[Guest Post] Long walk to copyright reform #6: South Africa’s National Council of Provinces participate in the long walk

The IPKat is pleased to host the guest contribution below by Katfriend Sanya Samtani (University of Witwatersrand) on the fate of South Africa’s Copyright Amendment Bill at the National Council of Provinces (NCOP). 

Readers may recall from this Kat’s post back in February that the NCOP had begun the first set of public hearings on the Copyright Amendment Bill (CAB). Sanya and I alongside other academics and researchers are part of an academic expert group converging from time to time to discuss issues regarding the CAB.

Here’s what Sanya writes:

South Africa’s National Council of Provinces participate in the long walk

by Sanya Samtani

Since South Africa’s President returned the CAB back to Parliament in 2020 citing constitutional reservations, the legislative process has advanced. One of the reservations was that the Bill was incorrectly tagged as a Bill not affecting the provinces (a section 75 Bill). Constitutionally, Parliament is empowered to exercise its discretion in responding to the reservations. Citing an abundance of caution, the joint tagging mechanism retagged the Bill as a section 76 Bill, which entailed that once the National Assembly (technically, the relevant Committee – National Assembly Portfolio Committee on Trade, Industry and Competition), completed its process of public participation on the President’s reservations, and tabled its amendments to the CAB to respond to these reservations, the amended Bill would then go to the other house of Parliament, the National Council of Provinces (NCOP), for provincial participation and further amendments, if necessary.

Kat Kouncil...

Accordingly, the CAB is currently being considered by the NCOP’s Select Committee on Trade and Industry, Economic Development, Small Business, Tourism, Employment and Labour. In this post, I provide a short update on this current moment with a focus on public participation and the impact of courts on the legislative process to safeguard the rights of vulnerable groups in society. 

Public participation and its consideration by the Committee 

Between December 2022 and May 2023, the NCOP carried out a large-scale provincial public participation exercise, presenting the Copyright Amendment Bill [B13D-2017] in several locations in all nine provinces. For instance, the Western Cape, Eastern Cape, Limpopo, Gauteng, and Kwa-Zulu Natal held at least five public hearings each in different locations. Some provinces such as Mpumalanga, held virtual and in-person hearings, and all provinces accepted written and oral submissions. Some provinces even accepted WhatsApp voice notes as submissions, in the event that stakeholders could not make it to the meetings. At each public hearing, a representative of the Department of Trade, Industry, and Competition (DTIC) was present, summarising the Department’s policy objectives as well as setting out the key provisions of the CAB. Although the specific procedures differed across provinces, in general, members of the public were permitted to ask questions of the DTIC representative, and given an opportunity to make submissions before the provincial committees. Additionally, the NCOP conducted its own virtual public hearings and invited the public to make oral and written submissions. Public submissions were generally: supporting specific provisions in the CAB; supporting the CAB as a whole; opposing specific provisions in the CAB; opposing the CAB as a whole; or proposing particular amendments to the CAB. This process lays to rest any doubts previously expressed about the extent of public participation (despite the National Assembly conducting several rounds of public participation on the CAB since its introduction, and amending the CAB accordingly). 

These public submissions were the basis for each province’s negotiating mandate, the first step in the process. Representatives of the nine provincial delegations to the NCOP are constitutionally vested with the power to present and discuss amendments to the CAB, but are constrained by the mandate presented to them by the province that they represent. These negotiating mandates, presented before the NCOP Select Committee on 26 May 2023, indicated that out of the nine provinces, one (Free State) was in favour of the CAB passing without further amendments; seven (Eastern Cape, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, North West, and the Northern Cape) were in favour of the CAB passing subject to certain amendments; and one (the Western Cape) was against the CAB passing at all.

As part of parliamentary procedure, Parliament’s Constitutional and Legal Services Office (CLSO) and the DTIC tabulated a detailed response to every issue raised in negotiating mandates. On 13, 14 and 20 June 2023, using this table, the NCOP Select Committee held a vote to determine which amendments should be effected to the CAB. For a particular proposal to be approved (whether it is an addition, deletion, or retention of a clause) five out of nine provincial delegations must vote in favour. Voting took place on every single clause in the CAB, including those clauses that were amended in their amended form. 

The impact of the Blind SA Constitutional Court judgment on amendments 

Readers would recall that South Africa’s Constitutional Court had in Blind SA v Minister for Trade, Industry and Competition & Others unanimously declared that the Copyright Act was unconstitutional to the extent that it limited the rights of people with visual and print disabilities. However, the Court suspended the declaration, and gave Parliament 24 months to remedy the defect while reading in a court-crafted immediately effective interim remedy - an accessible format shifting provision, to rectify the constitutional defect in the meantime. 

One of the salient outcomes of the vote was the Committee’s attempt to ensure that the Blind SA judgment was given its full effect in the CAB. In the judgment’s spirit of immediate redress for people with disabilities [paras 57, 102, 109], the Committee voted in favour of specific amendments to the short title and commencement to bring the definitions and provisions related to people with disabilities in force as soon as the Act as amended is assented to by the President and published in the Gazette. Further, the Committee voted in favour of amendments to relevant definitions (‘authorised entity’) (s 1) and the provision on accessible format shifting for people with disabilities and cross-border exchange (s 19D) to clarify that the provision was immediately operable and not dependent on regulations. Further, the Committee voted in favour of deleting a provision preventing the circumvention of TPMs without authorial permission where the law expressly permitted such circumvention to ensure that people with disabilities face no barriers to utilise format shifting in the digital space (s 28P(2)). This is a clear instance of the collaborative constitution, where ‘each branch has a distinct but complementary role to play’ and provides direction to comparative copyright and human rights scholars in understanding how different institutions impact the development of the law. 

Other salient outcomes included a vote in favour of including ‘equitable remuneration’ wherever reference was made to ‘royalties’ (ss 6A, 7A, 8A and other provisions) to address concerns by several provinces that a one-size fits all approach to royalties is problematic; and a vote in favour of retaining as is, provisions regarding reproduction for educational and academic activities, general fair use with an illustrative list of purposes (similar to the analogous provision in the newly amended Nigerian Copyright Act), temporary reproduction and adaptation (s 12A-D), as well as provisions regarding conservation of collections of libraries, archives, museums and galleries (s 19C). These provisions also all advance constitutional rights and will be of interest to comparative copyright and human rights scholars. 

Next steps

The CLSO will, on 25 July 2023 present the complete list of amendments that were passed (the ‘E-list’). By 5 September 2023, provinces must present their final legislative mandates. In order for the CAB to proceed to the NCOP plenary session for adoption, at least five provincial delegations must vote in its favour as a whole. Should the CAB be passed at the NCOP, it returns to the NA, and then, if passed by the NA, it proceeds to the President for his assent for it to (finally) come into force. If CAB is not passed at the NCOP, or if the NA rejects or amends the CAB, the CAB is referred to a Mediation Committee which has 30 days to decide next steps, else the CAB lapses. This worst case scenario is not the end of the road – it has happened in the past, for instance with the National Gambling Amendment Bill [B27B-2018], that a lapsed Bill has been revived by the National Assembly (only to be rejected again by the NCOP, but that’s a story for another post). 

Author’s note: A version of this update appears on the blog of the Programme for Information Justice and Intellectual Property. The author was an academic advisor to Blind SA in the litigation mentioned above, and participated in the public participation processes of the NA and NCOP as part of a collaboration with a group of academics. 

Follow the long walk:

Long Walk to Copyright Reform #1

Long Walk to Copyright Reform #2

Long Walk to Copyright Reform #3

Long Walk to Copyright Reform #4

Long Walk to Copyright Reform #5A

Long Walk to Copyright Reform #5B