Long walk to copyright reform: South Africa’s Copyright Amendment Bill is back to the National Assembly

Last week, South Africa’s President Cyril Ramaphosa exercised his powers under section 79(1) of South Africa’s Constitution to refer the Copyright Amendment Bill (CAB) and Performers’ Protection Amendment Bill (PPAB) back to the National Assembly on the grounds that he has reservations about the constitutionality of the two bills. [Under section 79 of the Constitution, the President must either assent to and sign a Bill passed by National Assembly or, refer it back to the National Assembly for reconsideration if s/he has reservations about the constitutionality of the Bill.] Blind SA has implied that the President’s action was a response to the association’s legal proceedings at South Africa’s Constitutional Court seeking to compel the President to “perform his duties in terms of Section 79 of the South African Constitution” and take a decision on the CAB sent to him since March 2019.

This referral to the National Assembly adds to a long list of “bumps” on the road to copyright reforms in South Africa. Indeed, earlier this year, this Kat had questioned South Africa’s Communication to the World Trade Organisation’s (WTO) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS Council) on the extent of and approach to compliance of the proposed fair use provisions with the three-step test. See here for this Kat’s analysis of the fair use provision.

The (South African) President’s referral to the National Assembly
President Ramaphosa clarified that he received submissions both for and against his assent to the two bills and that he is convinced that several provisions of the copyright Amendment Bill in particular would not pass constitutional muster. He would rather these issues were addressed now than assent to the bill and have it fail if when challenged before the Constitutional Court.

Here are the constitutional issues that President Ramaphosa found with the CAB and the PPAB:

• Incorrect tagging: the Bills were incorrectly tagged as section 75 Bills when they are section 76 Bills that affect cultural matters and trade. Section 76 Bills require a different legislative procedure and such has not been followed with respect to the CAB and the PPAB.
• The Bills will enact law that may result in retrospective and arbitrary deprivations of property. [The “property” here, is copyright].
• The fair use provisions and other limitations and exceptions failed the three-step test and may conflict with South Africa’s international treaties obligations.
• The delegation of legislative authority to the Minister regarding the deprivation of property was outside the scope of the Minister’s powers.

Comment
At the end of the day, the referral has been made and the reconsideration process must now commence. The National Assembly is bound to reconsider the bill as section 79(2) and (3) indicate that there should be procedure for reconsideration and the circumstances in which the National Council of Provinces must participate.

After reconsideration by the National Assembly, the President still has the choice of either assenting to the reconsidered bill or referring it to the Constitutional Court for a decision on its constitutionality. See section 79(4). Further, if the President is not satisfied with the constitutionality of the reconsidered bill and proceeds to the Constitutional Court, there would be an opportunity for the National Assembly to show that the President’s reservations have been addressed, including how and where.

As far as this Kat is concerned, if there is one thing this referral has done, it is to starkly reveal how many international IP treaties that South Africa has signed without implementation: 4 treaties including the WIPO Internet Treaties that entered into force 18 years ago!

Following from this is the fact that South Africa’s journey to copyright reform has no end in sight (yet). And, there may be wisdom in addressing international IP treaties, as they are ratified/signed rather than this attempt to implement all in one fell swoop. The resultant effect being that far-reaching treaties will bog down treaties that address specific IP constituencies such as the visually impaired.