Tag Archives: South Africa

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.

Making Progress: Welcome Vote in South African Parliament on Copyright for Libraries

After years of discussion, the South African copyright amendment Bill was adopted by the South African National Assembly on 5 November. The process is not completely over, as the Bill will now be sent to the National Council of Provinces for concurrence, which is likely to happen early 2019.

As it currently stands, there are very positive provisions for libraries and other cultural heritage institutions, some of which are particularly positive. There are significant improvements such as the adoption of fair use, strong exceptions and limitations for libraries, archives, museums, galleries and educational institutions, provisions on Marrakesh and orphan works and a national open access policy.

These very positive results would not have been possible without the constant advocacy work by many librarians in the country, among which Denise Nicholson, expert advisor of the Copyright and Other Legal Matters Committee at IFLA. They engage with decision makers to insist on the need for adequate provisions for libraries to fulfill their missions, and to bring down unfair allegations against these provisions.

Here’s an overview of the most relevant provisions for libraries, archives, museums and research and education institutions:

  • Fair use: non-exhaustive list of uses (research, criticism, reporting current events, teaching, comment, parody, preservation, etc.) and four relevant factors (nature of the work, amount and substantiality of the part of the work affected by the act, purpose and character of the use and substitution effect of the act upon the potential market for the work)
  • General exceptions for libraries, archives, museums and galleries, for non-commercial purposes:
    • to lend a work in a tangible media
    • to provide temporary access to a work in an intangible format accessed lawfully, to a user or to another institution
    • to undertake preservation and web archiving (copies for back-up and preservation of works in the collection, and preservation of works in publicly accessible websites)
    • to combine the preservation exception with making the work available when it has been withdrawn from public access after having been communicated to the public
    • to get copies from other institutions for incomplete works
    • to format-shift
    • to make copies when permission from the copyright owner cannot be obtained
    • to make copies to lend them to other institutions for exhibition
    • to supply documents
    • a limitation of liability for any library, archive museum or gallery employee working within the scope of his or her duties

*none of these provisions limit the fair use provision

  • Marrakesh provision, allowing the making and supplying of accessible format copies to a person with a disability (or a person who serves him or her), including across borders, with no commercial availability check and no remuneration provision. A compensatory sum of money is deposited in a particular account and can be collected by the copyright owner at any time, but there is also a process allowing the authorised entity to recover the amount
  • Contract override provision applicable to all the provisions in the act
  • Licenses for orphan works. Before use, there is a requirement to publish the intention to register the work as orphan in certain sources, followed by an application to a government body, which will grant a non-exclusive license if the procedure has been duly followed
  • Specific exceptions from copyright protection applicable to all works, among which:
    • Quotation (up to an extent “justified by the purpose”)
    • Use of illustrations in publications, broadcast, sound or visual record for the purpose of teaching (up to an extent “justified by the purpose”)
    • Translation of works for non-commercial purposes and limited to specific uses (personal, educational, …)
  • A temporary reproduction and adaptation exception, for transient or incidental copies or adaptations of a work that are an “integral and essential part of a technical process”
  • Reproduction exceptions for non-commercial educational and academic activities, including:
    • Making copies of works for the purposes of educational and academic activities
    • Including these in course packs (by educational institutions) both in physical and virtual learning and research environments
    • when there is no license available to incorporate the whole or a substantial part of a work, this will fall under the exception
    • Reproducing a whole textbook if the work is orphan, out of commerce or out of print
    • Incorporating portions of works in an assignment, portfolio, thesis or a dissertation for submission, personal use, library deposit or institutional repository (by a person receiving instruction)
  • A national open access policy: the author of any scientific work resulting of a research activity that received at least 50 per cent of its funding from the state has the right, despite granting the publisher or editor an exclusive right of use, to make the final manuscript version available open access.