Copyright reforms likely unconstitutional says SA President in major decision

The President of South Africa has made a much-awaited announcement regarding the controversial Copyright Amendment Bill and Performer’s Protection Amendment Bill in South Africa. His decision to refer the Bills back to the National Assembly is because they “may not pass constitutional muster” and could be at risk of being set aside by the courts.

The reasons:

• Incorrect tagging –the Bills were incorrectly tagged as section 75 Bills when they are section 76 Bills that affect cultural matters and trade.
• That the Bills will enact law that may be retrospective and arbitrary deprivations of property. Copyright owners will be entitled to a “lesser share of the fruits of their property than was previously the case” and there is uncertainty as to how it would operate.
• A failure to consent on the material amendments including the fair use provisions.
• Impermissible delegation of legislative authority to the Minister regarding the deprivation of property i.e. copyright from those to whom it was assigned in the past.
• Several new exceptions constitute:
• arbitrary deprivation of property and violate the right to freedom of trade, occupation, and profession.
• may conflict with international treaties signed by South Africa.

For these reasons the National Assembly is requested to consider “the Bills afresh so that their objectives can be realized speedily and without the risk of any constitutional challenge”.

Afro Leo spoke with Afro Chic who has been following the developments on CAB very closely: “I wonder what different outcome would have been achieved had a different process taken place? What is clear from this is that copyright is considered “property” for the purposes of Section 25 of the Constitution. This has potentially far reaching implications in the current context of national debate on appropriation of property without compensation in the land reformation process. One wonders what, potentially unintended, consequences may come from that.”

Stephen Hollis, Adams & Adams, who has been a crusader for a number of trade associations that do not support the Bills in their current form is delighted, citing this as “a huge win for the creative sectors” whilst at the same time commenting that “now the real work begins”. Stephen should also be delighted because much of reasoning in the President’s communication was extracted directly from submissions that were carefully prepared by him and others.

Blind SA, who had initiated legal proceedings to compel the President to comply with his duties and who advocated for many of the changes in the Bill, stated that they will “study the State Attorney’s letter [containing the President’s decision] and the options available to Blind SA”.

Denise Nicholson, librarian at Wits University and well known proponent for signature of the Bills, was obviously disappointed - "One has to question, if he views these issues as unconstitutional, why Ramaphosa only acted in terms of his constitutional obligations after blind people had to take him to the Constitutional Court and the USTR and EU stepped up their economic bullying.  Had he acted responsibly in terms of Section 79(1), maybe these issues could have been resolved by now for the benefit of all stakeholders. Many of the provisions in the Bill would have been extremely helpful for libraries, archives, teaching and learning, research and innovation, during the lockdown period. 

Perhaps the USTR, EU, and multibillionaire conglomerates that are the main beneficiaries of copyright from South Africa, especially from the educational and library sectors, perceive this as a 'win'.  Well, it is indeed a sad day for access to information for education, research, innovation, AI, people with disabilities, digitization programmes and preservation of our cultural heritage, authors and creators, libraries and archives, etc. They all need many of the provisions in the Bill to function in a digital world in the 21st century. 

Of course, everyone wants this matter resolved fairly and efficiently, and for the benefit of all South Africans. But, the President's failure to act decisively and within a reasonable period as required by our Constitution has prejudiced everyone. Access delayed is access denied for all!"

It will not be easy or quick for the National Assembly to deal with the constitutional aspects of the Bill. The processes for section 76 Bills are significantly different from those of section 75 but that may not be the biggest hurdle says Afro-Chic who considers that the National Assembly will likely need to refer the matter back to the Department of Trade and Industry. In snakes & ladders, that is like going from the final tier to the first, chimes in Afro Leo.

Public consultation needs to follow due process which will take time. On a positive note, the whole process has brought copyright onto the national agenda and there is at least agreement on the need for urgent reform. What happens next is likely to require strong leadership and collaboration to take the process forward. There will need to be ladders to make the game move faster.

For those new to action, please read the numerous posts on this blog tracking the progress of CAB and the divergent views on it. Here are some of them:

THE COPYRIGHT AMENDMENT BILL: WHERE TO FROM HERE? ALUTA CONTINUA! DECOLONISING COPYRIGHT: BUILDING OUR CREATIVE AND INFORMATION ECONOMY CRITICS OF SOUTH AFRICA'S COPYRIGHT AMENDMENT BILL GATHER RE-CREATE'S SEMINAR ON THE COPYRIGHT AMENDMENT BILL THE COPYRIGHT AMENDMENT BILL: WHERE ARE WE NOW? EXPECTATIONS AHEAD OF 'ON A KNIFE'S EDGE' SOUTH AFRICA'S COPYRIGHT BILL - TAKING THE DEBATE FORWARD HAS SOUTH AFRICA’S IP AGENDA BEEN CAPTURED? RESOURCES ON THE CAB DEBATE: ALL THE LINKS YOU NEED

Image Credit: Jacqui Brown https://www.flickr.com/photos/120600995@N07/14125947172 
Edited on 22 June to include comments from Denise Nicholson