Almost four years ago to the day, the Department of Trade and Industry’s former director-general, Lionel October, proposed that – in processing the Copyright Amendment Bill – members of the previous Parliament’s Portfolio Committee on Trade and Industry might want to consider adopting a phased approach to addressing “the most complex issue in the global trade debate” (Parliamentary Monitoring Group audio recording). He was referring to differences of opinion about the merits of fair use as opposed to fair dealing.
October had a leaner bill in mind, focusing on key 2011 Copyright Review Commission report recommendations for the “greatest areas of need”: a “properly regulated” music industry; protection for “vulnerable people”; accommodating “digital change”; and aligning the 1978 act with international treaties. The vexed issue of fair use/dealings would have been left to a separate bill at a later stage in the process, giving the department more time to convince “powerful vested interests” of the merits of a system that appears to have worked so well for the US economy.
Given funding constraints, there would have been no provision for a dedicated copyright tribunal. Instead, the leaner bill would have sought to empower the Commission for Companies and Intellectual Property to regulate collecting societies.
October’s proposal was howled down – most vocally by the ANC’s Adrian Williams. The rest is history. The committee proceeded to rework the bill, a revised version of which was passed shortly before the 2019 general elections.
Based on reservations about the constitutionality of certain clauses and an unsatisfactory public participation process, President Cyril Ramaphosa returned the bill to Parliament in June 2020, since when the National Assembly has agreed to recommendations from a relatively new Trade and Industry Portfolio Committee that clauses 5, 7 and 9 (dealing with shares in royalties on literary, musical, visual artistic and audiovisual works) be amended “to provide for prospective operation only” (Parliamentary Monitoring Group audio recording).
The committee was advised that retrospectivity provisions in these clauses “may constitute arbitrary deprivation of property”. Confining them to “prospective operation” would also address the president’s concerns that, in their present form, the clauses confer “substantial discretionary powers on the minister, which may well constitute an impermissible delegation of legislative authority”.
These unpalatable facts were overlooked in all the brouhaha of last week’s public hearings on sections of the bill released for public comment, as part of the process of addressing the president’s concerns.
Also apparently overlooked by some stakeholders pushing for Parliament to urgently pass the bill as it now stands is that this simply cannot be done. Parliamentary processes can take years – especially where contentious policy positions are involved. Because the bill has been retagged as a section 76 piece of legislation affecting the provinces, once the portfolio committee has tweaked clauses flagged by the president in the hope of addressing his reservations and the National Assembly has passed it, the National Council of Provinces (NCOP) is constitutionally obliged to subject the entire bill to a robust public participation process.
Quite possibly, each provincial legislature will conduct its own hearings. Then – assuming that most provincial legislatures vote in favour of the revised bill, which is then passed by the NCOP – the president is unlikely to sign it into law until he is satisfied that it will pass constitutional muster, thereby avoiding myriad time-consuming and costly legal challenges in various courts countrywide.
Once he is, the new act cannot be operationalised before a set of regulations has been drafted, released for public comment, tweaked and gazetted. This, too, can take years.
There is no quick fix to the vexed issue of copyright law reform in South Africa. But four years have been wasted and ordinary South Africans deserve to know why. DM