Long walk to copyright reform (Pt 2): South Africa’s National Assembly rescinds its decision to pass the Copyright Amendment Bill

After months of discussion, South Africa’s Portfolio Committee on Trade and Industry reached a formal decision on the President’s reservations in respect of the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB). [The Portfolio Committee on Trade and Industry is part of the National Assembly/Parliament]

As readers may know, following the President’s letter indicating reservations about the constitutionality of the two bills [on which see Katpost here], the CAB and PPAB were returned to the National Assembly who is tasked with reconsidering the bills and addressing the President’s concerns.

Last week, the Portfolio Committee unanimously approved a recommendation that the National Assembly should rescind its decision of December 2018 to pass the CAB and the PPAB. The Committee also accepted all of the President’s reservations expressed in his letter. Essentially, the Committee accepted that the National Assembly would:

(i) Reconsider the issue of re-classifying and re-tagging the Bills as section 76 Bills (i.e. the Bills would now also be considered by the National Council of Provinces (NCOP));
(ii) Reconsider and address presidential reservations on the retrospective and arbitrary deprivations of property contained in the Bills;
(iii) Invite and facilitate public participation and comments on the “fair use” provisions of the Bills;
(iv) Reconsider the provisions of the CAB unconstitutionally delegating legislative power to the Minister of Trade and Industry;
(v) Reconsider the provisions relating to copyright exceptions per the President’s reservations and reopen public comments thereon; and
(vi) Reconsider the Bills’ compliance with relevant international treaties.

With this decision, the process of reconsidering the CAB and PPAB and returning the further amended bills to the President for his consideration and possible assent has been launched. [See here for more on law-making process in South Africa].

Already, various individuals and interest groups have proffered opinions on how the National Assembly should proceed in addressing the President’s reservation. For instance, a group of South African Copyright Academics issued a Joint Academic Opinion stating that there was no constitutional need/requirement to re-tag the Bills. In their opinion, even though copyright and other IP matters affect areas like trade and culture, such areas are mere “knock on effects” rather than “direct regulation” that required a section 76 tagging. The Opinion further made suggestions on how the provisions of the CAB may be amended to address the President’s reservations. For example, it was suggested that for the quotation exception in section 12B(1)(a) of the CAB, the “fair practice” standard should be explicitly stated so that the quotation exception will only apply inter alia where the quotation “is compatible with fair practice”. See pages 7 and 8 of the Opinion. 

On the controversial fair use exception, the Opinion indicated, citing various parliamentary submissions and testimonies, that there was adequate public participation in drafting of the clause and that the President’s reservations were unfounded.

This position is contrary to the position already taken by the Parliament to reopen the fair use provision and other copyright exceptions for public comments. While there are other groups such as South African Democratic Union (Sadtu), ReCreate South Africa, the South African Guild of Actors (Saga) and Blind SA that agree with the above-mentioned Opinion, others prefer the position taken by the Parliament to go back to the drawing board and re-engage the public on the Bills.

Whatever side one takes, the CAB and the PPAB are essentially up for discussion and public engagement…again. [Thankfully?], in its decision, the Parliament stated that it will incorporate its previous work on the bills (including previous consultations and submissions) up to the Second Reading of the Bills. The next step will now be to see how Parliament rolls out the public engagement and consultation process this time around... Stay tuned! 

For guidelines on copyright consultations, see here.