Copyright and Performers’ Protection Amendment Bills scheduled for adoption on 29 February 2024


by André Myburgh

19 February 2024

The Bills are scheduled for concurrence by the National Assembly on 29 February.  With the Portfolio Committee having recommended it in its report, concurrence should be a formality, notwithstanding passionate and disapproving statements that can be expected from opposition MPs during the debate.  With only ten days to go, it seems that only a bout of Leap Year Madness could change the plan.

In her press release announcing that the Bills will be sent to the National Assembly for consideration and adoption, Ms Judy Hermans MP (ANC) said they both had had extensive public participation since being introduced in Parliament.

From the National Assembly, the Bills go to the President’s desk for signature.  Having referred the Bills back to the National Assembly in June 2020 for reservations about their constitutionality, he will now have to consider whether his reservations have been accommodated. 

A couple of them were dealt with, notably the withdrawal of the simplistic attempt to rectify past contracting practices by retrospective provisions in the unwaivable statutory remuneration entitlement of authors and performers, and the re-routing of the Bills for comments by the provincial legislatures.  Other concerns have arguably not.

It can be expected that there will be a lot of pressure on the President to sign the Bills.  On the other hand, he will also receive petitions to refer the Bills to the Constitutional Court for his reservations that have not been resolved. 

Past experience shows that this Presidency has taken its responsibility seriously.  It took more than 14 months for the President to consider the Bills in the last round, so it is reasonable to expect that it will take some time before his decision is announced.

The Portfolio Committee meeting on 14 February 2024

As with its previous meeting on 6 February when it voted against public participation on the Minister’s unprecedented power to establish “standard elements”, the Portfolio Committee’s vote on its report to approve concurrence was split along party lines, with the ANC members in favour, the ACDP, DA and FF+ members against, and the EFF absent.

In the Committee report, the opposition members noted their dissenting votes and their minority views, again raising the lack of sufficient consultation.  To recap the report in the last Bulletin, not only did the majority of the Portfolio Committee refuse consultation on the new “standard elements” clause (to replace the “standard and compulsory terms” wording), but it also voted against more public consultation. 

That, in their view, there had been enough public consultation on the Bills is, however, not the test set by the Constitutional Court in the SAISI case.  The clause’s unintended consequences and the decision not to allow consultation for something that might have been easily resolved, may well undo the very purpose it intended to achieve.

That decision was, according to the last Bulletin, the first candidate for a mistake in the F-Bills that will have constitutional implications. 

Opposition members’ questions alludes to a second candidate:  that by a revision of the definition of “performer” to exclude “extras, ancillary participants and incidental participants”, instead of excluding extras in audiovisual works from the new statutory remuneration and moral rights provisions, the Bills may have had the unintended consequence of depriving certain musical and film performers of existing rights that they had in law. 

Although it is true that many “extras, ancillary participants and incidental participants” will not meet the existing definition of “performer”, the DTIC’s answer was that the Beijing Treaty allows this explicit exclusion.  However, that Treaty only seeks to protect performers in audiovisual works and it only became part of international law in 2012.  On the other hand, performers – that could include some who are described as “extras” or “ancillary participants” – have had rights to object to the fixation of their works in records and films and to demand payment for their broadcast for commercial purposes in terms of the Performers’ Protection Act since 1967 and musical performers have been entitled to share in needletime royalties under the Copyright Act since 2002.

A simple redraft would have corrected this error.  However, due to the intransigence of the majority of the Portfolio Committee, the Bills will go to the National Assembly with yet another instance of deprivation of economic rights, ironically to the detriment of the lowest paid and least protected performers. 

The big picture

These errors notwithstanding, the big picture remains that the Bills, with their expanded “fair use” provision and wide-ranging exceptions to the rights of authors, performers and copyright owners, of which most seem to be based on whim and not on need, research or impact assessment, along with other contentious provisions, raise serious questions about their constitutionality and compliance with international treaties.

In the media

Parliament’s press release “Trade, Industry and Competition Committee Adopts Copyright and Performers’ Protection Bills Received from NCOP for Concurrence”, 15 February 2024

Peter Bruce in Business Day “SA’s biggest industrial flaw: the Patel availability factor” (also see the comments) 15 February 2024 (subscription needed)

Prof Keyan Tomaselli and Hetta Pieterse in University World News Africa Edition “Copyright Amendment Bill ‘bad news’ for South Africa” 8 February 2024

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André Myburgh is a South African attorney and admitted as a solicitor of England and Wales.  Based in Switzerland, he is an independent consultant and a specialist in intellectual property law, specifically copyright and trade marks, and is one of the lead authors of Copyright Reform or Reframe?, a comprehensive legal analysis of most of the new provisions of the South African Copyright and Performers’ Protection Amendment Bills, available here:

Book discussion and interview available here: