Opinionista Sanya Samtani 12 July 2020

Parliament can uphold the Constitution by passing the Copyright Amendment Bill — again

Implementing the Copyright Amendment Bill could be a rare instance of the stroke of a pen having immediate and far-reaching benefits for access to knowledge in disadvantaged communities. Why, then, did President Cyril Ramaphosa bow to pressure and return it to Parliament after sitting on it for 15 months?

In June President Cyril Ramaphosa returned the Copyright Amendment Bill and the Performers’ Protection Bill to Parliament. As I have previously explained, the South African Government is under a constitutional obligation to fix the apartheid-era Copyright Act and bring it in line with the Bill of Rights and South Africa’s international commitments. Parliament came very close to fulfilling this obligation, through a 15-year process of initiating, consulting and passing the Copyright Amendment Bill, in 2019. Yet the bill sat on President Ramaphosa’s desk for 15 months.

Eventually, BlindSA, driven by the “book famine” that persons with visual and print disabilities are experiencing under the Act, approached the Constitutional Court to compel the President to move on the bill.

Implementing the Copyright Amendment Bill could be a circumstance in which the stroke of a pen has immediate and far-reaching benefits for access to knowledge in disadvantaged communities. In addition to rendering accessible works that have been historically inaccessible to persons with visual and print disabilities, the Copyright Amendment Bill also enables access to published works for educational purposes for the majority of the black population who cannot afford them. Unlike the legislation passed by Parliament more than a year ago, the four-decades-old Act does not centre on these groups.

The Bill aims at centring actual authors and creators by introducing explicit provisions to restore their control over their work. In doing so, it “decentres” intermediaries who, in seeking to profit from authors’ and creators’ work, have often secured unequal bargains. Parliament, through the bill, has sought to correct this power imbalance between struggling artists and highly profitable companies in favour of the former.

Ramaphosa, having been lobbied furiously by multinational corporations, the European Commission and the Office of the US Trade Representative (as well as through the recent US trade benefits review) sent the bill back to Parliament on the only basis he could do so – that he was concerned parts of it were unconstitutional. In his letter to the National Assembly, the President outlined parts of the bill that he said raised constitutional issues. It has been widely noted, with some disquiet, that the President’s letter directly mirrors the complaints of multinational corporations. Some of these complaints originated as rhetorical claims about the Constitution in parliamentary debate. But, as a matter of constitutional law, there is no legal merit to the complaints. Far from being unconstitutional, the Copyright Amendment Bill is constitutionally required.

This article urges Parliament to continue to act in accordance with the Bill of Rights, as the Constitution mandates it to, and centre the most vulnerable groups in its reconsideration of the Copyright Amendment Bill. In the rest of this article I explain how the Presidency’s fears about the unconstitutionality of the bill are completely unfounded, and why, in fact, Parliament must pass the bill once again in order to meet its constitutional obligations.

Disadvantaged students left behind

Covid-19 throws the existing landscape of unequal access to educational materials and other educational infrastructure into stark relief. With schools closed and higher education institutions conducting tuition online, students and learners who do not have access to the internet or mobile data are being left behind. With libraries closed, it is increasingly impossible to access set works that are unaffordable in the marketplace. In such times, even publishers and internet service providers have realised that access to educational materials is important to human development and have opened up their collections for a limited period of time.

More recently, though, some publishers have withdrawn such free access, seemingly on a whim. This is exactly the problem – that the fulfilment of the right to education cannot be dependent on the goodwill of private corporations.

Technologies increasing access to educational materials are at least as old as the printing press itself – through handwritten notes from libraries or photocopies and, more recently, digitally scanned copies. In fact, student resistance movements in the anti-apartheid struggle, particularly the Biko-led South African Students Organisation, relied on circulating photocopied compilations of extracts from the published works of Frantz Fanon, Aimé Césaire, Léopold Senghor and other anti-colonial, pan-African, Black Consciousness leaders to educate, organise and rise up against apartheid in the face of aggressive political censorship.

In order for everyone to participate in building and bettering the world around them, access to the community of ideas is crucial. Under section 7(2) of the Constitution, the State has a legal duty to ensure that its copyright and other laws do not inhibit access to educational infrastructure, while fulfilling the purpose for which they have been enacted. This duty extends to respecting, protecting, fulfilling and promoting the right to education under section 29 of the Constitution.

The Copyright Amendment Bill attempts to correct the current imbalance in the Copyright Act that entrenches the profits of intermediaries (such as publishers) at the expense of both authors/creators and future authors/creators (students/learners). In doing so, the bill seeks to democratise the process of knowledge production – by opening up a stream of books and ideas to a large section of the population to whom it was previously denied.

In order to fulfil the transformative imperative of the Constitution, the state must seek to remedy historical, material and socioeconomic disadvantage in order to ensure that everyone has equal access to education. This means taking positive steps towards enabling access for women and girls, persons with visual and print or learning disabilities, and those living in poverty, which maps on to the majority of the black population, as well as those at the intersection of one or more of these markers of disadvantage.

The marketplace, driven by solely economic incentives and characterised by a handful of large multinational and local corporations, is ill-configured to remain the solitary gatekeeper of knowledge. The Copyright Amendment Bill merely seeks to regulate the market, as a vast number of laws do across all sectors of the economy, and to enable access for those who are excluded by the market on the basis of historical, material and socioeconomic disadvantage. Claims of the copyright industry’s market share reducing, particularly in respect of commercial publishing, are greatly exaggerated. The people for whom the bill enables access were never the target market in the first place. The bill gives access to people who could not afford to pay under the old Act in any event, and this does not shrink the market.

Deprivation of property?

In that case, one may ask, what’s wrong with the Copyright Amendment Bill? The President, in his letter to the National Assembly, along with procedural concerns (that I will not deal with in this piece), foregrounded the following two substantive concerns: first, that a few sections of the bill in its current form enable arbitrary deprivation of property; and second, that certain exceptions may breach South Africa’s international copyright obligations.

I first address the concern regarding arbitrary deprivation of property. It is important to first ask whether copyright falls within the definition of constitutional property under section 25 of the Constitution. And if so (because section 25 does not simply prohibit every deprivation of property), has there actually been an arbitrary deprivation of such property? As it stands, the text of section 25 of the Constitution does not explicitly include intellectual property as property. Despite the fact that section 25(4) states that property should not be limited to land, no court decision in South Africa has recognised copyright as constitutionally protected property and, crucially, applied the arbitrary deprivation test to that effect, despite the misleading claims of the copyright lobby.

A comprehensive review of the relevant South African case law (which I cannot reproduce here because of space constraints) reveals that:

  1. during the process of certification of the Constitution, where the Constitutional Court had the opportunity to require the addition of an explicit right to intellectual property, it decided not to, on the basis that intellectual property was not a “universally accepted human right”,
  2. while having had occasion to do so multiple times (most recently in 2019), no court in South Africa has ever applied the test in section 25(1) to test whether there has been an arbitrary deprivation of intellectual property.

Laugh it Off, a widely cited Constitutional Court decision, which treated trademarks as a statutory right and not constitutional property, emphasised that trademarks must be interpreted in the manner:

“which is the least destructive of other entrenched rights and in this case free expression rights. The reach of the statutory prohibition must be curtailed to the least intrusive means necessary to achieve the purpose of the section. Courts must be astute not to convert the anti-dilution safeguard of renowned trademarks usually controlled by powerful financial interests into a monopoly adverse to other claims of expressive conduct of at least equal cogency and worth in our broader society” (para 48).

Copyright, like trademarks, is also a statutory monopoly and constitutional rights must not be subordinated to limited monopolies granted to multinational corporations. Of course, others may argue that it is only a matter of time. Given the broad and unpredictable property jurisprudence of the courts – having recently held that mining rights and wine licences fall within the ambit of section 25 – copyright might not be far behind. Hypothetically, even if copyright is considered to be covered by section 25, its monopoly would still not be absolute. It could be limited by legislation.

For a limitation on constitutional property to be valid it must pass the test under section 25(1). This test contains two broad parts – first, a determination of whether there has been a deprivation at all; and second, whether that deprivation is arbitrary. In other words, the provisions outlined in the President’s letter would need to answer these two questions. If it is found that there has been no deprivation, or that even if there has been a deprivation it is not an arbitrary one, then the limitation on property is a valid one. The test for arbitrariness has been laid down by the Constitutional Court in the FNB case. On the basis of this test, any deprivation, if there is sufficient reason for it, will not be considered arbitrary. In order to determine whether there is sufficient reason for this deprivation (if there is shown to be a deprivation), crucial questions arise.

Whose property is the Presidency worried about?

The President’s letter expresses the concern that “copyright owners will be entitled to a lesser share of the fruits of their property than was previously the case. The impact of these provisions reaches far beyond the authors it seeks to protect – those that live in poverty as a result of not having been fairly protected in the past.”

Copyright “owners” are distinct from creators/authors. Copyright is granted to authors by law. Authors do not control the channels of distribution, broadcasting and printing presses. They often sign over copyright of their works to publishers, who are usually the “owners”. Because of unequal bargaining power, publishers usually draft standard-form contracts assigning authors’ copyright to them. Authors, more often than not, are urged not to negotiate and are divested from ownership of their works, to the extent that they may not get any further payments even when publishers continue to profit from it.

The new provisions on royalties aim to protect creators/authors for this very reason. The provisions seek to ensure that those who have assigned their copyright to commercial entities continue to get a share of the profits for as long as the works remain profitable. This is hardly a departure, particularly in socioeconomically stratified countries – India’s copyright law, amended in 2012, contains similar provisions.

The subordination of authors to intermediaries under current copyright laws around the world has been widely documented. Exploitative arrangements, already in place, will apply to profits from authors’ creativity in the future unless they are guaranteed a share of the profits generated from their work. These provisions seek to correct that by making the institution of copyright achieve the purpose for which it has been explicitly set up. This is very likely to constitute sufficient reason for any deprivation of property that the owners might be found to experience.

The Presidency’s second concern regarding arbitrary deprivation of property relates to two sets of sections of the bill: sections 12A-D and 19B and C. In relation to sections 12A-D, all uses under these sections are specifically limited by the fair use factors set out in section 12A(b), thus dispelling any misplaced notion of unlimited reproduction leading to market substitution.

Section 19B relates to computer operability and section 19C relates to accessibility of the works held in archives and libraries to all. Both of these sections have their internal limitations. These sections are particularly important for two constitutionally protected groups: persons with visual and print disabilities and students and learners who need to utilise copyrighted works for educational purposes across the socioeconomic spectrum. The President suggests that these provisions, too, may constitute arbitrary deprivation of property.

Remarkably, the President makes no mention at all of the right to education or the right to equality and non-discrimination that lie at the heart of the South African Constitution. It is very likely that a court will hold that the right of equal access to education constitutes sufficient reason to deprive copyright owners of their property, if copyright constitutes property at all. This is because the right to education has been held by the courts to constitute a vitally important “empowerment right” and the right of access to textbooks has been held to be an integral aspect of this right.  Failure to ensure access to textbooks for all has already been held to be a violation of the state’s constitutional duty.

Moreover, the right to equality and non-discrimination imposes a duty on the state not to discriminate against persons with disabilities and to take steps to remove barriers to their full enjoyment of rights. The Copyright Amendment Bill’s exceptions seek to do just that, through section 19D as the gateway section, which enables the transformation of copyrighted materials into accessible format copies, thus opening up the possibility for persons with disabilities to avail themselves of purpose-based exceptions in the bill, as recognised in the same section, including sections 12A-D and 19B and C. In other words, for persons with disabilities to realise their constitutional right of access to educational materials, both sections 19D and section 12A(a) are required.

Although the President’s letter refers to possible implications of the bill for the right to freedom of trade and occupation, this is not a ground that has been identified as the basis for referral in paragraph 22 of the letter. In any event, the Constitutional Court has held that the freedom to carry out trade and business is not absolute, but subject to reasonable regulation. Where the interests of the most vulnerable are at stake, regulation is necessary. Here there is a very easy case to be made out in favour of persons with visual and print disabilities and poor black students across the country carrying more constitutional weight than a multinational company’s freedom to profit.

Users’ rights

At this stage, it is important to recall that copyright itself is a limited, extraordinary monopoly created by statute. The Supreme Court of Appeal has held that “[s]tatutory monopolies are the exception, not the rule and they need to be justified” (para 13). Copyright is a state-sanctioned restriction on the free flow of information. Exceptions to copyright must be understood in this light. So, as has been held in Canada, and most recently India, exceptions to this extraordinary restriction must be treated as integral to the institution of copyright.

This has given rise to what is widely known as “users’ rights”. In the South African context, and in particular in relation to sections 12A-D and 19B and C, Parliament has given legal recognition to constitutional rights-bearers and taken a step towards ensuring access to published works for those whom the market has failed. On the second issue, regarding compatibility with international law, the Presidency has outlined in some detail the various trade and intellectual property treaties to which South Africa is a party.

The President’s letter markedly does not outline the constitutional basis for invoking alleged incompatibility with international law as a ground for returning the bill. The Constitution provides for state organs, including Parliament, to respect, protect, promote and fulfil the rights in the Bill of Rights. It also issues an interpretive directive that when any forum is seized with interpreting the Bill of Rights, it must consider international law. In addition, the provision on application of international law guides courts, in respect of statutes, to prefer a reasonable interpretation consistent with international law over one that is inconsistent.

The two provisions when read together indicate the need for Parliament to take South Africa’s international obligations into account at the time of legislating. In respect of international law, what is strikingly absent in the President’s letter is the entire repertoire of human rights treaties that bind South Africa and map onto the Bill of Rights. As of 2015, South Africa ratified the International Covenant on Economic Social and Cultural Rights, which comprehensively guarantees the right to education. This also extends to the right of access to educational materials. General Comment 17 explicitly notes that:

“States parties thus have a duty to prevent unreasonably high costs for access to essential medicines, plant seeds or other means of food production, or for school books and learning materials, from undermining the rights of large segments of the population to health, food and education.”

In addition, South Africa ratified the UN Convention on the Rights of the Child in 1995, which provides for making education free and available to all, progressively and on the basis of equal opportunity. Further, South Africa has ratified the UN Convention on the Rights of Persons with Disabilities, which obliges states party to the treaty to guarantee inclusive education to persons with disabilities without discrimination. The bill’s exceptions outlined above take steps towards guaranteeing just that.

Moreover, the bill also sets South Africa up to ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled in line with its own closing statements at WIPO. The bill thus affirms South Africa’s international commitment to taking positive steps to enable and increase access to copyrighted works for persons with visual and print disabilities, thus going beyond simply enabling the making of accessible format copies of copyrighted works to actually securing fair use of such materials for all, without discrimination.

In any event, the bill is not inconsistent with the international treaties on copyright that the Presidency refers to in the letter. Article 10(2) of the Berne Convention permits member states to legislate to guarantee copyright exceptions for educational purposes, as long as those exceptions meet the test of fair practice. Further, the TRIPS Agreement, read with the Berne Convention, contains articles 7 and 8 that allow states “flexibility” to limit intellectual property protections on the basis of “societal objectives”, as most recently confirmed by the World Trade Organisation itself in the Plain Packaging litigation.

The Copyright Amendment Bill again does just that – it recognises the prevailing inequality in South African society and those who bear the highest burdens of it through the above exceptions and limitations. In doing so, it takes steps towards correcting the disproportionate focus on copyright owners’ monopoly over dissemination. Even the independent legal opinion furnished to the Department of Trade and Industry concludes that the exceptions referred to in the President’s letter fulfil the TRIPS Agreement’s version of the three-step test.

Finally, it bears remembering that South Africa is the country of the Treatment Action Campaign, which stood firm on access to antiretroviral drugs for all in the face of the pharmaceutical lobby and patent restrictions. Parliament now confronts a similar challenge in relation to access to educational materials for all in the face of the multinational copyright lobby seeking to strengthen copyright barriers.

Parliament has done its job: the bill is constitutional. All that is left is for Parliament to pass the bill again. Once that happens, the President is faced with two options: either, he can sign the bill and in doing so, stand for a fair and non-discriminatory copyright law which is compatible with the Bill of Rights and international law, or send it to the Constitutional Court, in which case it is highly likely to be vindicated as constitutional in any event. DM/MC

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