Copyright Reform in South Africa: Moving Beyond Rhetoric & Hyperbole
By Neil Turkewitz
In June of 2020, following extensive and heated discussions of proposed copyright amendments adopted by the National Assembly, South Africa’s President, Cyril Ramaphosa, raised constitutional concerns about the law, and sent it back to the National Assembly for reconsideration to address the perceived constitutional problems which were both procedural and substantive. Last month, the National Assembly’s Trade and Industry Committee at the National Assembly met to discuss the President’s reservations, and adopted a consensus report endorsing his reservations.
The National Assembly has adopted the report, and referred the Bills to the Joint-Tagging Mechanism (JTM) for re-tagging as Section 76 Bills (Bills that affect the provinces must be tagged as Section 76 bills which then affects the mechanism for public consultation), and sent the Bills back to the Portfolio Committee to consider the President’s reservations in detail and to prepare an amended text following new public consultations. The JTM has since confirmed the re-tagging of the Bills, which now require the participation of the nine Provinces, thus facilitating broad new stakeholder engagement on all aspects of the Bills at the Provinces, while the National Assembly’s Portfolio Committee’s focus would be on provisions having Constitutional bearing and provisions which may amount to breaches of relevant international treaties.
These actions were hailed by South Africa’s creative community who had, in opposition to the bill, highlighted that legislation that was originally intended to support South Africa’s creative community had evolved in such a manner that it would have instead prejudiced their already precarious position in favor of foreign multinationals, and that it might have a particularly injurious impact on South Africa’s emerging efforts to protect expressions of folklore. The Copyright Coalition of South Africa warned that the bill “would greatly reduce the incentive for creating original works, which will have a recolonising effect on South Africa’s education and culture.”
The statement from Coalition chairperson, Chola Makgamathe, pursuant to last month’s Committee report was unequivocal: “It is encouraging to see that the soundness and importance of President Ramaphosa’s concerns regarding the Bill were heard and accepted by all parties within the Portfolio Committee. This is a position that we, as the CCSA, support.”
As reported by TheMediaOnline:
“The CCSA has long argued that the Copyright Amendment Bill is unconstitutional for both substantive and procedural reasons, as it violates the right to property, arbitrarily depriving content creators (artists, writers, musicians, among others) of their intellectual property rights.
The Coalition previously also stated that as the result of inadequate public consultation and the failure to take into account the findings of a socioeconomic impact assessment study, the Bill was always going to come short on its intended goals.”
This fresh start in the legislative process provides a new opportunity to conduct a legislative process consistent with the processes set out in South Africa’s constitution, and to fully align South Africa’s copyright law with the needs and requirements of a digital world. A new opportunity to create incentives to invest in the production of cultural and educational works. A new opportunity to sustain South Africa’s cultural workers. A new opportunity to not only protect South Africa’s cultural heritage but to expand it — both artistically and economically.
A key imperative in this new process is to undertake careful economic impact assessments that measure the potential impact of each provision that could affect the creative and cultural sectors — with a particular emphasis on:
1) addressing the extent to which any new exceptions related to fair dealing or fair use could impact vulnerable indigenous communities who already struggle to monetize and protect their works, including those resulting from traditional knowledge/expressions of folklore; and
2) Producing independent academic studies that measure each new proposed copyright exception against accepted international standards as expressed in the Berne 3-step test.
Neither economic impact assessments nor independent academic studies were undertaken in the initial process, leading to the many procedural and substantive problems of the earlier text — in particular a failure to fully consider the economic implications of the proposals on creators and other affected communities, and the relationship of the proposed exceptions to South Africa’s international obligations under the Berne Convention and other instruments. It is critical that these defects be remedied as consideration of a new draft proceeds.
It is vital that the National Assembly undertake these analyses prior to conducting further rounds of stakeholder engagement which, in the absence of economic analysis and independent academic/legal review, are likely to merely recreate prior rhetorical positioning and which would therefore fail to provide the government with additional information to better inform public policy. One has no need for an oracle to understand that individuals and organizations have strongly held, and deeply conflicting, views on issues related to copyright being considered in this process. To move beyond rhetoric and hyperbole, it is essential that future work be grounded in sound economic and legal analysis.
As noted by Collen Dlamini, Chairperson of South Africa’s Copyright Coalition, in a piece entitled: The Copyright Bill is fundamentally flawed and strips creatives of their rights
“The core issue with the Copyright Amendment Bill is that it will amount to the expropriation of intellectual property (IP) without compensation. This will deal a hammer blow to the production of local content in our book stores, on our television screens and in our educational institutions.
Although the bill was originally intended to benefit South African creatives, it will instead cut off their income streams. The losers will be local artists, writers and musicians. The winners will be the large, global tech companies who will gain free access to South African content thanks to the bill’s extensive exceptions to copyright, especially under an expansive set of principles allowing free use of copyright materials called ‘fair use.’”
One final comment before closing. Wiseman Ngubo (one of the four experts appointed by the previous Portfolio Committee to advise on the copyright bill) offered an essential insight into how the proposed amendments could undermine South Africa’s broader cultural agenda. He wrote:
“Given that cultural expressions are protected via copyright, it means they are subject to the same exceptions found in the Copyright Amendment Bill including Fair Use. Traditional knowledge is almost always exploitatively used in a transformative way when employed by big conglomerates. Leaving vulnerable indigenous communities exposed to exploitation requiring massive legal investment….This burden of instituting legal processes would have to be borne by indigenous communities every single time indigenous knowledge systems and other forms of cultural expressions are used, at enormous cost, only for them to be entitled to no more than reasonable royalty at the end of the process.”
South Africa has a new opportunity to craft a bill that materially advances its cultural and economic interests. I urge the National Assembly to look past the noise and to divine the signal. That’s not as easy as it sounds given the amount of noise, but the stakes demand reason, and equal parts passion and forbearance. South Africa has little interest in passing legislation that will reward “large, global tech companies who will gain free access to South African content.”
