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Supporters of the Copyright Bill should avoid resorting to political expediency to achieve their aims

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Sadulla Karjiker is a professor in the Department of Mercantile Law at Stellenbosch University and the incumbent of the Anton Mostert Chair of Intellectual Property Law. He holds the degrees BSc LLB (UCT), LLM (London) and LLD (Stell), and is admitted as an attorney in South Africa and as solicitor in England. He has practised corporate and commercial law in both jurisdictions. His research interests are copyright law and trademark law.

To rely on the Marrakesh Treaty and its provisions for blind, visually impaired and persons with other disabilities to force the president to give effect to the Copyright Amendment Bill in its entirety would amount to the worst kind of political expediency.

It appears that the proponents of (and lobbyists for) the Copyright Amendment Bill will stop at nothing to see it enacted. In this vein, it appears that they have resorted to placing the blind and visually impaired at the centre of their attempts to pressure the president to sign the bill. This is clear from the Maverick Citizen article of 4 June, “Blind SA goes to ConCourt in effort to compel President to sign Copyright Amendment Bill”. It is, of course, not suggested that the writer of the article does not have genuine concerns, but it is suggested that there is much more at stake than those concerns.

To be clear, for those of us who are opposed to the bill, there has at no stage been any attempt not to give effect to the Marrakesh Treaty (“the Treaty”). From the first draft of the bill in 2015, the comments I have submitted as the Anton Mostert Chair of Intellectual Property Law at Stellenbosch University unequivocally supported the introduction of the provisions that seek to give effect to the Treaty. In fact, the only comments I have made in relation to the relevant section of the bill, namely, the proposed additional section 19D, was that it failed to adequately transpose the rights granted pursuant to the Treaty into South African law. This concern was repeated in my comments concerning the 2017 draft of the bill. 

As stated on other occasions, the fact that the draft bill could not even adequately transpose the Treaty suggested that those tasked with drafting it lacked the necessary competence in the area of South African copyright law.

It is also important to note that the Treaty goes well beyond making copyright works accessible to the blind and the visually impaired. The Treaty also seeks to facilitate access to copyright works to persons who are otherwise unable, through physical disability, to hold or manipulate a book or to focus or move their eyes to the extent normally possible for reading. This latter group of persons was considered to be particularly important in the African context. It sought to ensure access to copyright works to persons who, for example, had lost limbs in the various conflicts that have plagued the continent over decades. Thus, while the Treaty is generally associated with issues of visual impairment, it seeks to address a broader need for access to copyright works.

For the avoidance of doubt, if the relevant provisions of the bill that seek to give effect to the Treaty and transpose it into South African law are excised from the bill and are given effect to immediately by the president, there would be no objection from any corner in the country. Of that, I am sure. 

However, to rely on that fact to force the president to give effect to the bill, which contains a host of problematic aspects, in its entirety would amount to the worst kind of political expediency. It clearly amounts to a cynical use of our visually challenged persons as cannon fodder for pursuing other interests and is not something that right-minded people should allow to happen.  

Proponents of the bill appear to be constantly on the lookout for reasons to push through this piece of flawed legislation – most lately, the Covid-19 pandemic (see, for example, the 3 June Maverick Citizen article, “Copyright Bill is a gateway to accessible knowledge and creativity – not American roulette”). For what it is worth, copyright has not presented me with any problems in continuing my teaching online. Students continue to have access to the online, and other, resources that they had access to prior to the lockdown. In fact, in my experience, the challenge has always been to get students to read the prescribed, already-accessible material, rather than lamenting about material to which they do not have access because of copyright. Yes, more often than not, it is a case of looking for a crisis, rather than there being one.

There appears to be a deliberate obfuscation concerning the bill. In a constitutional democracy, legislation and regulations need to follow credible and inclusive processes and should evidence a balanced and considered approach.

Instead, the Department of Trade and Industry (DTI) appears to have followed a questionable process. For example, the passage of the bill appears to have come about in the absence of the Statutory Advisory Committee on Intellectual Property provided for in the Copyright Act. Instead, the DTI was still trying to reconstitute the Advisory Committee earlier this year as it has been dysfunctional for the better part of a decade or more. It therefore should come as no surprise that the bill does not reflect a well-considered, balanced view of interests concerning copyright protection, given the rationale for copyright protection.

While there is no doubt that our copyright law needs to be updated, particularly given the advent of the internet and the World Wide Web and the WIPO treaties that we have not implemented or acceded to, any amendments should be the result of a thorough consultative and deliberative process. 

However, legislation that does not live up to our constitutional values and standards should not be allowed to be accepted on the basis of expediency or serving narrow interests.

If this bill is signed on the basis of giving effect to the Treaty, we will have allowed some of the most vulnerable members in our society to be cynically used as scapegoats to let the DTI off the hook. The president will in the process have turned a blind eye to the DTI’s failures, and thereby perpetuate the culture of unaccountability and lack of transparency. DM

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