Monday 12 August 2019

Afro Chic

The Copyright Amendment Bill: Where to from Here? Aluta Continua!

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

Afro Chic

Afro Chic

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