Issued by Alfred Mahkuntsu on behalf of the FW de Klerk Foundation

Introduction

In terms of section 79 of the Constitution, once both houses of Parliament have passed a proposed law (a bill), the President must either assent to and sign the bill (in which case it becomes law), or if s/he has reservations about the bill’s constitutionality, refer it back to Parliament for reconsideration. If, after Parliament’s reconsideration of the bill, the bill still does not fully accommodate the President’s reservations, s/he can refer the bill to the Constitutional Court, which must then decide whether the bill is constitutional or not. If the Constitutional Court decides that the bill is constitutional, the President must assent to and sign it, making it law.

On 10 October 2024, President Cyril Ramaphosa referred the Copyright Amendment Bill [B13F-2017] and Performers’ Protection Amendment Bill [B24F-2016] to the Constitutional Court. Both bills were reconsidered after having been referred back to Parliament by the President in June 2020. Parliament passed both (reconsidered) bills on 29 February 2024. This move highlights what powers the president has when he is concerned about a bill’s constitutionality and it also underscores the judiciary’s critical role in enforcing the Supremacy of the Constitution.

The Problems the Bills Aim to Fix

The Copyright Amendment Bill and the Performers’ Protection Amendment Bill are aimed at ensuring that creators and performers receive fair compensation for their work, especially in the context of digital content and online distribution. The bills do this by amending the Copyright Act,1978, and Performers’ Protection Act, 1967, respectively (hence the bills’ names).

The current Copyright Act does not protect the rights of creators as they do not receive a fair share of the royalty received for their work, making them susceptible to exploitation. Similarly, the Performers’ Protection Act provides limited protection with a term of only 50 years – which subjects performers to unfair compensation as they are not compensated for the use of their work after the protection period has lapsed.

Moreover, in the case of Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33, the Constitutional Court held that the Copyright Act infringes the rights of blind or visually impaired people by not allowing them to use copyrighted works without the permission of their owners. It thus also needs to be amended to be constitutional.

How the Bills Propose to Address These Issues

The Copyright Amendment Bill introduces several key changes, such as:

• Protection of Performers’ Rights (clauses 6A and 8A). This aims to ensure that performers are adequately compensated and respected for their contributions.
• Fair Use Doctrine (clause 12A, 12C and 12D). The Bill introduces the fair use doctrine to allow for a wider range of uses, such as for education and research.
• Provisions for Persons with Disabilities. Clause 19D, provides an exception for people with disabilities to make format copies of the copyrighted work without the permission of the owner.
• Resale Royalty Rights (clause 7A to 7F and 9B). The resale royalty right is proposed to enable creators to receive a portion of their work each time it is resold in the market.

The Performers’ Protection Amendment Bill focuses on enhancing the rights of performers by:

• Ensuring they receive royalties for the use of their performances. This is specified in clause 3, which establishes that performers must be compensated whenever their work is used commercially.
• Protecting performers’ moral and economic rights (clause 2). The economic rights ensure that performers receive a share of the royalty generated. On the other hand, moral rights allow them to claim authorship of their performances and to object to any modifications that could harm their reputation or integrity.

Both bills propose introducing a more robust royalty framework. This ensures that authors, musicians and performers get fair compensation when their work is used commercially, including by streaming services. Additionally, the Performers’ Protection Amendment Bill will ensure that performers are fairly compensated when their work is broadcasted, reproduced or used for an extended period.

The Copyright Amendment Bill also introduces a “fair use” doctrine, allowing the public to use copyrighted content for purposes like research and education without the need for permission from the copyright owner. Moreover, people with disabilities such as the blind or visually impaired are often required to obtain permission for the use of copyright when they translate work for their specific needs. The Bill proposes provisions that will provide copyright access to people with disabilities to produce publications in accessible formats.

Constitutional Concerns Regarding the Proposed Solutions

Despite Parliament’s reconsideration, President Ramaphosa has referred both bills to the Constitutional Court due to significant constitutional concerns. One of the major constitutional issues centres on the vagueness and ambiguity of some of the bills’ key provisions, especially the Copyright Amendment Bill’s proposed “fair use” doctrine.

Section 25 of the Constitution protects individuals against arbitrary deprivation of property. The changes proposed in the Copyright Amendment Bill, particularly those that expand fair use provisions, could be seen as infringing on creators’ property rights over their works. By allowing broader access to copyrighted materials without compensation, creators may be deprived of their rightful income from their intellectual property. This ambiguity could lead to legal uncertainty, leaving courts to interpret these provisions on a case-by-case basis, potentially limiting content access.

The bills must also adhere to South Africa’s international treaty obligations, such as those under the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Section 231 of the Constitution states that international agreements bind the Republic once they have been approved by Parliament. Both bills were approved by the National Assembly on February 29, 2024, and are now awaiting presidential assent. South Africa is obligated to ensure that its domestic laws comply with these treaties. Owen Dean argues that some parts of the bills might not fully align with the international agreements that South Africa has signed. The proposed amendments may conflict with these treaties by weakening protections for rights holders. This could then lead to legal issues with other countries.

Why This Matters to South Africans

The issues surrounding these bills may seem complicated, but they do actually affect all of us. First, if the bills are reworked correctly, they will allow people in the education sector, such as students and teachers, to have better access to learning materials. Schools and universities might be able to use copyrighted content more freely for educational purposes, making learning more affordable and inclusive. For instance, the Copyright Act’s current provisions limit access to such work in an accessible format. The outcomes of these legislative reforms will determine whether South Africa can provide inclusive educational opportunities, especially for people with disabilities. However, if the bills are too restrictive, it could mean fewer resources and higher costs for students, especially those who already struggle to gain access to the right materials.

Moreover, South Africa has a rich culture of music, art and storytelling. These bills will ensure that artists, musicians and writers get fair payment for their work, which could have a  great impact on their livelihoods. If creators are paid fairly, it encourages more creativity and keeps our culture alive – i.e. it promotes sustainability. However, if the laws end up being too strict or confusing, they could make it harder for new artists to share their work and get noticed. This could affect not only South African artists, but all who enjoy South African music, films and books.

Furthermore, these laws also touch on our basic rights, like freedom of expression. We all benefit from the free flow of information and ideas, whether it’s in the news, in schools, or on social media. If the new rules limit how we can use or share content, it could affect how we learn, communicate and stay informed. That’s why getting this balance right is so important. Lastly, this is about fairness and making sure the laws serve everyone, not just big companies or a few select groups.

Conclusion

The Copyright Amendment Bill and Performers’ Protection Amendment Bill represent a critical opportunity to modernise South Africa’s intellectual property laws. However, they also pose significant constitutional challenges that must be carefully navigated. As the Constitutional Court considers these bills, all South Africans have a stake in the outcome, as their impact will be felt across society, from classrooms to creative studios and beyond.