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NEWS 

Copyright Amendment Bill

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In a significant move for South Africa’s creative industries, President Cyril Ramaphosa has referred the contentious Copyright Amendment Bill and Performers’ Protection Amendment Bill to the Constitutional Court. The President’s decision, communicated in a formal letter to the Court Registrar, follows longstanding concerns regarding the constitutionality of these Bills and their potential impact on creators’ rights and economic interests.

The Copyright Amendment Bill and Performers’ Protection Amendment Bill have been a source of contention among industry stakeholders, including the Copyright Coalition of South Africa (CCSA) and other prominent organisations within the creative sector. These Bills aim to address issues surrounding copyright and intellectual property, with one of the most debated aspects being the inclusion of “fair use” provisions that would allow educational institutions to use copyrighted content without compensating the creators.

While supporters argue these provisions will broaden access to educational materials, opponents; particularly within the creative industry; believe they pose a significant risk to the livelihoods of local creators. Concerns were raised that these changes could discourage both local and international content creation in South Africa, diminishing economic returns from intellectual property. Critics have highlighted that these Bills, if passed in their current form, could result in local creators registering their work in other countries where copyright protections are stronger, potentially syphoning off revenue that would otherwise support South African artists and the national economy.

In response to these concerns, President Ramaphosa has invoked Sections 79(4)(b) and 84(2)(c) of the Constitution, which allow the President to refer bills back to Parliament for further consideration if there are reservations about their constitutionality. After Parliament’s review, if the President still has doubts, he may then refer the bills to the Constitutional Court for a final judgement.

This process underscores the President’s commitment to ensuring that legislation aligns with the Constitution, particularly in regard to protecting fundamental rights, economic freedoms, and the creative industry’s contributions to South Africa’s cultural heritage. This action follows months of lobbying from stakeholders like the CCSA, which represents a diverse array of local artists, writers, musicians, and filmmakers who have voiced concerns about the Bills’ impact on the rights and compensation of creators.

One of the key issues for the industry is the proposed “fair use” provision, which allows copyrighted works to be used for educational purposes without remuneration to the creators. While this may support educational access, many in the industry argue that the provision could undermine the economic rights of creators, making it financially unfeasible for them to continue producing content locally.

Chola Makgamathe, Chairperson of the Copyright Coalition of South Africa, emphasised that while accessibility in education is important, it should not come at the expense of creator rights. “There’s a way to compensate creators fairly while encouraging them to contribute their work for educational use,” she stated, underscoring the need for a balanced approach that respects the economic interests of both creators and society.

Industry leaders suggest that South Africa accede to the Marrakesh Treaty, which allows accessible format copies for people with disabilities without undermining copyright protections. The Treaty would provide visually impaired individuals with lawful access to published works while maintaining international copyright standards. Additionally, South Africa’s publishing industry has already taken proactive steps to make materials accessible for visually impaired readers, addressing one of the primary motivations behind the Bills without compromising creators’ livelihoods.

The referral to the Constitutional Court provides an opportunity for thorough judicial examination of the Bills, free from political influences and commercial lobbying. The Court will assess whether the Bills meet constitutional requirements, weighing the need to democratise access to content against the economic rights of creators and the sustainability of South Africa’s creative industries.