Submission to the Portfolio Committee on Trade and Industry on the Copyright Amendment Bill [B13-2017].

9 July 2021 – Executive Summary

SECTION27 welcomes the opportunity to comment on the Copyright Amendment Bill [B13- 2017] (‘CAB’). Our submission reinforces the importance of the CAB’s exceptions for educational purposes from the perspective of the Bill of Rights. It also emphasises the urgency of passing the CAB due to the existing unconstitutionality of the apartheid-era Copyright Act 1978 and its Regulations. In particular, we submit that:

  • The current Copyright Act 1978 and its Regulations are obsolete and unfairly discriminate against people living with disabilities and people living in poverty. In particular, the current Act does not respond to the entrenched inequalities in South African society and limits access to educational materials to those who have access to the market. The current Copyright Act 1978 also unjustifiably limits the right to education, participation in cultural life, and freedom to receive and impart information. Moreover, Parliament is under an obligation to bring old- order legislation, such as the Copyright Act 1978 in line with the Bill of Rights. The CAB is an instance of just that.
  • The CAB gives effect to several rights in the Bill of Rights. In Clause 13 amongst other provisions, it gives effect to the rights to equality and non-discrimination by rectifying the unfair discrimination highlighted in the current Copyright Act 1978. Clause 13 also gives effect to the rights to education, participation in cultural life, freedom to receive and impart information and the right to dignity.
  • In response to the President’s concern, the CAB does not arbitrarily deprive copyright holders of their property. Notwithstanding whether copyright is constitutionally protected as property, the fundamental purpose of Clause 13 is to give effect to rights in the Bill of Rights. It is procedurally sound, and easily passes the sufficient reason test. Even if it is considered a deprivation, it is not arbitrary and therefore the property guarantee under the Constitution is not engaged. This is because the guarantee in the Constitution is drafted in the negative (a right against arbitrary deprivation of property) rather than a positive right to property.
  • Finally, in respect of the CAB’s compatibility with international law, the constitutional standard is not ‘compliance’ as suggested by the President’s letter, rather, it is that the particular statute must be capable of reasonably being interpreted to be compatible with the sum of South Africa’s international obligations. The inclusion of a broad definition of ‘authorised entity’ and an explicit guarantee that format-shifting would not take place for profit-making purposes in the CAB enables it to be interpreted compatibly with the Marrakesh VIP Treaty that Parliament intends to consent to in future.

In general, we submit that Parliament must bear in mind that the crucial Bill of Rights aims behind Clause 13 of the CAB must be retained, as South Africa is a constitutional democracy with the Bill of Rights as its cornerstone.

Read our full submission, endorsed by civil society organisations and individuals, here: