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- South Africa's controversial copyright legislation is back in the spotlight, with a local organisation claiming that the portfolio committee on trade and industry is attempting to rush through changes to the law for political reasons.
- The bill - which allows for the free use of copyrighted content in some circumstances - was sent back to the National Assembly in June last year by President Cyril Ramaphosa, who said they were open to constitutional challenge.
- Copyright Coalition of SA says that the bill "patently favours big tech companies from California over the entire local creator value chain".
An organisation representing local musicians, film makers, authors and artists has accused Parliament’s trade and industry portfolio committee of trying to rush through deliberations on legislation they say will sell out SA’s creative output in favour of big Silicon Valley tech companies.
The committee is sitting with two bills - the Copyright Amendment Bill and the Performers' Protection Amendment Bill - that were sent back to the National Assembly by President Cyril Ramaphosa in June last year. At the time, he said they were open to constitutional challenge.
The copyright bill proposes changing South Africa copyright regime to include the introduction of the "fair-use principle" which, in effect, allows for the free use of copyrighted content in certain circumstances, like for research and teaching. Fair use is championed by companies like Google.
But US film, music, software and publishing companies have objected to their government about the proposed changes to the South African laws, which may strip them of their copyright protection. This resulted in a US government announcement that South Africa could be left out of a duty-free trade scheme. Currently, South Africa enjoys trade benefits with the US that it could lose if it was found that it failed to protect the intellectual property rights of US companies.
Now the Copyright Coalition of South Africa (CCSA) alleges the committee is attempting to push through the bills, which they are calling defective, by simply dealing with technical matters. It claims that this is because the bills are a political hot potato that could divide the ANC further.
The CCSA says the the committee has not heard the organisation’s views on how to implement a policy, similar to the US, that "introduces balance in the form of hefty statutory penalties for those who abuse the fair use provisions". The US already has a fair use policy in place.
"A tremendous opportunity to re-cast and redirect the bills as they are central to the economic recovery of the cultural creative sector in the aftermath of the Covid-19 pandemic is being lost," said CCSA chair Chola Makgamathe.
Makgamathe used the example of foreign book publishers losing money and pulling of SA because the country had a minimal level of copyright protection for them.
When Ramaphosa sent the bills back to the National Assembly, he said they were incorrectly tagged as bills that did not affect provinces, when they actually did, specifically as they impacted cultural matters and trade. He was also concerned that amendments to the bill, including 'fair use', were not subject to public comments.
In addition, Ramaphosa contended that certain exceptions in the bill "constitute arbitrary deprivation of property; may violate the right to freedom of trade, occupation and profession, and may be in conflict with the World Intellectual Property Organisation (WIPO) Treaty and the WIPO Performance and Phonograms Treaty, both of which South Africa subscribes to."
Makgamathe said that at a committee meeting last week, Parliament’s legal advisor claimed the bills did not directly deal with trade, cultural matters, customary or indigenous law, and only had a knock-on effect on those issues. She also claimed that the committee only wanted to deal with the specifics of Ramaphosa's reservations, instead of dealing with the broader issues that led to the faults in the legislation.
She said because the bills were incorrectly tagged, the wrong process was followed, and provinces were not consulted.
"On paper you [the committee] are doing everything you need to do [in dealing with Ramaphosa's reservations]. But you are not using the opportunity to make right what you did wrong," Makgamathe said.
"Instead of bringing South Africa’s intellectual property regime soundly into the 21st century, the portfolio committee is in despair [about] how to lose the defective bills quickly ahead of elections, pretending to solve yesterday’s problems tomorrow.
"Many in Parliament appear to be wanting to 'staying the course' of a pre-Ramaphosa defective bill. Dealing with the bill meaningfully might uncomfortably throw light on how such a bad bill patently favours big tech companies from California over the entire local creator value chain. The bill may also divide the ANC at this crucial time and so needs to disappear from sight, one may reasonably conjecture," Makgamathe claimed.
Committee chair Duma Nkosi told Fin24 that he could not comment on the CCSA's "discussions and allegations". He then listed Ramaphosa's reservations with the bills.
"The committee requested more time and we had 'deliberations on the remitted bills' on Wednesday, 5th May 2021 and we will have 'formal consideration of the report on the remitted bills' on 11 May 2021," Nkosi said.
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