Long walk to copyright reform #5A: The Constitutional Court of South Africa has joined the walk?

Earlier this week, South Africa’s National Council of Provinces (NCOP) began the first set of public hearings on the Copyright Amendment Bill (CAB). Readers would recall that last year (2022) in September, a motion was moved and adopted in South Africa’s Parliament to support the adoption of the Copyright Amendment Bill which the President of South Africa returned to the Parliament for reconsideration on the grounds that some of its provisions and the process leading to its earlier passage into law may not pass constitutional muster and may therefore be vulnerable to constitutional challenges. [The Parliament had, following the President’s reservation, reopened areas affected by the President’s reservation, for public comment.]

Watchful readers may also recall that in the same September 2022 in which Parliament passed the CAB and sent same to NCOP for its concurrence (or not), the Constitutional Court of South Africa (ConCourt) issued its decision in Blind SA v Minister for Trade, Industry and Competition & others.

Parliament’s adoption of the revised Bill was not unanimous as various political parties represented in Parliament rejected the Bill. But the majority of MPs (from the ruling party, African National Congress (ANC) supported the Bill and the Bill was accordingly passed.

This two-part post reviews the MPs’ opposition to the CAB vis-à-vis the decision of the ConCourt in Blind SA v Minister for Trade, Industry and Competition. Given that the key concerns against the CAB was that if passed, it may end up before the ConCourt, it appears the Court’s decision in Blind SA v Minister for Trade, Industry and Competition & others may offer a foretaste of what could happen should the CAB end up before that court.

Part one deals with the parliamentary concerns while part two deals with those concerns vis-à-vis the ConCourt.

Oppositions as to content and process…

The minutes of the parliamentary proceedings in which the CAB was passed may be accessed on Parliamentary Monitoring Group.

For the Democratic Alliance (DA), the constitutional issues pointed out by the President have not been addressed and there is an outside influence over the Bill by “special interest, Big Tech pressure groups within South Africa that have a narrow focus on the Bill instead of a holistic, overarching perspective which would be more than helpful”. They further allege that “due process in the formulation of legislation is sacrificed at the altar of expediency”. They complained that Parliament was therefore outsourcing its duty to the NCOP and predicted that the Bill will end up in the Constitutional Court and will be declared unconstitutional. [As readers may be aware, assuming the NCOP also passes the Bill, the President upon receiving this revised Bill for assent has only 2 options: assent to and sign the revised Bill or send it to the Constitutional Court for a decision on its constitutionality. See section 79(4) of the Constitution].

For the Economic Freedom Fighters (EFF), the Bill that was sent to the President in 2019 was a better Bill and should have been passed. In its opinion, the revised bill is a “sell out” by the ruling party, African National Congress (ANC) as the original bill had important aspects (that has now been removed in the revised Bill) that could have seen various multinational companies “release the rights of the actors’ music that has actually got them through exploitation”.

The Inkatha Freedom Party (IFP) supported the adoption of the revised Bill but expressed concern that one of the issues in the President’s reservation – inadequacy of the length of the public consultation/participation period regarding the fair use clause – has not been properly addressed and may expose the bill to legal challenges if passed. [IFP conceded that there were invitations for public comments and submissions but that it was not enough.] [Should IFP be counted with the “ayes”?]

The African Christian Democratic Party (ACDP) rejected the revised Bill and did not support its adoption because it believes that “the introduction of fair use as opposed to fair dealing could potentially plunge the South African online market for creative works into legal uncertainty, increasing the risks of litigation as well as creating entry barriers for new services and creators”. [How, it did not say]. The ACDP reminded Parliament that “in the United States of America, fair use has been developed over a period of a 150 years of jurisprudence, while South Africa does not have this case law history or experience”. [One may wonder, “does a journey of 150 years of jurisprudence not begin with one step case?”]. One other ground that the ACDP raised for rejection of the revised bill was that no regulatory impact assessments on the economic impact of the Copyright Amendment Bill was done. The DA mentioned this as well but conceded that regulatory impact assessments were not obligatory.

Al Jama-ah Party aligned with the political parties that proposed more public participation on the Bill because “creating generational wealth for the offspring of the artist seems to be missing”.

The majority party, the ANC supported the adoption of the revised Bill and pointed out that the amendment process started from the Copyright Review Commission Report in 2011 and that the provisions in the Bill have been proposed to address the absence of necessary protection for artists. The ANC also noted that the Bill caters for persons with disabilities “allowing for the production of certain literary works to be produced without undue expensive costs to them” and that the Bill strikes a “reasonable balance” between the rights of copyright owners and “ensuring that publication of education literary work was not putting up barriers for universities, schools and people with disabilities”.

The concerns of the other MPs may be categorised as “content concerns” and “process concerns”. Where the contents or provisions of the CAB are in issue, would the entire Bill be declared unconstitutional or would it be just the problematic provisions or contents. For process concerns, would any problems with the process leading to the passage of the Bill be enough to render the entirety of the Bill unconstitutional?

The next post sheds some light on these from a ConCourt perspective.

Follow the long walk:
Long Walk to Copyright Reform #1

Long Walk to Copyight Reform #2

Long Walk to Copyright Reform #3

Long Walk to Copyright Reform #4