Debate rages on over controversial Copyright Amendment Bill

Controversy over the Copyright Amendment Bill continued to rage in parliament on Wednesday, with opponents arguing that it should be scrapped in its entirety and sent back to the drawing board and supporters saying that only tweaks are necessary.

Parliament’s trade and industry committee is holding public hearings on the bill which has been in process since 2017.

The original bill was fundamentally redrafted by the previous trade and industry committee itself, but in June last year President Cyril Ramaphosa referred it and the Performers’ Protection Amendment Bill back to parliament because of concerns about the constitutionality of certain provisions and that it had been incorrectly processed by parliament.

The bill was dealt with in terms of section 75 of the constitution, which does not involve the provinces, instead of in terms of section 76 that Ramaphosa believed was the appropriate process.

Ramaphosa also had reservations that several sections of the Copyright Amendment Bill could constitute “retrospective and arbitrary deprivations of property” in that copyright owners would be entitled to a lesser share of the fruits of their property than was previously the case. The retrospective application of the bill was unlikely to survive constitutional challenge, he said.

Another concern was that the fair-use provision was not subjected to public comment before the final version of the bill was published.

The introduction of the fair-use principle used in the US is one of the controversial issues fuelling debate. Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner.

Tech giants such as Google are supportive of fair use as it gives them free access to material. Also supportive are educators such as the SA Democratic Teachers’ Union (Sadtu) and librarians in the Library and Information Association of SA (Liasa) which seek greater and easier access to works of all kinds. On the other hand, authors, artists, filmmakers, publishers and the recording industry among those opposed to it. The European Commission and the US have also objected to aspects of the bill.

MultiChoice head of corporate affairs Collen Dlamini said the bill would not take the creative industries forward and would undermine investment in film and TV. Aynon Doyle, the company’s head of policy research, noted that the bill did not comply with international instruments as it prejudiced the interests of creators and rights holders who buy the work of creators. He said if the bill was enacted in its current form it was likely to be challenged in court.

Sadulla Karjiker, Stellenbosch University Anton Mostert chair in intellectual property law, was scathing of the “deeply flawed” bill which he said would be damaging for the economy by eroding the rights of copyright holders and artists who would be at the mercy of big tech companies. It undermined the incentive to creativity. He said the bill should be scrapped and referred back to the department of trade industry and competition for a comprehensive review.

SA Institute of Intellectual Property Law’s Stephen Hollis recommended that the committee engage the services of senior counsel to analyse the bill to ensure that it complied with the constitution and international treaties. He stressed that a favourable copyright regime was crucial to attract foreign investment to the country.

Hollis said both bills were had material flaws which could not be corrected by mere “quick fixes”. “We identified 19 sets of provisions affecting up to 50% of the text introduced to the Copyright Act that may have constitutional implications or amount to treaty compliance issues,” he said. “No adequate socio-economic impact assessment was conducted to measure the impact of the bills on the creative industries and the subsectors therein.”

North West University associate law professor Klaus Beiter came out in strong support of the fair-use principle, insisting that the bill complied with international conventions. A group of nine academics led by Malebakeng Forere supported the bill, noting that it could be made constitutionally compliant with a few technical amendments. She noted that the current Copyright Act violated the bill of rights.

ensorl@businesslive.co.za