As early as 2022, a group of South Africa’s most eminent legal experts in copyright law called for the speedy enactment of the Copyright Amendment Bill.
On 15 October, President Cyril Ramaphosa referred the Copyright Amendment Bill and Performers’ Protection Amendment Bill to the Constitutional Court for a ruling on their constitutionality.
This came after Ramaphosa had initially requested Parliament to consider the Bill’s constitutionality.
The Constitution provides that if the President still has concerns after Parliament has reconsidered a Bill, the President can refer it to the Constitutional court for a decision on the constitutionality of the draft law.
In November 2022, a group of legal academics, including Enyinna Nwauche from the Nelson Mandela School of Law University of Fort Hare, wrote and published two legal opinions supporting the Bill’s constitutionality in the Potchefstroom Electronic Law Journal.
South Africa is reforming its copyright law to update and align it with constitutional rights and existing and prospective international treaty obligations.
The legal opinions also stress the importance of copyright reform, as envisaged in the Bill, to bring South African copyright law into the digital age and realise several constitutional rights, including the rights to education, cultural participation, language, freedom of expression, and access to knowledge for everyone without discrimination.
In their article, the authors explained that Ramaphosa received the Bill for the first time on 28 March 2019.
“According to the Constitution, he was bound to either sign the Copyright Amendment Bill to make it law or refer it back to the National Assembly in the event of reservations about its constitutionality. Approximately 15 months later, in May 2020, Blind SA, a national organisation that advocates for the rights of people living with visual and print disabilities, filed a lawsuit against the President for “unreasonably delaying” the CAB from coming into force on the basis that this led to a persisting violation of their rights of access to information in accessible formats. This was exacerbated during the Covid-19 pandemic, which affected South Africa from March 2020.
“In the lead-up to the lawsuit, it had been reported that the President was pressured by the industry lobby and, consequently, international trade partners – in particular, the European Commission and the United States of America – not to sign the [Bill],” the article continued.
The Blind SA lawsuit was never set down for hearing as, in the interim, the President decided on the Bill in June 2020. The authors explained that the President did not assent to the Bill but referred it back to Parliament, citing constitutional reservations. The authors continued that Parliament is constitutionally bound to consider these concerns but is free to determine the Bill’s constitutionality.
Long delays followed.
The article highlights that people with disabilities have remained deprived of access to educational and cultural materials as the current Copyright Act of 1978 does not have an accessible format-shifting provision.
Further litigation followed, and in 2021, the Pretoria High Court held that the current Copyright Act was unconstitutional.
Since then, however, the group of academics has offered two legal opinions to Parliament to support the argument that the new Copyright Bill was constitutional.
Their article also highlighted the reasons why the current law is unconstitutional.
These include the unfair discrimination against persons living with visual and print disabilities.
Additional constitutional concerns are: It does not permit the creation of accessible formats of works under copyright; it does not permit the use of works to the degree required for freedom of expression, in violation of the right to receive and impart information; it inhibits access to educational materials in the modern world, including through the digital environment, in violation of the equal right to basic and further education for all, including in languages of the student’s choice, it does not allow for materials to be translated into underserved languages, in violation of the right to use languages of one’s choice and participate in cultural life, it does not protect the rights of authors, performers, and other creators to fair remuneration and fair contract terms, as needed to promote the right to dignity and the principle of decent work.
They further argued that the current Bill promotes the Constitution and the Bill of Rights by amending the deficient Copyright Act with provisions modelled on those found in other open and democratic societies.
“Until the Bill is adopted, 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.
“We conclude that the Bill could be interpreted and implemented in a constitutional manner, including with regulatory clarifications. But we recommend that Parliament aid the process of constitutionally implementing the proposed law through the following specific technical changes to the Bill,” the article concluded.
Read full article: https://www.saflii.org/za/journals/PER/2022/66.html