File photo by Delwyn Verasamy/M&G
Years after he sent the Copyright Amendment Bill, and by extension the Performers’ Protection Amendment Bill, back to parliament, President Cyril Ramaphosa has referred the legislation to the constitutional court for certification.
The presidency said on Wednesday that although Ramaphosa had previously referred the bills back to parliament for reconsideration, his concerns regarding potentially unconstitutional provisions were “not fully accommodated by parliament”.
“The president has indicated to the constitutional court his reservations about the provisions in the legislation originally drafted and reconsidered by parliament and has as a result requested the apex court for a decision,” said his spokesperson, Vincent Magwenya.
“President Ramaphosa has undertaken this referral in the form of a letter to the registrar of the constitutional court and in terms of sections 79(4)(b) and 84(2)(c) of the Constitution.”
Ramaphosa’s reservations involve “quite a lengthy list of issues”, Magwenya said.
These include that the restrictions on copyright imposed by section 6(a), 7(a) and 8(a) of the Bill might constitute retrospective and arbitrary deprivations of property in violation of section 25(1) of the Constitution.
These sections confer discretionary powers on the minister and this “may well constitute an impermissible delegation of legislative authority”, Magwenya said.
As such, it risked being unconstitutional.
The reservations also extend to sections 12a to 12d, 19b and 19c, where the Bill sets out copyright exceptions.
These may be ripe for constitutional challenge, including insofar as non-alignment with South Africa’s international copyright obligations.
The Performers’ Protection Amendment Bill reprises the sections in question, hence Ramaphosa referred both pieces of legislation to the apex court.
The to and fro between the president and the legislature has continued for close on four years. He initially sent it back to parliament in 2020.
Legal experts and art commentators have been scathing in their criticism of the copyright Bill.
They warned that the exemption introduced by way of the concept of fair use erodes the rights of copyright holders and risks putting South Africa in breach of international treaties.
The Berne Convention on the Protection of Literary and Artistic Works, to South Africa which became a signatory in 1928, does not expressly recognise the principle of fair use.
Its incorporation into US legislation has sparked much debate as to whether the domestic law is compatible with international treaty obligations.
The amendment Bill leans towards the US model, whereas the Copyright Act of 1978 was based on UK legislation which instead recognises the concept of fair dealing.
Fair use as defined in section 12 of the Bill means that permission is not required for, and copyright will not be considered infringed by, the use of a work for research, private study or personal use, for educational purpose, or for news reporting, satire or parody.
Section 12a(6) also allows fair use for “preservation of and access to the collections of libraries, archives and museums”.
With permission not required, there is no remuneration for the use of the copyright work.
Rights group SECTION27 last week launched an urgent application to the constitutional court arguing that Ramaphosa had failed in his duty to sign the amendment bill.
Magwenya described the step as “a little bit bizarre” given that there are no deadlines in law for the president to assent to legislation.
“To assume that the president must have concluded this against a particular bill is inappropriate in my view because what is that based on and what informs that assumption? There is nothing that informs their assumption.”
The group approached the apex court a few years ago to have sections of the Copyright Act declared unconstitutional in that it required people with visual impairments to obtain the consent of the copyright holder to have the work transcribed into braille.
However, the deadline the court gave to parliament to remedy the defect by September this year, does not apply to the president.