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