Last week President Cyril Ramaphosa referred the contentious Copyright Amendment Bill back to Parliament because a number of its provisions are unconstitutional. This was nine years after the Copyright Review Commission recommended amending the Copyright Act to improve the lot of composers and performers and to reform the practices of collecting societies.
A government presentation just after the Bill had been introduced gave the impression that it was a done deal. Not only, was it said, would South Africa’s copyright and performers protection laws stand up for creators of copyright works, but the legislation would follow a “users’ rights” agenda that would be for the common good. How could it go wrong?
But go wrong it did, the seeds for the Bill’s destruction having already been planted in its making.
The Bill had no real impact assessment under the government’s internal procedures. Parliament’s portfolio committee recognised that the Bill was poorly conceptualised and written, but instead of rejecting the Bill outright, it decided to correct the Bill’s “user” provisions and to remove clauses that would have resulted in expropriation of copyright to the state. But the end result did not come close to capturing all the material errors in the Bill, and no effort was made to include an impact assessment. Petitions by all sectors of the copyright industries were politely heard but ignored.
The most contentious provision in the public debate was the “fair use” clause, a set of principles that will determine when the permission of the copyright owner for the copying of a work is not needed. It was but one of eight new copyright exceptions that go way beyond the copyright exceptions that South Africa’s law already has. With permission not required, there is no remuneration for the use of the copyright work. That result is hard to square with the stated goal of standing up for creators of copyright work.
The “fair use” clause was inspired by a provision in United States law, where the principles relating to this copyright exception have been applied for more than two centuries. The argument by the Bill’s proponents was that, if “fair use” works in the US without unreasonably prejudicing copyright owners, it should surely work in South Africa too. But the Bill’s “fair use” clause is very different from the US equivalent. Also, South Africa lacks the statutory damages rule in the US, that discourages deliberate mis-reliance on “fair use”.
South African courts have decided that intellectual property rights, including copyright, are considered as property, and that a copyright exception is an expropriation of property. Legislating a new copyright exception therefore has to be justified under the Constitution’s Bill of Rights.
South Africa is also a party to international treaties that have South African copyright recognised in most other countries of the world and vice versa. These treaties have basic principles that a member state’s copyright exceptions must meet.
As a near-final step, the portfolio committee appointed a panel of experts, which included me, to review the Bill from the perspectives of wording, constitutionality and treaty compliance. My advice was that “the legal issues raised by the Bill and by the process it took to get to this point, are substantial and material, whether from the perspective of compliance with the Constitution, South Africa’s meeting of its obligations under the international treaties to which it is a party, and the conceptualisation of its provisions arising from the policy considerations that underlie it. This advice shows that the Bill has material flaws in all these respects, very few of which can be corrected by mere changes in the wording of the clauses of the Bill.” All four experts drew the committee’s attention to the Bill’s serious deficiencies, many of which were subsequently raised in the president’s rejection of it.
Notwithstanding all of this, I was dumbfounded when, in my presence, the department of trade and industry’s Consumer and Corporate Regulations Division reported to a National Council of Provinces committee hearing that the panel of experts had “cleared” and “verified” key provisions of the Bill. This statement was clearly false. A letter I wrote to the minister, the department of trade and industry and the select committee reporting on this received no reply and had no effect on the process to pass the Bill in Parliament, which was then rushed through before dissolution of the fifth Parliament in early 2019.
Since copyright is mutually recognised between most countries through a network of treaties, it is not surprising that the Bill would raise alarm on the international stage. Concerns were raised about its breach of those treaties and its infraction of undertakings given in return for trade benefits unilaterally given to South Africa by the US. The effect that the passage of the Bill would have on South Africa’s access to trade markets in the industrialised world might have been a factor in the president’s decision, but does not detract from the fact that swathes of the Bill are unconstitutional and in breach of South Africa’s treaty obligations.
The president’s concerns that many of the Bill’s provisions are unconstitutional now have to be considered by the National Assembly. A sober assessment of the Bill and the president’s concerns should result in Parliament rejecting the Bill as unfixable. That would mean that this misadventure has cost the urgently-needed reform of copyright law nine years since the Copyright Review Commission’s report of 2011. If the Bill is rejected, there are mechanisms with which some of the uncontentious policy goals could be legislated and implemented quickly.
If anything, the Copyright Amendment Bill has shown that legislating cannot be undertaken based on uninformed prejudice, activist slogans and gut-feel solutions. Parliament and the government have to follow the rule of law in legislating.
This they can only do if their decisions are based on fact, they give the public the opportunity to participate in a meaningful manner and they provide informed leadership. In his rejection of the Bill, Ramaphosa has done just this.
This is an edited version of an article that first appeared in SA People.
André Myburgh is a South African lawyer based in Switzerland, where he specialises in copyright policy and legislation internationally. He was a member of the panel of experts established by the portfolio committee on trade and industry to advise on the Copyright Amendment Bill