IN THE SPOTLIGHT: COPYRIGHT AND PERFORMERS’ PROTECTION AMENDMENT BILLS

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IN THE SPOTLIGHT: COPYRIGHT AND PERFORMERS’ PROTECTION AMENDMENT BILLS

• 29 September 2023
• In the Spotlight
• SA Legal Academy

Revised versions of the remitted Copyright and Performers’ Protection Amendment Bills passed by the NCOP on 26 September 2023 have been sent back to the National Assembly’s Trade & Industry Committee for concurrence. This was confirmed in parliamentary papers circulated two days later.

Passed by Parliament in March 2019, the Bills’ ‘B’ versions were returned to the National Assembly in June 2020 – President Cyril Ramaphosa having expressed concerns about the constitutionality of some clauses.

The Bills’ ‘F’ versions reflect changes agreed by the NCOP Committee on Trade, Industry, Economic Development, Small Business, Tourism and Employment & Labour – to some extent informed by input received during public hearings conducted by the provincial legislatures.

This is noting that, in September 2022, the National Assembly passed a ‘D’ version of each remitted Bill incorporating changes made by its committee with the intention of addressing the President’s concerns.

The NCOP committee then considered the revised Bills: a process that included hearings conducted by the provincial legislatures. In the case of both Bills, each legislature submitted a negotiating mandate to the NCOP committee – among other things identifying areas of concern. Several mandates proposed changes to the Bills, only a handful of which were endorsed and adopted by the NCOP committee.

This may have been because members of the provincial legislatures tasked with hearing and considering the views of ordinary South Africans and stakeholders were perceived to have misunderstood certain aspects of the Copyright Amendment Bill in particular. Many concerns included in their negotiating mandates focused on reservations about the impact of clauses underpinned by government’s new policy approach towards copyright, popularly known internationally as ‘fair use’ and originating in the US.

As things now stand, South Africa’s copyright law hinges upon what is known as the ‘fair dealing’ approach, various versions of which underpin copyright law in many countries – including some that were once British colonies.

Although opposition parties represented in the National Assembly’s Trade & Industry Committee may use its next meeting on the Bills to say why they have chosen not to support them, it is unlikely that any further substantive changes will be made. The revised Bills are therefore expected to leave Parliament soon and could even be signed into law this year.

However, the new legislation will require regulations to operationalise government’s new policy approach, as well as other key amendments. These will need to be released in draft form for public comment, finalised and gazetted – a process that could take some time.

Provisions in the Copyright Amendment Bill giving effect to last year’s Blind SA Constitutional Court judgment are expected to come into force before any others, the Court having set 21 September 2024 as the deadline for remedying defects in the Act itself.

Apart from introducing the ‘fair’ use approach to copyright, according to the memorandum on its objects the Copyright Amendment Bill seeks, among other things, to:

• ‘protect the economic interests of (the) authors and creators of copyright works against infringement’
• ‘promote the progress of science, innovation and useful creative activities’
• ‘reward and incentivise (the) authors of knowledge and art’
• ‘make copyright consistent with the digital era, developments at a multilateral level (and) international standards’
• ‘promote accessibility to producers, users and consumers in a balanced manner’
• ‘facilitate commercial exploitation’
• regulate collecting societies, and
• strengthen the Copyright Tribunal.

According to the memorandum on its objects, the Performers’ Protection Amendment Bill seeks, among other things, to:

• ‘address … challenges facing the creative industry … (in respect of) the non-payment of royalties’
• protect performers’ ‘moral and economic rights’, and
• curb piracy.

Please click the links below for more information:

• Copyright Amendment Bill ‘F’ version
• Performers’ Protection Amendment Bill ‘F’ version
• parliamentary papers
• Constitutional Court judgment
• President’s letter giving reasons for the Bills’ remittal

Published by SA Legal Academy Policy Watch

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