Denise R. Nicholson, Scholarly Communications Librarian at the University of the Witwatersrand, Johannesburg provides a brief overview of the delays in the copyright reform in South Africa
The genesis of the Copyright Amendment Bill commenced in 2009. In July 2015, Draft Amendments to the Copyright Act No. 98 of 1978 were published for public comment. After many DTI-facilitated meetings and workshops and a multi-stakeholder conference in Gauteng, further calls for submissions were made to the public. Public hearings were held in Parliament in early August 2017 and were well attended by stakeholders across the board. Additional information was invited by the the Portfolio Committee on Trade and Industry (PC) pursuant to the hearings. A small legal team was appointed to assist the PC in addressing technical drafting edits and revising the Bill in line with recommendations made by stakeholders. A further legal team was appointed by Parliament to finalise the Bill. The revised Bill was then submitted to the National Assembly when some minor amendments were made and further public submissions were called for. On 28 March 2019, after further deliberations, the final version of the Bill was approved by the National Council of Provinces (NCoP) and sent to President Ramaphosa for assent.
14 months passed by, while the Bill gathered dust on President Ramaphosa’s desk!
In all that time, President Ramaphosa gave no hint that any part of the Bill might be unconstitutional or had any other issues. He kept silent and failed to act in terms of his obligations in terms of Section 79(1) of the Constitution. He had two options – to sign the Bill and then Draft Regulations would follow, or return it to Parliament for constitutional concerns only. As a result of his dilatory actions, a Constitutional Court action was brought against him by BlindSA, forcing him to act on the Bill.
On 16 June 2020, the President elected to refer the Bill back to Parliament on the grounds of “constitutional concerns”. What is very disappointing and surprising is that the President ignored a Senior Counsel’s Opinion on the Bill, sent to his office, as well as hundreds of submissions, letters, messages, and public presentations in favour of these exceptions throughout the legislative process. Instead, and perhaps under pressure, he sent the Bill back based purely on one submission to Parliament made by a Senior Counsel on behalf of his client, the Copyright Coalition of South Africa. He failed to give his own presidential reasons or opinion as to why issues raised were likely to be “unconstitutional”.
What is quite clear is that his dilatory actions on the Bill were due to unprecedented pressure, with economic implications, from the US Trade Representative and the EU Commission. The USTR and EU Commission were strongly influenced by lobby groups inside South Africa and abroad, and multi-billion-dollar publishing and creative conglomerates that opposed the Bill. They conveniently ignored or omitted to consult any stakeholders who supported the Bill, including educational and research organisations, representative bodies of library and information services and people with disabilities, as well as creators and authors.
Notably and shockingly, the President sent back ALL the limitations and exceptions for fair use, education and research, libraries and archives, museums and galleries (all of which would also affect people with disabilities, creators, authors, computer programmers and analysts, and innovators, as well as open science, open data, open access and open educational resources projects, which the SA Government is promoting and involved in with various international collaborative projects). His claim was that they may be found to be ‘’unconstitutional’’ and/or “in conflict with Berne 3-step test”.
The President clearly did not do his homework as the sections of the Bill that he has targeted as ‘’unconstitutional’’ and/or “in conflict with the 3-step test”, are already in the copyright laws of many countries around the globe. None of them have been found to be in conflict with the Berne 3-step test, nor have they been dealt with through any dispute settlement measures of WIPO or WTO. As far as our own Constitution is concerned, these exceptions speak to the very heart of our Bill of rights, with regard to access to information, education, freedom of expression, non-discrimination, and many other human rights afforded to South Africans.
So what makes them ‘’unconstitutional” now?
Without these exceptions, the library and information sectors and education and research sectors will not be able to carry out their statutory mandates in a digital world, nor will they be able to collect and preserve our cultural heritage and documentary records for future generations. The COVID-19 lockdown in South Africa has highlighted the glaring omissions and barriers in our current copyright law, all of which will be remedied by the provisions in the Copyright Bill.
The Bill updates a very outdated pre-internet piece of legislation drafted in 1978, which formed part of Apartheid legislation. The Bill’s purpose is to bring the legislation into the 21st century, embrace the 4th Industrial Revolution, and align our copyright laws with progressive copyright regimes around the world. The Bill has been hailed as a model for other countries, especially developing countries. A number of countries abroad are considering similar provisions, especially fair use and those for library and archives, and education. They eagerly await the passing of the SA Copyright Bill.
Five years have passed, after a long and drawn out process. Now the Bill is back in Parliament!
Who knows how long the process will take now?
Ongoing delays affect all stakeholders and our economy, and prohibit or restrict libraries and related entities, and educational and research institutions, from carrying out their statutory mandates. Delaying the Bill further delays the Phase 2 amendments of 11 pieces of legislation relating to libraries, archives, cultural heritage, legal deposit, and others referred to in the Third Cultural Amendment Act 2008. It also delays South Africa’s ratification of the 2013 Marrakesh Treaty, which would enable cross-border exchange of works in accessible formats for people with disabilities.
Access to information and knowledge-sharing are sadly at stake for all!
To avoid any further delays, it would be appropriate and expeditious for Parliament either to pass these sections of the Bill once again, and refer them back to the President for assent, or to request the President to refer the Bill to the Constitutional Court for a ruling as a matter of urgency.
