Author: Jonathan Klaaren
Abstract: This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in the Presidency as part of a section 79 process. This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in Parliament as part of a section 79 process. In addition to its focus on the CAB, this paper identifies a set of emerging South African public law issues associated with similarly situated legislation.
After a background section (section one), this working paper addresses the boundaries on such regulations in three parts: constitutional issues (section two), new public law issues (section three), and accepted principles and parameters for drafting regulations in South Africa (section four).
In section five, more specific questions and issues regarding the CAB are discussed. These include the question of whether the regulations can add new definitions of terms (e.g. to the definition of performers to exclude extras) as well as some specific issues raised with respect to the bill by informed critics, such as how the bill (particularly section 22(3)) might be read to apply retroactively and the degree to which the royalty rights in the bill (section 6A, et seq.) and reversion rights may be assigned through contract. This working paper does not give a view on how to resolve legitimate problems, but rather outlines general options available to address such problems in regulations – arguing that such options do exist in regulatory drafting, both in the current period of section 79 consideration of the Bill and, assuming the Bill is enacted, in the period between enactment and its being brought into force.
Citation: Klaaren, Jonathan, “How Far Can Regulations Go? A South African Public Law Perspective on the Potential Response Through Regulations to Legitimate and Genuine Issues in the Copyright Amendment Bill, B-13B of 2017” (2020). Joint PIJIP/TLS Research Paper Series. 54. https://digitalcommons.wcl.american.edu/research/54
