The fatally flawed Copyright Amendment Bill continues to face late changes in the National Council of Provinces, dragging the linked Performers’ Protection Amendment Bill with it.  This comes three years after the President referred the Bill back to the National Assembly for concerns about its constitutionality.

Latest indications are that changes will be made to the Copyright Amendment Bill because of legislators’ discomfort with the “fair use” clause and some of the broad copyright exceptions, and because the National Assembly had introduced new erroneous provisions and had not waited for the outcome of a Constitutional Court case.  Instead, it pushed the Bill through for a second time in September 2022 over numerous objections. 

More changes could result from a surprising recommendation by the Department of Trade, Industry and Competition (DTIC) to the National Council of Provinces that an independent regulatory impact study be carried out because of "many concerns about the absence of a meaningful economic impact assessment".

These concerns had been about the Bill’s evaluation under Government’s internal socio-economic impact assessment rules, called “SEIAS”.  The DTIC’s recommendation comes very late in the process.  Under the SEIAS guidelines, a report supporting a Bill should be presented to Cabinet before a Bill is introduced to Parliament. 

Revelations in the Western Cape parliament showed that a SEIAS report was likely not done at all, and that research supposedly supporting the Bill’s expropriative copyright exceptions, including the American doctrine of “fair use”, did not exist.

Cabinet approved the Bill to be introduced to Parliament on 8 June 2016.  A media statement by the DTIC (then known as “the dti”) on 12 July 2016 forecast that "the two bills, if properly implemented will grow the economy by not less than 5%", citing "the study conducted by the dti and the World Intellectual Property Organisation (WIPO) on copyright-based industries".

It appears that no such study exists.  This statement also omits any mention of an impact assessment (SEAIS or otherwise) presented to Cabinet.  The media statement has been removed from the DTIC website.

It is likely that the “study” referred to is a misleading description of a study of South Africa’s copyright-based industries carried out by the University of Pretoria for the DTIC in 2011.  It predated the first public draft of the Bills by four years and therefore could not have assessed them.  This study was South Africa’s contribution to a compilation of some national studies on the economic contribution of copyright industries published by the World Intellectual Property Organization.

The DTIC’s failure to submit a SEAIS report to Cabinet not only flouted internal Government procedures, but breached an undertaking its officials made to stakeholders in August 2015 at the end of the public consultation of the draft of the Bill.  

In another unmet undertaking, the Bill was not presented to Nedlac before it was introduced to Parliament.  Instead concerned industry stakeholders had to make do with informal roundtables with DTIC officials facilitated by Nedlac’s Business Convenor between August and October 2016.

It took a year after Cabinet’s approval for then-Minister Rob Davies to introduce the Bill to Parliament, on 16 May 2017.  That year was largely characterised by silence from the DTIC, yet there are pointers to various questionable machinations by DTIC officials around the Bill during that time.

The first was DTIC officials’ response to enquiries by concerned stakeholders that the SEIAS report and research supporting the copyright exceptions – neither of which appeared to exist anyway – were “confidential.”  DTIC officials maintained this position until as late as this year.

The second is that the Bill that was introduced in May 2017 was different from the Bill approved by Cabinet the year before.

The formal notice of the intention to introduce the Bill on 5 July 2016 and DTIC’s media statement of 12 July 2016 both referred to the Bill’s "protection of copyright in craft work" and "promotion of broadcasting local content", which were features of the draft of the Bill in 2015 but omitted from the version of the Bill (marked “confidential”) discussed in October 2016 and the version introduced to Parliament in May 2017.  There are also changes between the October 2016 version and the final Bill, both substantive and numerous smaller textual and numbering changes. 

The third, contradicting the second, was the insistence by DTIC officials, in response to enquiries by stakeholders from August 2016 onward, that the Bill could not be changed because it was supposedly with Parliament. Needless to say, in Parliament there was no sign of the Bill until it was introduced the following year. 

A fourth, contradicting the third, was statements made by DTIC officials over the same period that the Bill was awaiting certification by the State Law Adviser for which changes needed to be made.    

It is not as if the responsible DTIC officials were unfamiliar with the process. The same team dealt with the introduction to Parliament of the Performers’ Protection Amendment Bill in December 2016 and the controversial Intellectual Property Laws Amendment Bill in 2010 (that was passed by Parliament after the President’s referral-back for concerns about the constitutionality of its process, and which, despite having been signed by the President in 2013, has never been put into force).

Despite all the changes the DTIC made to the Bill after Cabinet’s approval and before its introduction to Parliament, it still retained provisions that were incoherent, like one that persons making licensed copies of copyright works should share in the license fee for their copies, that had to be replaced by the National Assembly.

All this begs the questions: what was it that Cabinet approved and based on what motivation they approved it, and how did could the State Law Adviser have certified the Bill.  The chair of the Western Cape Parliament’s standing committee recently stated that the DTIC misrepresented the Bill’s process to Parliament and the public in a way that draws the whole process into question and warrants full disclosure by the Minister and the DTIC. 

This conclusion is inescapable.  Questions have to be asked.  Is this the result of officials having been allowed to go on a frolic of their own?  Or is it a deliberate attempt to turn copyright rules on their head whilst hiding the absence of rational support for its provisions from the public under groundless declarations of confidentiality?  Either way, how could the Bill have come as far as it did? 

The Bill is not fit to amend South Africa’s copyright law.  It should instead be the subject of an enquiry about the integrity of its legislative process.

Written by André Myburgh, an attorney who specialises in copyright policy and legislation. He was a member of the Portfolio Committee’s panel of experts for the Copyright Amendment Bill in 2018 and is the lead author of a book on the topic, Copyright Reform or Reframe? (Juta, 2023).