Protect SA and send flawed copyright bill back to parliament
President Cyril Ramaphosa’s copyright problems are multiplying. A delegation from the office of the US trade representative is in SA as part of the review of SA’s status under the generalised system of preferences (GSP). GSP exports account for R34bn of SA’s exports to the US.
The president is running out of time to act on the Copyright Amendment Bill. Meanwhile, the industry is running out of patience. Our trade partners are losing faith in SA’s commitment to the protection of intellectual property in conformity with our international treaty obligations.
The solution to the copyright conundrum is unfashionably simple: send the bill back to parliament. The Copyright Amendment Bill was passed by the National Assembly, leaving the president with a simple binary choice: sign the bill if it is consistent with the constitution or send it back to parliament if it is not.
The simplicity of the choice makes the president’s inaction all the more confusing, and the consequence of his failure to act has been a successive wave of crises. The first wave came with civil society reactions. The Trade Union for Musicians of SA and Musicians Association of SA have held a number of protest marches demanding that Ramaphosa send the bill back to parliament. Prominent SA artists and creators have taken opportunities to call on the president to act, at the Samas and by producing a song called
Petitions have also been delivered to the national and provincial governments.
The second wave took the form of external pressure. At first, international entertainment companies such as Disney, Sony and Paramount Pictures petitioned the president not to sign the bill. This escalated when the US government announced its review of SA’s eligibility for preferential trade access to US markets. The review stems from the contention that under the Copyright Amendment Bill, SA will no longer adequately protect US intellectual property.
Ten months after the bill was passed, the president still cannot sign it into law because, despite flimsy arguments by Big Tech, it is constitutionally flawed — as pointed out by the country’s most revered constitutional experts. Big tech companies have been misleading the SA public — “expanded fair use” and “hybrid fair use” do not reduce the effect of stacking the law unfairly against creativity being rewarded and respected in SA.
The expanded “fair use” provisions in the bill amount to an expropriation of intellectual property without compensation, a flagrant violation of the constitutional guarantee of property rights. The substantive flaws are compounded by procedural flaws, such as inadequate public consultation with industry stakeholders.
The international fallout from the bill is caused by the inconsistency of the intellectual property regime the bill puts in place with SA’s international obligations under various multilateral treaties that are administered by the World Intellectual Property Organisation and the World Trade Organization.
Sending the bill back to parliament would simultaneously alleviate the fears of the industry and halt the looming suspension or withdrawal of SA’s eligibility for the US GSP.
Procedurally, sending the bill back to parliament on this basis will allow for extensive consultation with all affected stakeholders. In addition to fixing the bill’s procedural flaws, this will also be a fresh opportunity to find consensus within the industry on the best approach to a 21stcentury intellectual property regime that does not compromise the property rights of content creators and copyright owners.
SENDING THE BILL BACK TO PARLIAMENT ON THIS BASIS WILL ALLOW FOR EXTENSIVE CONSULTATION
Substantively, the reconsideration of the bill will allow for evidence-based research to consider the consequences of what the government has called a “hybrid fair use” approach on the rights of authors, artists and composers under the constitution. Further consultation would allow either for the fair use approach to be refashioned to address concerns about its application to the SA context, or for alternative approaches to be considered.
Based on the belief that the president will reject the bill in accordance with the constitution, the Copyright Coalition of SA made a submission to the office of the US trade representative arguing that the GSP review is premature given that the bill has not yet been enacted.
The SA economy hangs on the president’s next move. His decision will have farreaching consequences beyond the creative and cultural industries. The president needs to show the decisive leadership we have wanted for so long and send the bill back to parliament, because consultation is the only way out of our year-long copyright limbo.