industry – not by individual authors or creators.

GM: Moving on to the proposed EU Copyright Directive, you signed the letter about Article 13: what do you see as the problems there?

AE: It starts from the wrong place. This is why I think that even though some of the improvements in the latter half of 2018 should be noted, the whole initiative is still problematic. The main problems:

1) It changes the liability regimes by making intermediaries responsible for copyright enforcement, proactively. This puts freedom of expression at risk, but it also puts the right and ability to access information of millions of users at risk. The current system of following up on perceived violations gives users the ability to make a case. Automated systems won’t.

Perhaps there is a need to look at liability in the context of a platform like, e.g., Facebook, as they are clearly not just carrying content, but also manipulating who sees what. But that is a different issue. Making intermediaries liable for the content they carry will a) undermine freedom of expression and b) prevent millions of users who cannot afford to pay systems and who do not have credit cards from accessing information in the first place.

2) Definitions are vague. The following definition [from the Copyright Directive] applies to many not-for-profit entities that disseminate content online: “Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users”.

3) It starts from the wrong place. If the proposals started with user rights at its core, then there would be some definition of fair use (which there is still not, as far as I know) and then provisions would be built on top of their rights, rather than slashing through them, and then trying to add fixes after the fact.

GM: What do you think should be done about these problems?

AE: Go back to the drawing board. There is definitely a need to look at the need of journalists, and of news outlets, to be financially sustainable on the Internet. Also of other creators of content. But this process should start with all stakeholders around the table, with both the interests of rights holders and users being considered at the same time. It should explore new business models and approaches to copyright rather than try to maintain models that are clearly no longer viable through top-down controls.

GM: What about other parts of the Directive – for example, Article 11’s ancillary copyright: what’s your view on that?

AE: I think the so-called « link tax » is a disaster. Perhaps its intention is to strengthen mainstream journalism and media – but that is not likely to be the outcome. Having to pay for quoting news sources is likely to strengthen fake news rather than increase the income of the news sources.

It is very conceivable that platforms and search engines will enter into contractual agreements with large media outlets, allowing their content to be quoted free of charge…thereby side-lining smaller and independent media outlets and undermining diversity in the media environment as a whole. Again, the impact for the millions of users (including journalists and creators of content, researchers and activists) who cannot afford to pay will be massive. Think of an Internet divided into a ‘have money, can pay, will quote legally’ part, and a ‘do not have money, or credit card, cannot quote legally’ part? It seems insane to me, particularly if your goal is to get your information out there and used.

GM: Any thoughts on Article 3, which covers text and data mining?

AE: I think the intentions are good, but I can’t see it having good outcomes. It could limit the use of data by academic researchers, and by civil society organisations. And I might be wrong, but I don’t see it impacting on the huge Internet companies and the data brokers they work with, who are the biggest data miners.

GM: If the Copyright Directive is passed in its present form, what do you think its knock-on effects around the world might be? For example, what effects might it have on access to information, and on social justice and development around the world?

AE: It will restrict access to information by people who need it, are using it, and who cannot afford to pay for it. I see it as fundamentally undermining the ability of the Internet to create a more level playing field in terms of access and creation of information.

GM: South Africa has also been grappling with updating copyright law, and there is heavy lobbying around this. What has been happening there, and how would you contrast it with what is happening in the EU?

AE: The amendment bill was passed last year. The recognition of fair use is a great step forward. I think that in many respects, while not perfect, the South African copyright amendment process was inclusive and consultative, and did consider the rights of users in spite of heavy lobbying from the entertainment industry. The bill also addresses exceptions and limitations for users with disability.

How to contrast it with what is happening in the EU…? Overall, I think it was a more user-centred process. This is how it should be. Information is so vital to development, democratisation, protection and promotion of rights. Any effort to reform copyright should use that as a starting point. Not the interests of industries who are resisting fundamental change to their current business models.

Featured image based on work by Bengt Oberger.