President Cyril Ramaphosa has referred the Copyright Amendment Bill and the Performers’ Protection Amendment Bill back to the National Assembly, based on reservations the President has about the constitutionality of the legislation passed by parliament.
In a statement on Monday (22 June), Ramaphosa said he is concerned that the legislation is open to constitutional challenge.
Ramaphosa highlighted specific concerns with how the bills were tagged, however, he also noted that parts of the bills may come into conflict with existing international copyright regulations.
Ramaphsa said he ‘has reservations that several sections of the Copyright Amendment Bill (which) may constitute retrospective and arbitrary deprivations of property’ in that copyright owners will be entitled to a lesser share of the fruits of their property than was previously the case.
“President Ramaphosa is concerned as well that substantial amendments affected to various sections of the Bill – including Section 12A which deals with the fair use of a work or performance of a work – were not subjected to public comment before the final version of the Bill was published.
“Other reservations cited by the President include copyright exceptions provide for in the Copyright Bill that may constitute arbitrary deprivation of property; may violate the right to freedom of trade, occupation and profession, and may be in conflict with the World Intellectual Property Organisation (WIPO) Treaty and the WIPO Performance and Phonograms Treaty, both of which South Africa subscribes to.
“The President believes that if these exceptions and limitations run the risk of constitutional challenges, they require reconsideration by the National Assembly.”
Depending on any amendments made, these bills may still be assented to at a later date if Ramaphosa deems that highlighted issues have been addressed.
Letter to Ramaphosa
In February a group of prominent South African individuals, trade unions and non-profit organisations urged Ramaphosa to sign the draft Copyright Amendment Bill and Performers’ Protection Bill into law.
The open letter – published by the Mail & Guardian – includes signatories such as the former justice of the Constitutional Court Zak Yacoob and Umunyana Rugege, executive director of Section27.
They argue that the legislation is vital for the promotion of inclusive economic growth, broadening access to education and creating jobs in South Africa.
“There is a great deal of innovation and investment into South Africa that is being deterred by failure to sign the bills,” the letter states.
“Technology companies require a balanced approach to copyright to invest in new growth sectors such as artificial intelligence.”
The groups also argue that the rights of several groups are being denied by the failure to allow the bills to pass into law. These include that:
- Blind and partially sighted people are being denied rights to information;
- Actors, musicians and fine artists are being denied royalty income commensurate with their work;
- Journalists, filmmakers and photographers are being denied the right to own their work and the right to incidental use of materials;
- Learners, students, teachers and academics are being denied the right to access essential educational materials; and
- Writers, authors and composers are being denied the ability to ensure copyrights revert to them in good time.
“We feel it would be harmful and detrimental to our country for you to allow further time to elapse before passing the bills into law,” the letter states.
The proposed legislation is a point of significant controversy because it could damage South Africa’s trade relations with the US as it is seen to violate terms of the Generalised System of Preferences (GSP) under the US Trade Act.
The Office of the United States Trade Representative is now holding public hearings in Washington D.C. on South Africa’s eligibility for the GSP programme.
The country’s eligibility for the GSP programme has been called into question as a result of the passing of the Copyright Amendment Bill in parliament last year.
If South Africa loses its GSP eligibility, the country will potentially lose up to R34 billion in export revenue, the Copyright Coalition of South Africa (CCSA) has warned.
“Our country cannot afford the diplomatic stress, loss of export revenue, and the thousands of jobs that these South African exports create.
“Our current GSP designation allows South Africa preferential duty-free access to US markets for selected export products. Should the upcoming review find that the Copyright Amendment Bill does not adequately protect US intellectual property, South Africa will lose its GSP designation,” it said.
The office of the United States Trade Representative said in October 2019 that it would review South Africa’s eligibility to participate in its Generalized System of Preferences (GSP) based on a petition it had received.
The GSP is the largest and oldest US trade preference programme.
It is designed to promote economic development by allowing duty-free entry into the United States for 3,500 products from the 119 designated beneficiary countries and territories.
To remain eligible for these advantages, beneficiary countries must comply with 15 statutory eligibility criteria that are important to US interests, including taking steps to afford internationally recognised labour rights, providing adequate and effective protection of intellectual property rights, and assuring equitable and reasonable access to its markets.
Under the GSP programme and the African Growth and Opportunity Act (AGOA), sub-Saharan African countries are granted duty-free access to the US market for more than 6,000 products.
These include: meat, fruit, vegetables, precious metals, chemicals, iron and steel products, and a range of manufactured goods.