Author: Sean Flynn

[Sean Flynn] 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.”

The President of South Africa recently exercised his power to return the long considered Copyright Amendment Bill back to Parliament because of reservations about its constitutionality. Specifically, the South African President declared unconstitutional the provisions in the bill that would require contracts with creators to include royalty payments, the reversion of ownership rights back to creators, and the introduction into South Africa of a fair use right and other common exceptions to copyright. The move was immediately heralded by representatives of collecting management organizations, multinational publishers and music labels as a win for creators. In fact, the provisions declared unconstitutional by the President serve the interests of individual creators vis a vis these well-heeled intermediaries who lobbied extensively against the bill. This note analyzes the specific constitutional reservations given by the President for his referral and concludes that all of them are acutely unsupported.