South Africa: The much-discussed
Copyright Amendment Bill is in a critical point in the post-legislative phase.
It has been passed by the National Assembly and the National Council of
Provinces and is currently on the desk of the President. Questions have swirled
about its constitutionality and a delay in its being signed has prompted
rumours that the President is having doubts but what his options are and where to
from here? Afro Chic explores.
As long as the Bill
remains a Bill it is a living document, subject to change. Of course, the
President can conclude that no changes are required and can sign the Bill into
law, promulgating it into an Act as per the provisions of section 84(2)(a) of
the Constitution.
Such a step is taken when the President has satisfied himself that the Bill
passes constitutional muster. This is what the Department of Trade and Industry (the
Department/DTI) feels ought to be done. After what they indicate was a long
period of consultation and efforts
to ensure that the Bill is in compliance with international treaties and
standards set by the World Intellectual Property Organisation
(WIPO), the Department feels that the Bill ought to be signed into law
forthwith and as it stands. It has been averred by sources that the delay in
signing could well emanate from there being over 18 Bills awaiting signature
and that the President has to to work through all of them, resulting in the
process being stalled for now. It has been highlighted that the Bill, once it
becomes an Act will serve as an instrument of ratification for the, WIPO Copyright Treaty
illustrating compliance with this treaty.
Of course, not
everyone agrees. The Coalition for Effective Copyright
(the Coalition) has clearly set forth that it feels the Bill is
unconstitutional as it is of the view that some of its provisions, for instance
those surrounding “fair use,” amount to arbitrary deprivation of intellectual
property without compensation; something prohibited by the Constitution in
section 25. They are of the opinion that it ought to be referred back to the
National Assembly for reconsideration of its constitutionality in terms of
section 84(2)(b) of the Constitution with a possible referral to the Constitutional
Court for a decision on the Bill’s constitutionality as per section 84(2)(c) on
the cards and as done in cases such as Ex Parte the President of the Republic of South
Africa In Re: Constitutionality of the Liquor Bill 2000 (1) SA 732 (CC).
The Coalition claims that consultation was inadequate and that many of the
provisions of the Bill do not accord with the prescripts of international law.
In the event that the Bill is passed by the President, the Coalition has
indicated that it will mount their own challenge to the Constitutional Court
with a view to invalidate the offending sections of the legislation. It would
then be sent back to the legislature for it to correct the defect the court has
identified and ruled upon, if any.
One means of
determining the constitutionality of the Bill lies in section 36 of the
Constitution; that is the limitation of rights in terms of law of general
application. Rights are not absolute and the exercise of the rights of one
individual or group should not “spill over” and violate the rights of another. Conversely, some limitations can be fair and
ought to be permitted. In analysing whether a limitation is justifiable or not,
section 36 provides certain factors that must be taken into account,
specifically 1(a) the nature of the right; (b) the importance and purpose of
the limitation; (c) the nature and extent of the limitation; (d) the relation
between the limitation and its purpose; (e) less restrictive means to achieve
the purpose. This is a process of balancing of interests that would certainly
be utilised in any constitutional challenge by parties on either side.
The path forward is
thus far unclear. The President has his options as do the naysayers of the
Bill. It would appear that either way, the constitutionality question will play
a big role in the process of finalisation. As we wait for the outcome with
bated breath, let us hope that the President will be guided by a basis steeped
in proper evidence and that due consideration is given to the intricacies and
effects of this important Bill.
Image Credit: Thomas Martinsen
