South Africa’s Portfolio Committee on Trade and Industry, (National Assembly), announced to stakeholders today that it is moving the scheduled briefing on the Copyright and the Performers’ Protection Amendment Bills to Tuesday August 18 at 9:00-12:00, via a virtual meeting platform. The meeting is scheduled to include briefings by the Department of Trade, Industry and Competition and by the Parliamentary Legal Advisor on the remitted Copyright and of the Performers’ Protection Amendment Bills. According to the Portfolio Comittee’s announcement, the presentations will discuss “the constitutionality of specific clauses and procedural deficiencies and on the process forward.”

A recent article by EIFL describes the immediate history and process for the Bill going forward:

The Copyright Amendment Bill [B13B – 2017] had been sitting on the desk of President Cyril Ramaphosa for over a year waiting to be signed into law. In June 2020, when Blind South Africa issued a legal challenge over the delay, the President acted. But instead of signing the Bill that had been approved by the legislature, the President used his prerogative to return it to parliament citing constitutional concerns with certain aspects, including new exceptions for libraries, education and persons with disabilities.

The President’s rejection of the Bill is widely seen as the result of pressure by copyright industries, and the threat of trade sanctions and reduced future investment from the United States and the European Union. 

The committee’s recommendations can go one of three ways. The first option is that the Bill is deemed not to be constitutionally defective, and is returned to the President as is. The second option is that any perceived defects are corrected and the amended Bill (approved by the Assembly) is returned to the President for assent. The President has two choices: he can decide to assent to the Bill the second time around (he is not precluded from signing a Bill even if his reservations are not all accommodated), or he can refer the Bill to the Constitutional Court for a decision on its constitutionality.

The third choice open to the legislature is the nuclear option: it finds that the Bill is so defective that it cannot be corrected, and it rescinds its original decision to pass the Bill. It is hard to imagine this happening, though, since the Bill was scrutinized dozens of times in briefings, debates, public hearings and amendments during the two-year parliamentary process. It would also risk setting back much needed copyright reform in South Africa by another generation (the 1978 Copyright Act is 42 years old), in a terrible failure of public policy.

FURTHER READING

Sean Flynn, South African President’s Reservations To Copyright Bill Not Supported By Law, Infojustice, Jul 13, 2020 , http://infojustice.org/archives/42499 

Jonathan Klaaren, What Role Can Regulations Play? A South African Public Law Perspective on the Potential Response through Regulations to Constitutional Reservations about the Copyright Amendment Bill, B-13B of 2017 (2020). Joint PIJIP/TLS Research Paper Series. 54. https://digitalcommons.wcl.american.edu/research/54 

Band, Jonathan, “Analysis of Woods and Myburgh Comments on CAB” (2020). Joint PIJIP/TLS Research Paper Series. 55. https://digitalcommons.wcl.american.edu/research/55

Sanya Samtani, Parliament can uphold the Constitution by passing the Copyright Amendment Bill — again, Daily Maverick, Jul 12 2020, https://www.dailymaverick.co.za/opinionista/2020-07-12-parliament-can-uphold-the-constitution-by-passing-the-copyright-amendment-bill-again/ 

Joint statement by the South African Democratic Teachers Union, Independent Beneficiaries Forum, South African Guild of Actors, ReCreate South Africa, Section 27 and BlindSA. June 16 2020: A Sad Day for South African Youth. http://infojustice.org/archives/42438

Jonathan Band. Comments by WIPO Copyright Director Undermine IIPA’s South Africa Petition. http://infojustice.org/archives/42414