President Cyril Ramaphosa has referred the Copyright Amendment Bill and the Performers’ Protection Amendment Bill back to the National Assembly, the Presidency said in a statement on Monday.
Ramaphosa’s decision was based on his reservations about the constitutionality of the legislation passed by Parliament.
“The Bills have been referred to the President for assent and signing into law however the President is concerned that the legislation is open to constitutional challenge,” the Presidency stated.
Among other provisions, the Copyright Amendment Bill seeks to accommodate visually impaired and otherwise print-disabled persons by introducing exceptions to the exclusive rights of authors or their assignees preventing the reproduction or copying of their work in any manner or form.
“Proponents of the exception contend that without such exception, visually impaired persons will have limited access to copyright literary works, as such works cannot be transcribed to braille and other formats for people who are print-disabled,” the Presidency said.
“Educators and librarians also seek greater and easier access to works of all kinds. The broadening of access to content is aimed at increasing access to information and facilitating freedom of expression.”
Ramaphosa acknowledged the noble objectives of the amendments but also indicated to the Speaker of the National Assembly that the Presidency has received a number of submissions opposing the signing into law of the two Bills.
One of the reasons the two Amendment Bills were kicked back to Parliament was a technicality.
Ramaphosa said that both laws were tagged as Section 75 Bills, which do not affect the provinces.
“However, the President is of the view that the Bills concerned are in fact Section 76 Bills, given that they affect cultural matters and trade — namely trade in copyright — in which provinces exercise competence,” the Presidency stated.
Another reason for referring the Copyright Amendment Bill back to the National Assembly was Ramaphosa’s concern that several sections of the law may constitute retrospective and arbitrary deprivations of property in that copyright owners will be entitled to a lesser share of the fruits of their property than was previously the case.
Ramaphosa contended that the law is unlikely to survive a constitutional challenge and voiced reservations about the “substantial amendments” to Section 12A, which deals with fair use, which were not subjected to public comment before the final version of the Bill was published.
“Other reservations cited by the President include copyright exceptions provide for in the Copyright Bill that may constitute arbitrary deprivation of property; may violate the right to freedom of trade, occupation and profession, and may be in conflict with the World Intellectual Property Organisation (WIPO) Treaty and the WIPO Performance and Phonograms Treaty, both of which South Africa subscribes to.”
Potential fiscal implications
BusinessTech reported earlier this year that the Copyright Coalition of South Africa (CCSA) believes that South Africa could lose as much as R34 billion in export revenue if the president signed the Copyright Amendment Bill into law.
This is because South Africa stands to lose its eligibility for the Generalized System of Preferences (GSP) under the US Trade Act.
Under the GSP programme and the African Growth and Opportunity Act (AGOA), sub-Saharan African countries are granted duty-free access to the US market for more than 6,000 products.
Meat, fruit, vegetables, precious metals, chemicals, iron, and steel products, and a range of manufactured goods are among the products that form part of the programme.
To remain eligible for these advantages, South Africa must comply with the 15 statutory eligibility criteria that are important to US interests.
President urged to sign new laws
On the opposing end of the spectrum was a group of prominent South African individuals, trade unions, and non-profit organisations who urged President Ramaphosa to sign the draft Copyright Amendment Bill and Performers’ Protection Bill into law.
Through an open letter published by the Mail & Guardian, they argued that the legislation is vital for the promotion of inclusive economic growth, broadening access to education, and creating jobs in South Africa.
“There is a great deal of innovation and investment into South Africa that is being deterred by failure to sign the Bills,” the letter states.
“Technology companies require a balanced approach to copyright to invest in new growth sectors such as artificial intelligence.”
The signatories to the open letter argued that the rights of several groups are being denied by the failure to allow the bills to pass into law:
- Blind and partially sighted people are being denied rights to information.
- Actors, musicians and fine artists are being denied royalty income commensurate with their work.
- Journalists, filmmakers and photographers are being denied the right to own their work and the right to incidental use of materials.
- Learners, students, teachers and academics are being denied the right to access essential educational materials.
- Writers, authors and composers are being denied the ability to ensure copyrights revert to them in good time.
Signatories of the open letter included former justice of the Constitutional Court Zak Yacoob and executive director of Section27 Umunyana Rugege.