On 26 September 2023, South Africa’s upper House of Parliament, the National Council of Provinces (NCOP), adopted the highly controversial Copyright Amendment Bill, and the Performers’ Protection Amendment Bill.
The Bills were sent back to the National Assembly (NA) for concurrence on the relatively minor changes to the Bills that NCOP proposes. It is anticipated that the NA would adopt the new, so-called “F-versions” of the Bills, whereafter they will be sent back to President Cyril Ramaphosa for his assent.
The Copyright Amendment Bill’s passage through Parliament since it was introduced in 2017 remains controversial. The Department of Trade, Industry and Competition, which originated the Bill and introduced it into Parliament, has come under heavy criticism for its persistent failure to produce a meaningful economic impact assessment study, as is required under the government’s own SEIAS (Socio-Economic Impact Assessment System) rules.
The overwhelming majority of local and international creative industry stakeholders, including from the music-, book publishing-, film- and television industries, remain opposed to the enactment of the Bill in its present form.
The Bill contains arguably the world’s broadest regime of new copyright exceptions and limitations that would weaken rights holders positions in South Africa to an all-time and unacceptable low. It also contains provisions that would severely curtail contractual freedoms, to the extent that South Africa may no longer be seen as a viable international destination for large creative content production projects, including software, gaming, music, advertising and film and television production projects.
The Bill fails to deliver on its stated policy objectives of legislating for improved legal protections for South Africa’s vulnerable creatives and bringing South African law up to date to meet the challenges of the digital age. It does not introduce effective legal protections for technological protection measures, or meaningful enforcement mechanisms to combat online infringements and content piracy, especially vis-à-vis non-domestic infringers who operate pirate sites in South Africa from servers located in other countries.
President Ramaphosa rejected the Bills in June 2020, due to broad-ranging concerns that the enactment of the Bills may result in breaches of South Africa’s Bill of Rights and Constitution and relevant international treaties. Since the President’s referral of the Bills back to the NA, his reservations have not been fully assessed or subjected to independent legal review, and the Bills that were recently approved by the NCOP are essentially the same Bills that were rejected by the President three years ago.
It is anticipated that the Copyright Amendment Bill will end up before the Constitutional Court, whether through a referral made by President Ramaphosa and/or an independent legal challenge brought by creative industry stakeholders.
For more information on the legal problems identified by members of the Copyright Committee of the South African Institute of Intellectual Property Law (SAIIPL), including two of Adams & Adams’ partners (Werina Griffiths and Stephen Hollis), follow this link to a free-to-read e-book entitled “Copyright Reform or Reframe?”, published earlier this year by Juta: Copyright_Reform_or_Reframe (juta.co.za)