BULLETIN: THE FUTURE OF SOUTH AFRICA’S COPYRIGHT
by André Myburgh
12 April 2024
Six weeks after Parliament passed them for a second time, the President is considering whether to assent to the Bills, a process that is expected to take some months.
The President had referred the Bills back to the National Assembly in June 2020 for concerns about the constitutionality of the “fair use” clause and the extensive copyright exceptions. Now that the Bills with these provisions are back with him, a literal reading of the Constitution says that if the President’s reservations about these provisions have not been accommodated by Parliament, he must not assent to the Bills and he must refer them to the Constitutional Court for a decision on their constitutionality.
This step is unaffected by the upcoming elections. Even if President Ramaphosa were not to decide about how to deal with the Bills before the elections and there were – very hypothetically – to be a new President after the elections, the Bills would still be on the new President’s desk for this decision.
Notwithstanding President Ramaphosa’s referral of the Bills back to the National Assembly and the subsequent 3½ year process in Parliament, the “fair use” clause and the exceptions remain unsupported by impact assessment and largely unchanged. In these circumstances, it can be argued that the President really has no option but to refer the Bills to the Constitutional Court, as we wrote in Chapter 2 of our book Copyright Reform or Reframe? in the light of these provisions’ violation of international law and precedent from existing case law.
The President has by now received numerous submissions from interested parties, some that he must sign the Bills and others that he must send the Bills to the Constitutional Court. Some of these submissions will be simple petitions, others will be detailed on points of law and fact, supported by advocates’ opinions. The President will consider them all, as well as the reports on the process of the Bill issued by Parliament’s portfolio and select committees.
Musicians’ protest and apparent about-turn by the ANC
This orderly and somewhat staid process received a jolt following a plea to the President by legendary singer Yvonne Chaka Chaka that he should not sign the Bills, and protests against the Bills by musicians unions CCIFSA, TUMSA and SACPU.
The ANC arts and culture subcommittee called an urgent meeting with the unions to hear their concerns, ironically because all ANC MPs had not three weeks earlier voted to pass the Bills. Nevertheless, the outcome of this meeting was that Fikile Mbalula, the ANC’s Secretary-General speaking for the ANC, publicly called on the President not to sign the Bills. The unions were promised a meeting with the President two weeks later. That meeting, however, did not materialise.
Mbalula also called on the President to return the Bills to Parliament. This was surprising since the President had already returned Bills to Parliament because of the “fair use” clause, which was the major concern raised by the musicians, and the next step prescribed by the Constitution is referral to the Constitutional Court. Anyway, because the Bills had twice been passed by Parliament, in each case carried just about only by the votes of the ANC, it is hard to imagine what a third round in Parliament would achieve.
No public pronouncements indicate that the ANC has experienced a damascene revelation that the Bills are materially flawed and unconstitutional. On the contrary, the motivation for this change of heart was more likely the prospect of the Bills causing the ANC to lose votes of traditional supporters in the upcoming election in May. Nevertheless, concerns about the Bills that must have existed amongst a number of ANC members have now come into the open.
Other politicians were quick to jump on the bandwagon.
The DA’s Dean Macpherson, one of the leading opponents of the Bills in Parliament, announced that the ANC’s Secretary-General agreed with the DA – surely a fate worse than (political) death for any self-respecting ANC politician.
Former President Zuma, now the head of the new MK party, spoke to a well-attended meeting arranged for the musicians’ unions. It was he who had addressed musicians at a meeting in November 2009 to respond to their concerns and at that occasion had initiated the process that led to the Bills, ostensibly to support their plight. However, his speech reportedly dwelt on unrealistic promises about how, if he were to return to power, Roman Dutch law would be replaced by African law and that everyone who completed matric would go to university. There was no expression of dismay, much less an explanation, about how his good intentions for musicians were hijacked under his watch to serve other ends by the introduction of a specially adapted form of “fair use” (Bulletin 30 November 2023).
Today, three weeks after the ANC’s meeting with the musicians unions, there is still no indication that President Ramaphosa will meet with them and there has been no official comment from the ANC about the prospect of revisiting the Bills. This past weekend, the unions threatened legal action if their demands were not met – a threat that, to this observer, has no prospect of success – and they publicly stated that they had been ‘played and lied to’ about meeting the President.
Officials in the Presidency reportedly told the unions that it will be three to four months before the President will have looked at all the submissions on the Bills. If that report is accurate, it means that the President is following his office’s established procedures for the review of legislation sent to him for assent and that he is applying his mind to the matter, as he must do in terms of the Constitution.
In the media
Music in Africa “SA Parliament adopts controversial Copyright Amendment Bill”, 1 March 2024
https://www.musicinafrica.net/magazine/sa-parliament-adopts-controversial-copyright-amendment-bill
The Star “Artists feel the pinch of new copyright bill” reporting on the letter to the President by Yvonne Chaka Chaka, 4 March 2024
Music in Africa “ANC to meet Ramaphosa over Copyright Amendment Bill”, 19 March 2024
https://www.musicinafrica.net/magazine/anc-meet-ramaphosa-over-copyright-amendment-bill
City Press “ANC’s campaign in trouble as angry artists resist party over controversial bill”, 24 March 2024
https://www.news24.com/citypress/politics/ancs-campaign-in-trouble-as-angry-artists-resist-party-over-controversial-bill-20240324 (subscription needed)
Sunday World “Creatives threaten Ramaphosa with legal action over two bills”, 8 April 2024
https://sundayworld.co.za/news/creatives-threaten-ramaphosa-with-legal-action-over-two-bills
SABC “SA will dump Roman-Dutch Law for African Law if MK wins elections” reporting on former President Zuma’s meeting with musicians, 15 March 2024
https://www.sabcnews.com/sabcnews/sa-will-be-governed-through-african-law-if-mk-wins-elections-zuma/
The Competition Commission had its public hearings on the Media and Digital Platforms Market Inquiry (MDPMI) in March. Newspaper publishers, journalists and digital platforms, including Google, participated. The complaints seemed to move away from copyright, leaving them based on abuse of the digital platforms’ dominant positions in the market. A provisional report is expected in October.
Op-ed by Anton Harber in Business Day “A great deal is at stake in watchdog’s hearings on media industry”, 6 March 2024
https://www.businesslive.co.za/bd/opinion/columnists/2024-03-06-anton-harber-a-great-deal-is-at-stake-in-watchdogs-hearings-on-media-industry/ (subscription needed)
GroundUp “Google and Facebook are killing local news”, 6 March 2024, with letter by this author
https://groundup.org.za/article/how-google-facebook-killing-local-news/#letter-5504
In the same timeframe as the MDPMI, Africa Check set up a program to fact-check political statements in the run-up to the May elections, supported by news media Daily Maverick, Mail & Guardian and the SABC, amongst others;NGO Section 27 (a supporter of the Bills which represented Blind SA in its constitutional challenge against the Copyright Act); and Google:
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ABOUT THE AUTHOR
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: https://juta.co.za/uploads/Copyright_Reform_or_Reframe/