Contentious Copyright Amendment Bill being mulled by presidency
A legal team is analysing all submissions on the bill, which one group has said it will take to the Constitutional Court should it be signed into law
The presidency’s legal team is analysing all submissions and petitions on the contentious Copyright Amendment Bill and will advise him on the proposed law, President Cyril Ramaphosa has said in a written reply to a parliamentary question.
However, the president said in reply to a question by DA trade and industry spokesperson Dean Macpherson that no task-team has been established to deal with the bill, which has been adopted by parliament but which is strongly opposed by key sectors of the publishing industry.
The Coalition for Effective Copyright in SA, which represents copyright lawyers, publishers, broadcasters and recording companies, has petitioned Ramaphosa to refer the bill back to parliament for reconsideration and wants him to instruct the department of trade and industry to conduct a proper socio-economic impact assessment before he signs the bill into law.
The coalition has vowed it will approach the Constitutional Court should the president sign the bill into law.
The DA has also written to Ramaphosa requesting him to send the bill back to parliament for amendments and further consideration — this after a US lobby group said it would put pressure on the Trump administration to withdraw SA’s preferential trade status should the bill be passed into law in its current form. This could see about R12bn of SA’s exports losing preferential access to US markets.
The International Intellectual Property Law Association (IIPLA) — which represents US companies that produce copyright-protected material, including computer software, films, TV programmes, music, books, and journals (electronic and print) — is objecting to the bill because of the risk it poses to US intellectual property (IP) rights.
Opponents to the bill object to the introduction of the “fair-use” principle which gives individuals the right to use copyrighted work “fairly” — in essence, to circumvent copyright protections and republish them without consent.
According to Macpherson, this would seriously prejudice local content producers and education contributors as their works are not being protected in SA or internationally. This could have devastating consequences for schools and universities.
The Coalition for Effective Copyright criticises the broad scope of the fair-use provisions in the proposed legislation, arguing that if the bill is promulgated, it will allow international companies to republish local work without compensating the creators fairly, threatening their ability to earn a living. It says the bill will effectively amount to the retrospective and arbitrary deprivation of property — essentially, the expropriation of local content without compensation.
The US operates on a fair-use basis. However, unlike SA’s courts, those in the US can award hefty statutory punitive damages in copyright-infringement cases, opponents of the bill say. In SA, an offender would simply have to stop re-using the content and would only have to pay standard royalties.
Tech companies, including Facebook and Google, have backed similar laws in other jurisdictions, arguing that protecting copyright on artistic, news and academic work will limit online innovation and freedoms.
Supporters of the bill say its opponents are those institutions that have a monopoly over copyrighted works and play a role in continuing to stifle creativity, innovation and access to knowledge and information in SA.
Former trade and industry minister Rob Davies supported the bill, saying there are safeguards meant to ensure that the intended use is, in fact, fair. He said there are also “technological protection measures” to prevent unauthorised access or use of copyrighted works. Content that is protected by these measures includes digital music, movies, games and software, he said, adding that the Copyright Tribunal would also address any disputes that may arise.