South Africa Parliament Calls for Comments on Fair Use

South Africa Parliament’s Portfolio Committee on Trade and Industry has invited a further round of public comments on the Copyright Amendment Bill provisions to introduce fair use and expand limitations and exceptions for libraries, education and other public interest uses. 

The Committee invites submissions with reference on the expansions on the Bill’s provisions fair use and for other purposes in Sections sections 12 and 19. It also invites comments on additional sections of the Bill that may implicate the “alignment” of the Bill with the provisions of several international treaties. 

All of these provisions  were examined in a recent Joint Academic Opinion released to the public last month. That Joint Opinion concluded that the current Act lacks adequate limitations for purposes to free expression, access to information, education, and to further language and disability rights. “Until the CAB is adopted,” the Opinion finds, “the Copyright Act 1978 will continue to violate the Bill of Rights, and therefore responding to the President’s reservations and finalising the Copyright Amendment Bill is urgent.”

Amending the Copyright Act has become more urgent with the advent of the COVID-19 pandemic. The current Act does not provide for uses of copyrighted materials for online education or to access the holdings of libraries and other institutions of cultural memory digitally, which are now required to continue these essential services in the face of public health related closures. The Bill would remedy these problems by expanding most exceptions to the digital sphere.

According to the Joint Opinion, the exceptions provisions of the Bill ”considered individually and together – are reasonable, justifiable and indeed necessary, and reflect those contained in many open and democratic societies around the world.” The Opinion suggests several technical amendments , namely: 

  • requiring that quotations under Section 12B(1)(a) be “consistent with fair practice”;
  • removing the exception in Section 12B(1)(e)(i) for uses of works not subject to a reservations of rights;
  • revising the translation right in Section 12B(1)(f) to include the full range of purposes for which a lawful translation may be made; and 
  • Adding a clarification to Section 19D that it authorizes cross-border trade by “authorized entities” as defined by the Marrakesh Treaty.

Interestingly, the call for comments does not expressly invite submissions on the “retrospective” royalty right provisions of the Bill in sections 6A, 7A and 8A. These provisions have long been a heart of multinational entertainment industry complaints about the bill. The provision requires that all assignments of copyright by authors and performers include a royalty payment, including current contracts. 

The Joint Opinion notes that the “retrospectivity” in the Bill’s application to current contracts is not unusual. “Many laws, including all minimum wage laws, are ‘retrospective’ in the limited sense of applying to future work under existing contractual or other arrangements,” th eOpinion explains. The Opinion also notes “ample evidence before Parliament of unfairness in current and past contracts between South African creators and distributors of their work,” including in the findings of the 2011 Copyright Review Commission Report. Other copyright laws, including recent European Union legislation, require adequate remuneration of creators. The one change the Opinion suggests to the royalty provisions is to limit the application of the rule to unfair contracts, rather than banning all lump sum payments regardless of fairness of the remuneration.

The Parliament’s call for comments follows the President’s return of the Copyright Bill with reservations about the compliance of some of the Bill’s provisions with the Constitution. This call for comments is limited to the issues raised in the President’s letter. 

Public hearings will be scheduled on Wednesday, 4 August, and Thursday, 5 August 2021, conducted on a virtual platform.

Comments must be submitted no later than Friday, 9 July 2021.

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