The Copyright Amendment Bill [B13B - 2017] had been sitting on the desk of President Cyril Ramaphosa for over a year waiting to be signed into law. In June 2020, when Blind South Africa issued a legal challenge over the delay, the President acted. But instead of signing the Bill that had been approved by the legislature, the President used his prerogative to return it to parliament citing constitutional concerns with certain aspects, including new exceptions for libraries, education and persons with disabilities.
The President’s rejection of the Bill is widely seen as the result of pressure by copyright industries, and the threat of trade sanctions and reduced future investment from the United States and the European Union.
Re-calibrating South Africa’s copyright system
On 19th August 2020, the National Assembly’s Portfolio Committee on Trade and Industry will receive a briefing from the Parliamentary Legal Advisor and the Department of Trade, Industry and Competition (DTIC) on the issues raised in the President’s letter.
In advance of the briefing, EIFL wrote to the Speaker of the National Assembly and to the Portfolio Committee to pledge support for the Bill. EIFL’s letter sets out how libraries and educational institutions in South Africa, and the millions of South Africans citizens they serve, will benefit greatly from new exceptions designed for non-commercial uses. They will help to re-calibrate the existing copyright system in South Africa which forces resource-deprived institutions to pay high licence fees to largely European and US companies. (For example, the 2011 Copyright Review Commission Report, known as the Farlam Review, confirmed that 70% of copying fees paid by higher education institutions in the previous year were distributed to foreign rightsholders). While this is a windfall for these companies, it is in our view, bad public policy for South Africa.
EIFL’s letter also notes that the exceptions in the Bill are modelled on provisions in the copyright laws of developed countries including Australia, Canada, Israel, Singapore, the UK and the US, that the Bill seeks merely to ensure that libraries and educational institutions in South Africa have the same rights than their counterparts in these countries, and any concerns that they may be inconsistent with South Africa’s obligations under international copyright treaties are misplaced.
The next steps in the legal process are that the National Assembly’s Portfolio Committee on Trade and Industry will consider the remitted Bill, with reference to the National Council of Provinces, and will prepare a report with recommendations. The first discussion will take place on 19th August 2020, with further deliberations scheduled for 25th and 26th August.
The committee's recommendations can go one of three ways. The first option is that the Bill is deemed not to be constitutionally defective, and is returned to the President as is. The second option is that any perceived defects are corrected and the amended Bill (approved by the Assembly) is returned to the President for assent. The President has two choices: he can decide to assent to the Bill the second time around (he is not precluded from signing a Bill even if his reservations are not all accommodated), or he can refer the Bill to the Constitutional Court for a decision on its constitutionality.
The third choice open to the legislature is the nuclear option: it finds that the Bill is so defective that it cannot be corrected, and it rescinds its original decision to pass the Bill. It is hard to imagine this happening, though, since the Bill was scrutinized dozens of times in briefings, debates, public hearings and amendments during the two-year parliamentary process. It would also risk setting back much needed copyright reform in South Africa by another generation (the 1978 Copyright Act is 42 years old), in a terrible failure of public policy.
In any scenario, however, there will inevitably be a delay and the losers are the ordinary people of South Africa - students, educators, people with disabilities, and individual creators. Let’s hope that the Bill gets back on track soon.