In her recent piece in the Daily Maverick, Sanya Samtani encouraged Parliament to simply pass the Copyright Amendment Bill, presumably word for word – again. But what would this achieve?

It is widely accepted in legal circles that intellectual property, including copyright, is a form of property protected by Section 25 of the Constitution. Several aspects of the bill are contrary to the Berne Convention and the World Trade Organisation TRIPS agreement (the Agreement on Trade-Related Aspects of Intellectual Property Rights) with which our state is obliged to be compliant. 

The bill in its present form would undermine the copyrights and performance rights of authors and performers. It is those who invest in their creations and performances who are the primary copyright owners that the law is meant to protect. Contrary to this objective, it would be in the interests of the tech giants that such material should be open to wholesale copying with impunity, which is what the bill, as presently worded, seeks to achieve.

The bill was referred back to Parliament by President Cyril Ramaphosa for a very good reason: He rightly had reservations about the constitutionality of the bill both in terms of procedure and substantive outcomes. It’s hard to understand how Parliament could remedy the procedural flaws if it were to merely go through the motions with the premeditated objective of passing an identical bill. It is also unclear why Parliament would not grasp the opportunity to improve the bill and remedy many technical drafting flaws that found their way into the text or may have been there from the outset.

If Parliament were to again pass the bill as is, the president would have the further option to refer the bill to the Constitutional Court for a decision on its constitutionality. The decision would almost certainly be for the bill to be sent back to Parliament – again – for reconsideration. 

If the President chose to sign an unchanged bill rather than refer it to the ConCourt, or if Parliament responded to the ConCourt decision by passing yet another defective bill, other parties with standing could challenge the bill’s constitutionality. Starting in the High Court, this process would work its way very slowly back to the Constitutional Court.

This process would constitute an unnecessary delay in providing the relief so many desperately need, in particular the authors and artists who need greater protection of their rights, not less, against the big internet platforms that are eager to see laws that favour the free exploitation of South African content.  

This bill was first tabled in Parliament in May 2017. It has taken over three years to get to where we are today, sitting with a terrible bill. The result of undemocratic manoeuvring can only be a longer delay in passing a good amendment to the Copyright Act.

Samtani is correct on one count: The South African government needs to fix the Copyright Act in order to bring it in line with both the Constitution and with South Africa’s international commitments. The problem we face is precisely that the current bill does not comply with either the Constitution or our international law obligations. The least Parliament can do is to actually consider all the arguments that have been put forward about the bill’s flaws.

Proper consideration of the President’s reservations is not only sensible, it is a constitutional obligation. Under section 79 of the Constitution, Parliament must put in place a procedure for reconsidering bills that are referred back to it by the President. 

Already, one of the grounds on which the bill was referred back to Parliament is the incorrect tagging of the bill. So, for starters, Parliament must consider retagging the bill to reflect its concern with issues affecting the provinces, and then undergo a new process that includes the National Council of Provinces whose members must consider the bill afresh since they have not done so before.

In addition to the tagging, no public participation was held after the alteration of the “fair use” provisions that have been the most controversial aspect of the bill. The new process will have to address this. Under our Constitution, public participation is required to provide meaningful opportunities for the public to participate. Public participation is not a tick-box exercise. Treating it as such is inconsistent with responsive government, and any attempted shortcuts would be ill-advised as there remains a lot to be said about the true impact of the bill.

Given the constitutional principles at stake and the economic environment in which we find ourselves, urging Parliament to pass the same bill again just to prove a point, with no regard for its consequences, is incredibly irresponsible. And asking Parliament to undermine the President’s due exercise of his constitutional obligation is profoundly undemocratic. 

Opponents of the bill have repeatedly argued that it renders creators vulnerable to exploitation. To Samtani’s question of whose property the President is worried about, the answer is that it is the intellectual property of South Africa’s creators; those whose works would be exploited under the guise of “fair use” without compensation; those who will not have the means to challenge fair-use loopholes in protracted litigation against exploitative tech giants. 

In any event, Parliament is now called upon to decide on sound copyright legislation, taking into account the voices of South Africa’s creators on how the bill will affect them. 

It should be noted that artists’ voices are not the only ones in the mix. There are other local interests at stake, but there was no place for these considerations in the President’s reasoning for referring the bill back to Parliament. He sent the bill back on the only legally permissible grounds – his reservations about the constitutionality of the bill. Other sectors of the South African economy which may lose duty-free access to the US or lose their European investors as a result of the bill must be considered.

The Copyright Amendment Bill was drawn up by the Department of Trade and Industry (DTI) and approved by Cabinet before it was presented to Parliament. Now that the bill has been referred to Parliament for reconsideration, the Portfolio Committee on Trade and Industry will likely send it back to the DTI to reconsider. 

DTI Minister Ebrahim Patel has been a leading figure in shaping the lockdown regulations covering economic activity during this pandemic. He is perhaps better informed than most on the full impact of the current crisis on the economy – especially on the creative and cultural sector. It would be preposterous to expect the minister to rubberstamp the resubmission of a bill he knows will further devastate the creative economy without making any effort to bring the bill into alignment with the needs of the creative sector, of the South African economy, and of our trade and investment partners. To do so is to court disaster.

Given the constitutional principles at stake and the economic environment in which we find ourselves, urging Parliament to pass the same bill again just to prove a point, with no regard for its consequences, is incredibly irresponsible. And asking Parliament to undermine the President’s due exercise of his constitutional obligation is profoundly undemocratic. 

The only solution to the copyright quagmire is to do the difficult work now. Otherwise, the shortcuts we take will set us on a longer, harder and ultimately fruitless path instead of helping us reach our desired destination. DM