President refers Copyright Amendment Bill to the Constitutional Court

After a seven-year Parliamentary process,  a thorough review following Blind SA’s action against the President in May 2020, and retagging that resulted in a process through the Provincial Legislatures, the Copyright Amendment Bill [B13F-2017] (‘Bill’) was passed by Parliament on 29 February 2024, with majority support from the African National Congress and smaller parties. It was then sent to the President for action under Section 79(4) of the Constitution.  On 10 October 2024, the President elected not to sign the Bill and referred it to the Constitutional Court (‘ConCourt’) to determine if Parliament had adequately addressed his previous concerns in 2020.  

The President’s action is not surprising due to the contentious history of the Bill.  But, it does, however, conflict with his Heritage Day Speech on 26 September 2022, when he said:

“… Struggling artists are taken advantage of and strong-armed into giving up their rights and their royalties.
 
That is why we are redoubling our efforts to preserve our heritage and protect our artists. 
 
Through their songs, dance, paintings, storytelling, sculptures and other form of art, artists carry on their shoulders the heavy responsibility to transmit our heritage from one generation to another. 
 
Artists must therefore be paid their dues.
 
In honour of Solomon Linda and his legacy, let us ensure that our artists do not suffer in their lifetimes and are not condemned to dying in poverty.
 
The new Copyright Amendment Bill passed by the National Assembly at the beginning of this Heritage Month will go a long way in protecting our artists and towards addressing their concerns about the collection and distribution of royalties.
 
We are determined to use the law where necessary to preserve our cultural heritage. 
 
We also need to defend and preserve our indigenous languages.” 
 

His action also conflicts with the South African Government’s decisive rejection of the International Intellectual Property Association (IIPA)’s critique of the Bill in July 2024, when it stated that –

 “South Africa clearly wants to move forward and this direct pushback against the lingering demands of the copyright lobby shows that the time for negotiations and backroom meetings has passed.” And, that “the South African Government doesn’t plan to go back to the drawing board again.”  “Unlike the IIPA, the Government of South Africa believes that its fair use proposal will benefit society as a whole. Better yet, it may even have a positive effect on the economy.”  

Bill’s passage through High Court of SA and ConCourt (2021-2024)

In 2021, facing an ongoing book famine, Blind SA, with assistance from Section 27, took legal action against the President in the High Court of South Africa, Gauteng Division. On 7 December 2021, the Court found the Copyright Act no. 98 of 1978 to discriminate against blind and visually impaired persons.   It ordered a reading-in of section 13 of the Act under the heading “section 13A Exceptions applicable to beneficiary persons” to align it with the Constitution.

On 21 September 2022, the ConCourt handed down judgment confirming the High Court’s order of constitutional invalidity. This reading-in was to endure for 24 months (i.e. to 21 September 2024) to enable Parliament to remedy the defect in the Copyright Act giving rise to its invalidity.  The deadline of 21 September 2024 came and went, but the President did not sign the Bill, effectively rendering the ConCourt’s order and reading-in of Section 13A null and void.  

As a result, on 9 October 2024, Blind SA, supported by SECTION27, brought an urgent case before the ConCourt against President Ramaphosa, the Speaker of the National Assembly, the Chairperson of the National Council for Provinces, the Minister of Trade and Industry and the Minister of International Relations and Cooperation.   This litigation, Blind SA v. President of the Republic of South Africa, was launched to compel the President to sign the Copyright Amendment Bill or to keep the court-crafted exception, Section 13A, in effect until the Bill has been signed.   This case highlights the ongoing struggle for equal rights and improved access for persons with disabilities in South Africa, and the urgent need to obliterate the ‘book famine’ that blind and visually impaired persons have endured for decades.

In response to this matter, on 10 October 2024 the President referred the Bill to the ConCourt in Ex Parte President of the Republic of South Africa, based on concerns he had raised in 2020.   The Presidency stated:

 “President Ramaphosa has indicated to the Constitutional Court his reservations about provisions in the legislation originally drafted and reconsidered by Parliament and has, as a result, requested the apex court for a decision.” 

Consolidated case to be heard on 28 November 2024

The ConCourt must now determine if Parliament has adequately addressed the President’s concerns, focusing only on Sections 6A, 7A, 8A, 12A-D, 19B-C of the Bill. If any are found unconstitutional, the Bill will be sent back to Parliament for corrections.  This means it cannot be signed until the Court rules on its constitutionality and any issues raised are addressed by Parliament. 

In its directions on 22 October 2024, the ConCourt confirmed the cases of Blind SA v President of South Africa and Ex Parte President of South Africa have been consolidated and scheduled for hearing on 28 November 2024.  Consequently, Blind SA has amended its request to seek the continuation of the reading-in of the court-crafted section 13A exception in the current law until the President signs the Copyright Amendment Bill.

The President’s referral to the ConCourt is a crucial and expeditious step in the Bill’s lengthy legislative process.  Stakeholders wait in anticipation for the ConCourt’s decision on the future of the Copyright Amendment Bill.