infoJustice

Last week, South African President Cyril Ramaphosa returned the Copyright Amendment Bill and the Performers’ Protection Amendment Bill back to Parliament for further consideration. The legislation had been passed by the National Assembly and sent to the President to be signed into law, but it had generated strong opposition from rightholder groups, including those in the U.S. such as the IIPA.

President Ramahposa’s letter to Parliament dated June 16 warned that the legislation might not “pass constitutional muster and may therefore be vulmerable to constitutional challege.”

The Afro-IP blog summarized President Ramaphosa’s specific reasons for sending the bill back to Parliament:

• 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.

Statements

Sean Flynn, PIJIP, American University

The return of the Copyright Amendment Bill in part for an alleged issue with compliance of the limitations and exceptions with the international “3-step test” in the Berne Convention and WTO Agreement on Trade Related Aspects of Intellectual Property Rights is puzzling. Although publishers and some rights holders routinely complain that open general exceptions like fair use violate the test, WIPO’s chief copyright official did not back that charge in her opinion to the South African Parliament. None of nearly a dozen countries across the globe that have open general exceptions have been challenged under international law. Our empirical work has shown that South Africa’s education and other exceptions are similar to those that exist in many other countries. The most relevant constitutional question in the revision process should be what exceptions to copyright’s monopolies are required by South Africa’s expansive constitutional commitments to promote the achievement of equality, freedom to receive and impart information, to education, and to the rights of people with disabilities.

Denise Rosemary Nicholson, University of the Witwatersrand

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!