COPYRIGHT ACT: PRESIDENT, PARLIAMENT IGNORE CONCOURT DEADLINE FOR REMEDYING DEFECTS

COPYRIGHT ACT: PRESIDENT, PARLIAMENT IGNORE CONCOURT DEADLINE FOR REMEDYING DEFECTS

• 21 September 2024
• Justice & Constitutional Development
• SA Legal Academy

On 21 September 2022, the Constitutional Court handed down its judgment on a longstanding matter between Blind SA and the Minister of Trade, Industry & Competition et al. It focused on the constitutionality of sections 6 and 7 of the Copyright Act, 1978 (dealing with the nature of copyright in literary, musical and artistic works), read with section 23 (infringement). These sections were found to undermine the rights of people with visual and print disabilities by obstructing their access to published literary and artistic works for conversion into alternative format copies. The judgment allowed Parliament 24 months to remedy the defective sections. Meanwhile, a read-in interim remedy took immediate effect – legitimately facilitating and possibly even shortening the often lengthy access and conversion process.

There are differing views on the precise date and hour at which those 24 months were expected to end. Some commentators believe the deadline expired at midnight on 20 September 2024. Others refer to 21 September as the grace period’s last day. Whatever the case, at the time of writing the Constitutional Court’s interim read-in remedy had either already fallen away or was about to do so in a matter of hours.

As a result, the blind, visually impaired and otherwise print-disabled have lost a hard-won, constitutionally enshrined right to:

• protection from discrimination
• human dignity
• receive or impart information or ideas
• basic and further education, including adult education, and to
• use the language and participate in the culture of their choice.

Once again, it is an offense for blind, visually impaired and otherwise print-disabled people living in South Africa to access published works for conversion into alternative format copies without permission from the copyright holder. Entities and caregivers enabling them to do so are similarly affected.

Not only has Parliament failed to amend the Copyright Act within the given timeframe so that it reflects the spirit and intent of the Constitutional Court’s interim read-in remedy.

President Cyril Ramaphosa has failed to communicate in any way whatsoever his reasons for overlooking his own implicit obligations under the Copyright Amendment Bill’s section 40 (commencement). This is noting that Parliament passed the Bill on 29 February 2024 – at which point it was sent to the President for signature. The Bill has been on the President’s desk for seven months, during which there has been extensive media coverage of varying stakeholder positions on its more contentious provisions and their implications for copyright holders and the users of their work.

Perhaps the President has not been adequately briefed by his legal advisers or kept informed of these developments. But regardless of the reason for his deafening silence, it undoubtedly flies in the face of paragraph 10 of the Government of National Unity’s (GNU’s) statement of intent, which commits participating political parties to ensuring accountability and fostering trust between the GNU and the South African electorate.

The Bill’s sub-clauses 40(2) and (3) seek to ensure that, as soon as it is signed into law, certain provisions will automatically amend the principal statute in keeping with the Constitutional Court ruling. This is because the Bill’s enactment and publication will immediately operationalise:

• its definitions of the terms ‘accessible format copy’, ‘authorised entity’ and ‘person with a disability’, and
• the general exceptions applicable to people living with disabilities (to a large extent freeing them from obligations perceived to obstruct their access to copyright protected works).

If Parliament has already applied to the Constitutional Court for an extension to the deadline, at the time of writing no media statement had been issued announcing that. The President was on his way to New York, where he will lead South Africa’s delegation to the UN’s week-long 79th session. Ironically, the session’s theme is ‘unity and diversity for advancing peace, sustainable development and human dignity, everywhere and for all’.

• Constitutional Court judgment
• Copyright Amendment Bill’s ‘F’ version
• Copyright Act (last updated in 2022) (SAFLII)
• original GNU statement of intent (Polity)

Published by SA Legal Academy Policy Watch

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