In a triumph of process and fairness for intellectual property rights in South Africa, President Cyril Ramaphosa has returned the controversial Copyright Amendment Bill and the Performers’ Protection Amendment Bill to the National Assembly for review.
Performers, musicians, actors, writers and publishers alike, have all awaited the President’s decision for a number of months – a decision that has been welcomed by industry representative and chairperson of the Copyright Coalition of SA, Collen Dlamini. “We have always maintained that the bill was unconstitutional because, if passed into law, it would have arbitrarily deprived SA artists and creatives of their access to the rewards of their own intellectual property.”
The Copyright Amendment Bill has long been a source of heated debate and controversy in the protection of intellectual property rights in South Africa. For example, it proposes the adoption of fair use policies similar to those used in the United States – and even then, it cherry-picked the US-style policies without including the necessary checks and balances included in America’s legislation. On the other hand, there were some clauses that provided for royalty sharing by authors and performers with the owners of the copyright, which could be viewed positively as it was not the case in the past.
In writing to the National Assembly speaker, Thandi Modise, Ramaphosa noted his concern relating to the process followed in parliament to pass the Bills – and the numerous submissions made in opposition to the Bills. “These reservations lead me to conclude that in its present form, the Bill may not pass constitutional muster and may therefore be vulnerable to constitutional challenge.”
In further explaining his decision, the President added that:
- The Bills were incorrectly tagged as section 75 Bills when they are, in fact, section 76 Bills that affect cultural matters and trade.
- The Bills will enact law that may lead to retrospective and irrational deprivation of intellectual property, meaning that producers of copyright works will be entitled to a “lesser share of the fruits of their property than was previously the case” and there is uncertainty as to how it would operate.
- The Bills improperly delegate legislative authority to the Minister.
- The Copyright Amendment Bill creates uncertainty by its unlimited retrospective operation, how assignment by multiple authors would work, or what would happen if the owner of the copyright is a non-profit organisation.
In specifying that the Amendments should be tagged as section 76 Bills, the President has propounded that National Assembly will need to design the Amendment on a brand-new canvas, using brand new pencils, because the procedures for section 76 Bills are quite different. National Assembly will have to refer the matter back to the Department of Trade and Industry and the public consultation process will need to begin anew.
Stefaans Gerber | Senior Associate – IP Law