On Monday 20 June 2020 it was announced that the President had referred the contentious Copyright Amendment Bill back to Parliament on the basis that a number of its provisions are unconstitutional. This was 15 months after it had been passed by Parliament and more than three years after it had been formally introduced. It was nine years after the Copyright Review Commission recommended amending the Copyright Act to improve the lot of composers and performers and to reform the practices of collecting societies.

At a presentation co-hosted by the Department of Trade & Industry (the dti) and Google just after the Bill had been introduced, the impression was given that it was a done deal. Not only, was it said, that South Africa’s copyright and performers protection laws would stand up for creators of copyright works, but that the legislation would follow a “users’ rights” agenda that would be for the common good. How could it go wrong?

But go wrong it did, the seeds for the Bill’s destruction having already been planted in its making. The Bill had no real impact assessment under Government’s own internal impact assessment procedures. Enactment of the “users’ rights” agenda included clauses that would result in persons making licensed copies of copyright works share in the license fee that would be payable. (Yes, it was as crazy as it sounds.) It was generally accepted that the Bill was very poorly conceptualised and written.

Parliament’s Portfolio Committee recognised this, but instead of rejecting the Bill outright, decided to correct Bill’s “user” provisions and to remove clauses that would have resulted in expropriation of copyright to the State. But the end result did not come close to capturing all the material errors in the Bill. Worse still, no effort was made to rectify the lack of impact assessment. Petitions by all sectors of the copyright industries were politely heard but ignored, even a privately commissioned impact assessment indicating the Bill’s expected near-destruction of educational publishing and a knock-on impact on the local publishing industry.

The most contentious provision in the public debate was the so-called ‘fair use’ clause, a clause that was initially misunderstood by some as being a principle of being fair to authors and artists. In fact, it is an exception to copyright, a set of principles that will apply to situations when the permission of the copyright owner for the copying of a work is not needed. With permission not required, there is no remuneration for the use of the copyright work in those situations.

The ‘fair use’ clause was but one of eight extensive copyright exceptions, that go way beyond the copyright exceptions that South Africa’s law already has. Therefore, if any of the circumstances in those eight clauses apply, no remuneration is payable for the use of the copyright work. That result is very hard to square with the stated goal of standing up for authors, composers, artists, film producers, musicians and actors.

The ‘fair use’ clause was inspired by a provision in United States law, where the principles relating to this copyright exception have been applied for over two centuries. The argument by the Bill’s proponents was that, if ‘fair use’ works in the United States without being to the unreasonable prejudice of copyright owners, it should surely work in South Africa too.

But the Bill’s ‘fair use’ clause is very different from the US equivalent. South Africa lacks the statutory damages rule in the US, that discourages deliberate mis-reliance on ‘fair use’. In fact, at least two of the Bill’s provisions in the copyright exceptions look like they could have come straight out of Google’s playbook. Google is known to consider copyright rules to hamper its commercial activities and tech companies have relied on ‘fair use’ in the US to bypass copyright rules, sometimes successfully and sometimes not.

South African courts have decided that intellectual property rights, including copyright, are considered as property, and that a copyright exception is an expropriation of property. Legislating a new copyright exception therefore has to be justified under the Constitution’s Bill of Rights. 

South Africa is also a party to international treaties that have South African copyright recognised in most other countries of the world and vice versa. These treaties set out some basic principles that a member state’s copyright exceptions must meet.

With the dti’s Consumer and Corporate Regulations Division not having carried out a proper impact assessment, the Bill’s provisions had not been evaluated against the Bill of Rights and South Africa’s treaty obligations. Notwithstanding warnings to this effect, once the Portfolio Committee had revamped the Bill and some of the amended provisions put out for public comment, it was rushed through to be passed before dissolution of the Fifth Parliament in early 2019.

As a near-final step, the Portfolio Committee appointed a panel of experts, that included me, to review the Bill. The Committee did not want commentary from the experts, all they wanted was a mark-up of a document with the then-current version of the Bill. 

However, as I wrote to the Committee in my advice, ““The legal issues raised by the Bill and by the process it took to get to this point, are substantial and material, whether from the perspective of compliance with the Constitution, South Africa’s meeting of its obligations under the international treaties to which it is a party, and the conceptualisation of its provisions arising from the policy considerations that underly it. This advice shows that the Bill has material flaws in all these respects, very few of which can be corrected by mere changes in the wording of the clauses of the Bill.”  All four experts drew the Committee’s attention to some very serious deficits of the Bill, many of which were subsequently raised in the President’s rejection of it.

As one of the experts, I was especially critical of the extensive copyright exceptions, analysing each of them and saying in summary, “the ‘fair use’ clause proposed in the Bill is in reality ‘’fair use’ on steroids’, overreaching into the exclusive rights of copyright in a manner which has significant consequences in its undermining of the exclusive rights of copyright. This conclusion, together with other factors, is relevant in determining whether the new copyright exceptions meet Constitutional muster.”

The copyright exceptions, clearly important to the “users’ rights” agenda, were not the only provisions in the Bill.  The Bill also had provisions designed to attract specific interest groups, like an all-encompassing exception in favour of the disabled, a statutory claim to royalties for creators and performers from the use of their copyright works, and a resale royalty right for the fine arts. Although the goals of these individual provisions generally had broad support, there were serious concerns about how they were drafted. Even more seriously, they were planned as a take-it-all-or-lose-it-all package inextricably coupled with the Bill’s other contentious and expropriative provisions.

Notwithstanding all of this, I was dumbfounded when, in my presence, the dti’s Consumer and Corporate Regulations Division reported to the National Council of Provinces that the panel of experts had “cleared” and “verified” key provisions of the Bill. This statement was clearly false. A letter I wrote to the Minister, the dti and the Select Committee reporting on this untruth received no reply and had no impact on the process to pass the Bill in Parliament.

Since copyright is mutually recognised between most countries in the world through a network of treaties, it is not surprising that the Bill would raise alarm on the international scene. Concerns were raised about its breach of those treaties and its infraction of undertakings given in return for trade benefits unilaterally given to South Africa by the United States. The impact that the passage of the Bill would have on South Africa’s access to lucrative trade markets in the industrialised world might have been a factor in the President’s decision, but does not detract from the fact that swathes of the Bill are unconstitutional and in breach of South Africa’s treaty obligations.

The wails of protest following the President’s decision latched on to the plight of the visually-impaired and screen actors, but also on to doubtful claims by mostly American academics and activists about the benefits and legal acceptability of ‘fair use’ (while understating the importance of the Bill’s clause being so different from the US version) and the wide-ranging copyright exception for educational institutions.

Activists supporting the Bill have already been shown to have deliberately changed their argument from supporting the “users’ rights” agenda to claiming that the same provisions somehow benefit creators of copyright work, and inflated their support amongst the South African public and creative communities. Nevertheless, they continue to be vocal, many coming up with convenient but false arguments that somehow apartheid is responsible for all of this.

Closer analysis shows that these activists have never shown how the supposed benefits of the Bill would work, preferring to stick to sloganeering. When they do try to promote their version of the Bill’s provisions, their analysis is easily shown up as being woefully inadequate.

The President’s concerns that many of the Bill’s provisions are unconstitutional now have to be considered by the National Assembly. A sober assessment of the Bill and the President’s concerns should result in Parliament rejecting the Bill as unfixable. That would mean, however, that this misadventure has cost the urgently-needed reform of copyright law nine years since the Copyright Review Commission released its report. If the Bill is rejected, there are mechanisms with which some of the uncontentious policy goals could be legislated and implemented quickly, but it remains to be seen whether this will be done.

If anything, the Copyright Amendment Bill has shown that legislating cannot be undertaken based on uninformed prejudice, activist slogans and gut-feel solutions. Parliament and the Government have to follow the Rule of Law in legislating, and this they can only do if their decisions are based on fact, they give the public the opportunity to participate in a meaningful manner, and they provide informed leadership.  In his rejection of the Bill, President Ramaphosa has done just this.

Written by André Myburgh, a specialist legal consultant in copyright law and policy internationally based in Switzerland. He is a South African national and qualified as a South African attorney and trademark practitioner.

This article was first published in SA People