In April, the Office of the United States Trade Representative (USTR) released its Special 301 Report watchlist, “an annual review of the state of IP protection and enforcement in US trading partners around the world”. South Africa was not included on the watchlist.

There are several ways to interpret South Africa’s omission from the watchlist. In her Maverick Citizen piece last week, Linda Daniels chose to interpret the omission as a free pass on the bill. Daniels seems to suggest that South Africa’s omission from the watch list means that the threat posed by the Copyright Bill to SA’s exports has been neutralised.

Another implication of her piece is that the response of the United States to the bill is not motivated by any real inadequacies of the bill, but rather a malicious plot to thwart the bill and punish South Africa.

However, her analysis is flawed on both counts. There are significant constitutional flaws in the bill, and the threat the bill poses to the economy is very real too.

One of the bill’s greatest flaws is the incorporation of “fair use” exceptions to copyright protections. These exceptions would effectively allow for the confiscation of creators’ intellectual property without compensation. The bill – originally intended to benefit South African creators – will instead rob them of their livelihoods. It will impoverish rather than empower creators and decimate the publishing industry, taking thousands of jobs with it.

With fewer local publishers left, authors will be forced to publish foremost with other markets in mind, and not the local South African reading public. The national written literature, so important for preserving our nation’s story, would be debilitated.

The signing of the bill into law would also put our international trade at risk at a time when we need to be rebuilding our economy in the wake of the Covid-19 lockdown. The United States is currently reviewing South Africa’s eligibility for duty-free access to US markets under the Generalised System of Preferences. A negative outcome would endanger 16% of South Africa’s total exports to the United States.

The South African government has to date argued that it is premature for the US to review South Africa’s GSP status, as the president has yet to sign the bill into law. While the bill remains unsigned, they argue, there are no grounds for the US to penalise South Africa preemptively. The government’s reasoning on this point was supported by the Copyright Coalition of SA in its submission to the USTR.

For all the threats we’ve survived thus far, the continuing flirtation with the unconstitutional Copyright Amendment Bill will one day cause our economy serious and irreversible damage.

The strength of this argument might explain the decision of the USTR to omit South Africa from its latest watchlist – for now. However, this does not mean that we are out of the woods. Because should President Ramaphosa sign the bill into law, our GSP status would still be greatly at risk. So, while we may have dodged a bullet for now, it doesn’t mean we should keep playing ‘American roulette’ by adopting American fair use (the latter being a mistake in its own right, of course).

The president’s apparent indecision over whether to sign the bill or send it back to parliament is indicative of a conundrum at the highest levels of government. On the one hand, he is reluctant to disagree with a bill adopted by a majority of his party’s MPs. On the other hand, he must be alive to the bill’s impact on trade and our creative industries.

We also suspect that he realises that the bill is unconstitutional on several grounds of process and substance. If this is the case, the Constitution prohibits him from signing the bill. Instead, he must send it back to parliament. The bill is patently unconstitutional because it violates the bill of Rights – particularly the right to property, and to freedom of trade, occupation and profession. Moreover parliament, in passing the bill, failed to adhere to the legislative procedure set out in the Constitution, and this prejudiced the cultural centres of South Africa to be properly heard in each of the nine provinces.

The world has changed since the Copyright Amendment Bill was passed by parliament. The national lockdown occasioned by Covid-19 brought almost the entire economy to a grinding halt. The creative and cultural sector came to an abrupt standstill virtually overnight. The bill, which posed a considerable threat before, could be the fatal blow to a sector employing more than one million people (directly and indirectly).

For starters, it could take years to rebuild the economy to its pre-lockdown levels. Physical distancing measures may be with us for a long time. Sectors like the creative and cultural economy, which often depend on people congregating at concerts and shows, for example, may feel the impact of Covid-19 long after other sectors have recovered.

And the damage would extend to industries entirely unrelated to the creative sector. Signing this unconstitutional bill into law could leave the whole economy short of American and European investment for the foreseeable future – investment that underwrites local creation and production of high-quality content enjoyed in South Africa, but also adding to its trade balance. This, at a time when we desperately need the investment inflows and export revenue to put the economy back on its feet.

For all the threats we’ve survived thus far, the continuing flirtation with the unconstitutional Copyright Amendment Bill will one day cause our economy serious and irreversible damage.

The economic shock of the pandemic should be a sobering call for cool heads to prevail. With our new context and the long-term consequences of enacting the bill in mind, parliament deserves an opportunity to reconsider the bill and act in the best interests of South Africa’s artists and creators. They have withstood the worst of the impact of Covid-19 with little relief for their participants, many of them freelancers.

On this issue at least, the president can do the right thing by sending the bill back to parliament to be reconsidered. DM