Malebakeng Forere, Klaus D. Beiter, Sean M. Fiil-Flynn, Jonathan Klaaren, Caroline Ncube, Enyinna Nwauche, Andrew Rens, Sanya Samtani and Tobias Schonwetter
May 10, 2021
We offer the enclosed Joint Opinion on the President’s referral of the Copyright Amendment Bill back to Parliament. We address the President’s reservations about the Bill’s constitutionality, as well his expressed concerns about the Bill’s domestic application of international law. We analyse each of, and only, the specific clauses in the CAB that are mentioned in the President’s letter. The question we ask and answer is whether Parliament should take action to bolster the constitutionality of any of the provisions identified in the President’s letter.
To prepare this Opinion, we reviewed the Copyright Act, the President’s letter, the 2019 Copyright Amendment Bill (B-13B of 2017) (“CAB”), and the analysis of the Panel of Experts appointed to Parliament to review the Bill.
We conclude that the CAB could be interpreted and implemented in a constitutional manner, including with regulatory clarifications. But we recommend that Parliament aid the process of constitutionally implementing the proposed law through the following specific technical changes to the Bill, language for which is included in the Appendix:
- Revise Sections 7A and 8A to require only a “fair” royalty in each;
- Require that quotations under Section 12B(1)(a) be “consistent with fair practice”, as in the current Act;
- Remove the exception in Section 12B(1)(e)(i) for uses of works not subject to reservations of rights;
- Revise the translation right in Section 12B(1)(f) to include the full range of purposes for which a lawful translation may be made;
- Add a clarification to Section 19D that it authorizes cross-border trade by “authorized entities” as defined by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.
