File photo: Delwyn Verasamy/M&G
Years after sending the Copyright Amendment Bill, and by extension the Performers Protection Amendment Bill, back to Parliament, President Cyril Ramaphosa has referred it to the Constitutional Court for certification.
The President's Office said on Wednesday that Prime Minister Ramaphosa had sent the bill back to Parliament for reconsideration, but that his concerns about potentially unconstitutional provisions “have not been satisfactorily received by Parliament”.
Presidential Spokesperson Vincent Mugwenya said: “The President has expressed reservations to the Constitutional Court about the provisions of the bill as originally drafted and reviewed by Parliament, and has therefore sought a ruling from the Supreme Court.”
“President Ramaphosa has undertaken this reference in the form of a letter to the Registrar of the Constitutional Court in terms of Articles 79(4)(b) and 84(2)(c) of the Constitution.”
Mr Magwenya said Mr Ramaphosa's reservations included a “very long list of issues”.
These include that the copyright restrictions imposed by Sections 6(a), 7(a) and 8(a) of the Bill are retrospective and in violation of Article 25(1) of the Constitution; These include things that may constitute arbitrary deprivation of property.
These provisions give ministers discretionary powers, which “may amount to an unacceptable delegation of legislative powers,” Mugwenya said.
Therefore, there was a risk that it would be unconstitutional.
This reservation also applies to sections 12a to 12d, 19b and 19c, where the Bill provides for copyright exceptions.
These may be ripe for constitutional challenge, including that they violate South Africa's international copyright obligations.
Because the Performers Protection Amendment Bill restates the provisions in question, President Ramaphosa referred both bills to the Supreme Court.
The back-and-forth between the president and Congress has been going on for nearly four years. He originally sent the bill back to Congress in 2020.
Legal experts and art critics have harshly criticized the copyright bill.
They warned that the exemptions introduced by the concept of fair use eroded the rights of copyright holders and risked South Africa breaching international treaties.
The Bern Convention for the Protection of Literary and Artistic Works of South Africa, signed in 1928, does not explicitly recognize the principle of fair use.
Its incorporation into U.S. law has sparked much debate about whether domestic law is compatible with international treaty obligations.
Although the Amendment Bill leans towards the US model, the Copyright Act 1978 is based on UK law and recognizes the concept of fair dealing instead.
Fair use, as defined in Section 12 of the bill, means that use of a work for research, private study, personal use, educational purposes, or news reporting does not require permission and does not infringe on copyright. This means that it is not considered to be. Satire or parody.
Section 12a(6) also allows for fair use for “the preservation and access of library, archive and museum collections”.
No permission is required, so there is no compensation for using copyrighted material.
Rights group SECTION27 last week launched an emergency application to the Constitutional Court accusing Mr Ramaphosa of failing in his obligation to sign the amendment.
Mugwenya said the measure was “a bit strange” given there is no time limit in the law for the president to assent to the bill.
“It is inappropriate in my view to assume that the president must have concluded this for a particular bill, because what is that based on and what is influencing that assumption? ?There is nothing to support their speculation.''
Several years ago, the group petitioned the Supreme Court to strike as unconstitutional a part of the Copyright Act that requires visually impaired people to obtain consent from the copyright holder to transcribe works into Braille.
But the deadline the court gave Congress to correct the deficiencies by September of this year does not apply to the president.