The Copyright Amendment Bill was first published for public comment in July 2015. It went through a long and drawn-out process in the Portfolio Committee on Trade and Industry and the National Council of Provinces. There were public workshops, a multi-stakeholder conference and many calls for submissions from stakeholders. Public hearings were also held in Parliament in August 2017, to give stakeholders a further opportunity to present their views and suggestions about the Bill to the Portfolio Committee on Trade and Industry. In addition, in late 2017, the Secretary to Parliament, in accordance with section 18(1) of the Traditional Leadership and Governance Framework Act, referred the Copyright Amendment Bill to the National House of Traditional Leaders for comment. This resulted in several revisions of the Bill, and the final version was adopted in November 2018.
On 28 March 2021, it will be 2 years since the Copyright Amendment Bill was approved by Parliament and sent to the President for signature in terms of Section 79(1) of the Constitution. The Bill was supported and voted for by the African National Congress, the Economic Freedom Fighters, and some smaller political parties in Parliament. During the long process of the Bill through Parliament, the Bill was supported by the former Minister of Trade and Industry, Mr Rob Davies, and DTI officials, and by the Department of Arts and Culture (now called Department of Sports, Arts and Culture). Support was also given by the Department of Higher Education and Training, and Department of Basic Education, as well as many international, regional and local organisations, institutions, NGOs and other stakeholders.
The Bill was also strongly opposed by many international and local rightsholders, collection management organisations, and various creative groups and industries under the banner of the Copyright Coalition of South Africa.
The President failed to act on the Bill for 15 months, apparently because of pressure from the European Commission and threats to trade agreements from the US Trade Representative if he signed the Bill. However, the President was eventually forced to act when Blind SA challenged him in the Constitutional Court in early June 2020, on the grounds that he had failed to act in terms of Section 79(1) of the Constitution.
On 16 June 2020, the President referred the Bill back to Parliament, with a letter to the Speaker of Parliament, setting out so-called ‘concerns’ about the constitutionality of the Bill, as a reason for the Bill to be reviewed. Despite many and varied submissions from stakeholders across the spectrum during the process of the Bill, including a Senior Counsel’s Opinion on the constitutionality of the Bill, the President seemingly only considered one submission dated 22 February 2019, made by another Senior Counsel on behalf of a group of industry stakeholders who strongly opposed the Bill.
There is much debate as to whether the issues raised in the President’s letter are indeed of a constitutional nature or whether this is just another delaying tactic to avoid any final action being taken on the Bill.
Since June 2020, the Portfolio Committee on Trade and Industry has only met a few times to discuss the Bill and to decide on the way forward. Despite previous amendments to the Copyright Act being tagged as Section 75 Bills, and although a Parliamentary Senior Advocate confirmed in her presentation on 26 August 2020, that the tagging of the Bill as a Section 75 was correct, the Minister of Trade and Industry recommended that the Bill be retagged as a Section 76 Bill to include votes from the Provinces, and to avoid any possible constitutional issues being raised in the future.
There were also discussions about the concern raised by the President that the Bill may not comply with international treaties. This issue should not have been raised as a matter for parliamentary review, as it does not fall under constitutional issues in terms of Section 79(1) of the Constitution, nor does South Africa have any obligation to comply with treaties it has not yet acceded to.
It was also suggested in the Committee’s discussions that the fair use provisions needed to be put out once again for further public comment, as there apparently was no opportunity to comment on the introduction of the words ‘’such as” in the provisions in the final version of the Bill. Interestingly, those exact words were included in the original version of the Bill in 2015, were removed in a later version, and were then reintroduced in the final version of the Bill in 2017. In fact, all stakeholders had ample opportunity throughout the process to comment on all provisions before the Bill was finally approved on 28 March 2019. Although it may give stakeholders another opportunity to raise issues, or to support or object to the fair use provisions, this topic has been discussed ad nauseam. It is unlikely that any new ideas or acceptable solutions will emerge from another round of public hearings and this will further delay the process.
It is 9 months today since the Bill was sent back for parliamentary review. By now one would have expected the birth of a new Copyright Amendment Act!
Unfortunately, the Bill does not appear in the Parliamentary Meetings Schedule until at least mid-April 2021. This is indeed disappointing, especially for blind and visually-impaired persons who continue to be denied access to information via accessible formats, as the current copyright law has no exceptions for them. COVID-19 lockdown highlighted the urgent need for many of the provisions in the Amendment Bill. The ongoing delay in the Bill has perpetuated the omissions and imbalances in the current copyright law. It has exacerbated issues around access to information, provision of teaching and learning material, library and archival services, and digitisation and preservation projects. Ratification of the 2013 Marrakesh Treaty to enable cross-border exchange of works in accessible formats, as well as alignment of the South African copyright law with copyright regimes of progressive countries around the world continue to be delayed.
It has taken since 1998 for the Department of Trade and Industry to consider more balanced provisions for education, research, libraries and archives, galleries and museums, and people with disabilities. That is 23 years!! The Bill addresses many omissions and imbalances in the Copyright Act. It includes many useful limitations and exceptions for the abovementioned stakeholders, modelled on copyright laws of other progressive countries and informed by international conventions, WIPO studies, the EIFL model copyright law, as well as international, regional and local research, reviews, policies and other documents, and most importantly, constitutional obligations.
Many concerns about the Bill can be addressed in draft Regulations, which will be published for public comment once the Bill has been enacted. This was confirmed by the Ministers of Trade and Industry and Arts and Culture at a stakeholders’ meeting in April 2019, where they both “asserted that none of the provisions in the Bill hold the intention to affect the growth of the industries negatively but purport to address the abuses many creators have faced over decades…”
It is time that Parliament addressed the urgency of the Bill and referred it back to the President for his immediate assent or referral to the Constitutional Court for a final directive on the issues raised. Any attempt to further delay the process or return the Bill to the drawing board will be counterproductive and a serious setback to copyright reform in this country.