President Cyril Ramaphosa’s copyright u-turn

On 16 June 2020, President Cyril Ramaphosa referred the proposed Copyright and Performers’ Protection Amendment Bills back to the National Assembly for re-consideration.

Since 2017, the government has been taking steps to pass legislation to amend copyright laws in South Africa. Some of the most notable issues the Amendment Bills seek to address are to:

  • accommodate the visually impaired and otherwise print disabled persons by introducing exceptions to the exclusive right of authors (or their assignees) to reproduce or copy works; and
  • provide educators and students greater and easier access to works of all kind with a view to increasing access to information.

However, there are many other issues canvassed below that are more contentious in nature.

Section 79(1) of the Constitution of the Republic of South Africa, 1996 grants the President the authority to assent to and sign a Bill referred to him by the National Assembly, or refer it back to the National Assembly for reconsideration (if he has reservations about the constitutionality of the Bill).

The President received several submissions in favour of, and against, the Amendment Bills and in considering them concluded that, in their present form, the Amendment Bills are vulnerable to constitutional challenges and require reconsideration by the National Assembly for the following reasons:

Incorrect tagging of the Copyright and Performers’ Protection Amendment Bills:

The Bills were incorrectly tagged as section 75 Bills (ordinary Bills that do not affect the provinces) when in fact, they were section 76 Bills (ordinary Bills that affect the provinces such as Bills affecting, inter alia, cultural and trade related matters). The constitutionality and validity of proposed Bills have historically been challenged and set aside by our Courts based on procedural defects (such as incorrect tagging). Courts will often set aside the proposed Bill and grant the Legislature a reasonable time period to remedy the procedural defect. The practical effect of the above is that a different administrative process is to be followed in respect of section 75 Bills (debated only in the National Assembly) and section 76 Bills (debated in both the National Assembly and National Council of Provinces (“NCOP”)).

Retrospective and arbitrary deprivation of property:

The Amendment Bills propose that copyright owners will be entitled to a lesser share of the fruits of their own labour and skill. The impact of these far-reaching provisions affects, not only the authors the Amendment Bill seeks to better protect, but also those that live in poverty as a result of not having been fairly protected in the past. The intended retrospective provisions could deprive copyright owners of property without sufficient reason, and amount to arbitrary deprivation of property rights.

Fair use:

Substantial amendments to the fair use provisions of a work, or the performance thereof, were proposed in the Amendment Bills without affording the public an opportunity to comment on them before the final version of the Bills were published. The failure to consult with the public, on aspects that materially affect the Bills as a whole, could render these provisions constitutionally invalid.

Impermissible delegation of legislative power to the Minister:

Certain sections of the proposed Amendment Bills confer substantial discretionary powers on the Minister to make key decisions regarding the deprivation of property without compensation for that deprivation, or any obligation to consult with the affected parties.

The Amendment Bills also fail to provide for any oversight role on the part of the NCOP. This failure by the National Assembly appropriately to delegate decision-making powers to the NCOP, is evidently impermissible under the Constitution.

The Copyright exceptions:

The intended introduction of certain copyright exceptions and limitations may constitute reasonable grounds for constitutional objection on the basis that its interpretation could result in arbitrary deprivation of property, violating the right of freedom of trade, occupation and profession and could in all probability be in conflict with international treaties signed by South Africa.

International treaty implications:

The Amendment Bills seek to align national legislation with International Treaties signed and in the process of being acceded to by South Africa. It appears that the Amendment Bills, in their current form, inadequately consider the implications of the various international treaties South Africa has signed. Furthermore, it appears that the Amendment Bills may cause economic harm to our music and film industries due to the restrictions it imposes on the economic rights of performers.

Conclusion:

The President justifiably referred both Amendment Bills back to the National Assembly for reconsideration, as they are unlikely to withstand constitutional muster in their current form.