COPYRIGHT AMENDMENT BILL: UNCERTAINTY ABOUNDS AS GNU TREADS WATER

COPYRIGHT AMENDMENT BILL: UNCERTAINTY ABOUNDS AS GNU TREADS WATER

• 22 August 2024
• Trade, Industry & Competition
• SA Legal Academy

On 21 September 2022, the Constitutional Court declared certain sections of the Copyright Act, 1978, invalid in so far as they limit the ‘availability of works under copyright in formats accessible to persons with print and visual disabilities’. Parliament was given 24 months to remedy defects in the Act’s sections 6 and 7 (read with section 23) pending which the Court ruled that the Act should deemed to include additional provisions spelled out in a new section 13A (exceptions applicable to beneficiary persons). Sections 6 and 7 deal with copyright in literary, musical and artistic works or parts thereof. Section 23 deals with infringements.

At the time of writing, only 29 days were left before the deadline expires.

Among other things, the Copyright Amendment Bill passed by Parliament in February 2024 seeks to respond to the Court ruling. Whether it does so or not is apparently a moot point, there being varying views on the matter among key stakeholders – all of whom are now holding their breath, waiting to see if:

• President Cyril Ramaphosa will sign the Bill into law before 21 September 2024, in which case provisions in the Bill perceived by its supporters to adequately address the defects will immediately come into force, or if
• Parliament will approach the Court for an extension to the deadline.

This is bearing in mind that time has now run out for Parliament to process a committee Bill to step into the breach by responding separately to the Court’s ruling should it seem unlikely that the Copyright Amendment Bill will it be signed into law by 21 September 2024.

On 20 August 2024, when the National Assembly’s Trade, Industry & Competition Committee met to consider a legacy report from its predecessor under the sixth Parliament, attention was drawn to the importance of monitoring this situation. Yet not one member of the committee asked for an update.

Political parties participating in the government of national unity have long held divergent views on the Copyright Amendment Bill’s most contentious clauses – which are underpinned by a ‘hybrid’ version of the ‘fair use’ approach to copyright. Neither is there consensus on this matter among parties outside the government of national unity.

One would therefore have expected at least one member of the seventh Parliament’s National Assembly Committee on Trade, Industry & Competition to ask if:

• the Constitutional Court has been approached for an extension to the deadline
• when the committee Bill drafting process will begin
• how much time is available for the task, and
• if nobody is in a position to answer any of these questions, why not.

As a result, uncertainty continues unabated around South Africa’s intellectual property and copyright policy and the implications of any impending legislative changes for key stakeholders. This despite a recent commitment by Trade, Industry & Competition Minister Parks Tau that industry master plan implementation will be prioritised under the seventh administration.

The Cultural & Creative Industry Master Plan was finalised in 2022, since when nothing of any significance has developed – at least, not officially. One of the Minster’s two deputies, Andrew Whitfield, has repeatedly emphasised the importance of attracting more local and international investment. The broader cultural and creative sector has the potential to do precisely that but needs policy certainty.

The somewhat moribund state in which the government of national unity appears to have been operating ever since being birthed is worrying. Contentious legislation like the Copyright Amendment Bill has simply been left in limbo. Are compromises being made behind the scenes? Have promises of accountability already been broken? The silence is deafening.

• Copyright Amendment Bill’s ‘F version’ now with the President
• Constitutional Court judgment
• judgment summary
• legacy report (page 70)
• cultural and creative industries master plan

Published by SA Legal Academy Policy Watch

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