A Narrow Basis for a Decision with Wide Implications

South Africa’s Copyright Amendment Bill represents an important opportunity to bring the country’s laws into the 21st century, and apply international best practice in support of access to education, research and culture. Indeed, the country has been a strong and leading voice in Africa and across the developing world, at the World Intellectual Property Organisation, in support of better rules for libraries and their users, in order to help bridge the development gap.

There clearly has been controversy around this legislation, including efforts to engage foreign governments to call for a halt to the work. This has only underlined the need for the President of South Africa to stand above the noise and take account of the views of all sides in carrying out his duties.

Surprisingly, however, it appears that in the letter signed by the President and addressed to Parliament, returning the legislation for consideration of a number of questions of constitutionality, this may not have been the case. Indeed, it is rather a submission prepared by Steven Budlender and Ingrid Cloete, on behalf of members of the Copyright Coalition of South Africa – an active and vocal player on one side of the debate – which appears to have provided the structure, the content, and in some cases the wording of the letter.

On such an important issue, it is therefore unfortunate that the letter appears to be so narrowly based, with little evidence of having taken account of the opinions of all Senior Counsels, or the whole range of recommendations from stakeholders. Here, we look more closely at the similarities.

Concerning the allegation of incorrect tagging, the President’s letter repeats the arguments made by Budlender and Cloete, not only giving the exact same article references in its claims that the bill concerns trade and culture, and raising the same suggestion that the referral to the House of Traditional Leaders represents a further proof of the cultural nature of the legislation. The only substantive difference on this point is the reference to the Performers’ Protection Bill in the President’s letter, which can be explained by the exclusive focus in the Budlender and Cloete letter on the Copyright Amendment Bill.

Concerning the allegation of retrospective and arbitrary deprivations of property, the President’s letter summarises the case of Budlender and Cloete. The latter claim both that the scope of the provisions for compensation of creators who have been mistreated in the past is excessive, and suggest that the lack of a time-limit in the primary legislation for the operation of the provisions creates uncertainty. The President’s letter adds in short arguments concerning the issues surrounding works with multiple authors, or where copyright owners are non-profit organisations.

Concerning the allegations around fair use, the President’s letter broadly copy-pastes sentences from the Budlender and Cloete submission (paras 47-49) with only the most minor changes.

Concerning the delegation of legislative power to the Minister, the President’s Letter simply summarises Budlender and Cloete’s arguments, including the focus on the treatment of past agreements, the supposed lack of a due process for making regulation, and the specific reference to the role of the National Council of the Provinces.

Concerning copyright exceptions. The President’s letter lists the exact same sections and paragraphs as highlighted in Budlender and Cloete’s submission, including for example the highly questionable assertion that it may be impermissible to extend the quotation right to artistic works in Article 12b(1)(a)(i) – something that is in fact mandatory under the Berne Convention.

The only area where the President’s letter indeed departs from the Budlender and Cloete submission is in its inclusion of arguments concerning incompatibility with international law. These paragraphs are also out of character with the rest of the letter, providing long descriptions of the international legal instruments mentioned, but only the vaguest indication of what concerns may be.

 

In sum, the letter signed by the President appears to represent a summary of the Budlender-Cloete submission on almost all points, and occasionally a direct reproduction of specific sentences. There is little evidence of the President having applied his own mind to the issues or having proposed new reasons for the alleged unconstitutionality of the bills. The only divergences concern inclusion of reference to the Performers’ Protection bill (a topic not covered in the Budlender-Cloete submission), specific additional issues relating to the retroactive effect of laws, and vaguely worded concerns around international law.

We very much hope that the Parliament will, as it has done in the past, continue to show a more balanced and independent approach, focused on promoting the wellbeing of South Africans and the sustainable development of South Africa.

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