Copyright Law Revisions Contested in South Africa

In South Africa, copyright law has become both contentious and political. The Copyright Amendment Bill (B13-2017) was introduced in the National Assembly on 1 May 2017. The intent was to modernize the Copyright Act, which has been in force since 1978. Not only was this written before the internet became such a powerful force, it was during Apartheid. Clearly, it needs to be brought up to date. How, exactly to do that is at the heart of the contentiousness of the current process.

After prolonged debate, the National Assembly passed the bill on 5 December 2018 and the National Council of Provinces passed it on 28 March 2019, when it went to President Cyril Ramaphosa. It languished on Ramaphosa's desk until 6 June 2020, when Ramaphosa returned it to the National Assembly. It is now being deliberated again in the National Assembly.

Ramaphosa cited the following constitutional concerns:

Incorrect tagging: The Bill should be tagged as 76 not 75 since it affects the provinces due to its effect on cultural and trade related matters.

Retrospective and arbitrary deprivation of property: The retrospective provisions could deprive copyright owners without sufficient reason.

Fair use: The framers of the Bill failed to afford the public the opportunity to comment on the elements of Fair Use in the Bill.

Impermissible delegation of legislative power to the Minister: Discretionary powers granted the Minister lack sufficient oversight.

Copyright exceptions: The provisions could violate the right of freedom of trade, occupation and professions and possibly be in conflict with international treaties.

International treaty implications: The Bill might cause economic harm to South African music and film industries.

A detailed description of Ramaphosa's objections is on the GoLegal site. 

International politics got into the fray, with pressure from the U.S. Trade Representative and the EU Commission pressuring South Africa to delay the reforms. The motion picture industry was unhappy with several provisions. The International Intellectual Property Alliance (IIPA), which includes the Motion Picture Association and the Recording Industry Association of America, threatened to move towards revoking South Africa to continue duty-free imports into the U.S. under the Generalized System of Preferences.

Urging the adoption of the current Bill, Sean Flynn, Lecturer, American University, Washington College of Law, refuted infojustice.org/archives/42499, point by point, Ramaphosa's concerns.

IFLA  submitted a comment supporting the position that South Africa should continue to benefit from preferential trade rules with the United States. Secretary General Gerald Leitner weighed in by saying, "It is disappointing to see that learners, researchers and creators in South Africa will need to wait even longer for an already long-overdue reform, and particularly so given that the issues raised in the President’s statement have already been extensively discussed."

Summarizing South African librarians' position,  Denise R. Nicholson, Scholarly Communications Librarian, University of Witwatersrand, decried Ramaphosa's rejection of the Bill, writing, " Without these exceptions, the library and information sectors and education and research sectors will not be able to carry out their statutory mandates in a digital world, nor will they be able to collect and preserve our cultural heritage and documentary records for future generations.  

iEIFL wrote letter to Ramaphosa, setting out how libraries and educational institutions in South Africa, and the millions of South Africans citizens they serve, will benefit greatly from new exceptions designed for non-commercial uses. 

This is an ongoing story. Follow the full timeline for the Bill's movement through the parliamentary process on the Parliamentary Monitoring Group https://pmg.org.za/bill/705/ site.