By Emmanuel Legrand
South African President Cyril Ramaphosa has decided on June 16 to refer back to Parliament the controversial Copyright Amendment Bill and Performers' Protection Amendment Bill for reconsideration. The President's office said questions of constitutionality have been raised regarding certain provisions in the text.
“My office received submissions against the signing of the two bills into law as well as submissions in favour of my assenting to the two bills,” said Ramaphosa in a letter to National Assembly speaker Thandi Modise. “In considering the numerous and varied submissions made and the process followed in parliament to pass the bills, I have a number of reservations as to the constitutionality of the bills. These reservations lead me to conclude that in its present form, the bill may not pass constitutional muster and may therefore be vulnerable to constitutional challenge."
Insufficient hearing on fair use
Blind SA, an organisation that advocates for the rights of blind and visually impaired people, had referred President Ramaphosa to the Constitutional Court for failing to perform his duties by not enacting the law. In a correspondence to Blind SA, the State Attorney listed the specific constitutional reasons Ramaphosa sent the bill back to Parliament: Incorrect tagging of the Bill; Retrospective and arbitrary deprivations of property; Insufficient public hearing on Fair Use; Impermissible delegation of legislative power to the Minister; and Copyright exceptions and limitations that are in conflict with WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty.
The bills have been awaiting for the presidential seal since March 29, 2019 and have been a source of debate and controversy, with rights holders complaining that the bills were making too much space to fair use and exceptions, while proponents of the text such as Blind SA were were urging the President to sign it into a bill.
The future of the creative sector
Collen Dlamini, chairperson of the Copyright Coalition of SA, stated that sending the bill back to parliament was "the best course of action for the country.” He added, “We have maintained all along that the bill was unconstitutional because, if passed into law, it would have arbitrarily deprived SA artists and creatives of their intellectual property. By sending the bill back to Parliament, President Ramaphosa has shown that he cares about the future of our creative sector."
Blind SA said its legal team will study the State Attorney’s letter and will be looking at its options going forward. "Blind SA is satisfied that the action instituted in the Constitutional Court has at least resulted in the President now complying with his duties under Section 79 of the Constitution," said the organisation.