Ref. Ares(2020)3170450 - 18/06/2020
RE: COPYRIGHT AMENDMENT BILL AND THE CONSTITUTION
OPINION
A. INTRODUCTION
1.
Our consultant is ReCreate. ReCreate is a non-profit organization established to advocate
for a balanced Copyright Act that protects modern creators’ rights. ReCreate is a
coalition of writers, filmmakers, photographers, educational content producers, software
and video game developers, technology entrepreneurs, artists, poets, producers of
accessible format materials and other South African creators.
2.
We have been instructed in connection with the Copyright Amendment Bill B13B of
2017 (
‘the Bill’). The Bill amends the Copyright Act 98 of 1978 (‘
the 1978 Act’). On
29 March 2019, the National Council of Provinces (‘
the NCOP’) passed the Bill,
completing its passage through Parliament. The Bill has been referred to the President
for assent in terms of section 79 of the Constitution. ReCreate supports the Bill.
3.
We have been requested to furnish our opinion on whether the President is under a
constitutional obligation to assent to the Bill. We are asked to do so in light of certain
objections raised by stakeholders who seek to persuade the President not to assent to it.
4.
We have concluded that objections considered in this opinion do not provide any
impediment to the President assenting to the Bill. Subject to any other valid objection
1
that may be raised, the President is in our view under a constitutional duty to assent to
the Bill and to do so within a reasonable time. Indeed, in our view, the Bill respects,
protects, promotes and fulfills important constitutional rights including, amongst others,
the right to dignity, equality, freedom of expression and the right of access to education.
5.
We deal with the following issues in turn.
5.1.
First, we provide background information to the Bill.
5.2.
Second, we set out the President’s constitutional obligations in terms of section
79 including important constraints on the President’s power.
5.3.
Third, we explain how the Bill’s fair use provisions advance constitutional
rights including the rights to dignity, equality, freedom of expression and the
right of access to education.
5.4.
Fourth, we consider five constitutional ‘objections’ to the Bill.
5.4.1. We consider whether the Bill was correctly tagged as a section 75 Bill
in light of a suggestion that it should have been tagged a section 76 Bill
due to its impact on trade and custom. We conclude that the Bill was
not incorrectly tagged.
5.4.2. We consider whether Parliament complied with its duties in respect of
public participation in light of the complaint raised that Parliament
should have called for further submissions after introducing certain
2
amendments to the fair use provisions. We conclude that the objection
has no merit and that Parliament complied with its duties in respect of
public participation.
5.4.3. We consider whether the fair use provisions violate section 25 or
section 22 of the Constitution. We conclude that they do not.
5.4.4. We consider whether the provisions that import an inalienable statutory
right to a fair share in royalties in respect of existing contracts or
assignments violate the rule of law, contain impermissible delegations
of legislative power or breach section 25 or section 10 of the
Constitution. We conclude that they do not.
B. BACKGROUND INFORMATION
The Legislative Process
6.
The Bill is a product of the Department of Trade of Industry (
DTI). We are instructed
that the Bill is informed by multiple sources including, amongst others, international
treaties, international, regional and local reports and research findings and proposals
generated at an international level.1
1 For example: the Berne Convention for the Protection of Literary and Artistic Works (
the Berne Convention);
The Agreement on Trade-Related Aspects of Intellectual Property Rights (
TRIPS); The Marrakesh Treaty to
Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled
(
the Marrakesh Treaty); The Proposed Treaty on Limitations and Exceptions for Libraries and Archives; The
Proposed Treaty for Limitations and Exceptions for Research, Education, Libraries and archives and Disabilities
by the Africa Group (in which South Africa plays a leading role); The Civil Society Proposed Treaty On Copyright
3
7.
The copyright system in South Africa has been the subject of wide-ranging criticism for
many years including regarding its failure to facilitate access to education and to cater
for persons with disabilities.2 We are instructed that the DTI has engaged affected sectors
on possible reform over the past two decades.3 We are instructed further that the Bill
was proposed after several studies concluded that South Africans pay
significantly more
for access to copyrighted content than we receive to provide access.4 In South Africa,
the cost of knowledge – essential for economic development – is high.
8.
On 18 November 2010, Rob Davies, then Minister of Trade and Industry (
‘the
Minister’)5 established a Copyright Review Commission headed by retired Judge Ian
Farlam ‘to assess concerns and allegations about the collecting societies model that is in
place for the distribution of royalties to musicians and composers of music’
(‘the Farlam
Commission’). A key finding of the Commission included that South African musicians
Exceptions And Limitation For Educational And Research Activities; The Electronic Information for Libraries
Model Copyright Law
2See for example, Rens, Prabhala and Kawooya ‘Intellectual Property, Education and Access to Knowledge in
Southern Africa’ in Intellectual Property and Sustainable Development, Development Agendas in a Changing
World (Edward Elbar, 2012) ed Ricardo Melendez-Ortiz and Pedro Roffe, (ICTSD/UNESCO pre-publication
available
at
IPRS
Online)
https://www.iprsonline.org/unctadictsd/docs/06%2005%2031%20tralac%20amended-pdf.pdf
3 Specifically, we are instructed that engagement of libraries and other public interest sectors in copyright reform
goes back as far as 1998 when DTI considered proposals to amend the Copyright Regulations in 1998 and the
1978 Act in 2000. See Denise Nicholson, South Africa’s Copyright Amendment Bill: Its Genesis and Passage
Through Parliament (June 7, 2019) http://infojustice.org/archives/41167. More recently, a demand for legislative
review of this branch of law was made in 2009 after a ‘public outcry from the creative industry’ about the
economic impoverishment of artists in South Africa despite the creative arts being a significant economic driver
in other countries such as the United States. At that time, President Zuma convened a conference meeting with
representatives from the creative industries to discuss the issue.
4 South Africa’s National Research and Development Strategy (2002) estimated that the “net cost” of copyright
and royalties to South Africa had risen from R200 million in 1990 to R800 million in 2002
https://www.cepal.org/iyd/noticias/pais/0/31490/Sudafrica_Doc_1.pdf
Further, we are informed that the UK Intellectual Property Review Commission, receiving information about the
impact of intellectual property on development cited the South African Dramatic, Artistic and Literary Rights
Organisation which paid €74,000 to national copyrights holders but €137,000 to foreign copyright holders
as an example of the problematic practices of collecting societies.
5 The Minister is now Ebrahim Patel
4
were not benefiting enough from copyright because of unfair contracts and abusive
practices by collective management organizations. Its recommendations have informed
subsequent policy development and some features of the Bill. Its 2011 report explains
that the Commission’s process included extensive research and public participation.6
9.
In 2010, DTI commissioned a study through the World Intellectual Property Organisation
(
‘WIPO’) to research the benefits coming from the copyright-based industries in South
Africa. This culminated in a report titled ‘The economic contribution of copyright-based
industries in South Africa’, which concluded, amongst other things, that the industries
are responsible for almost 4.11% of the total economy and 4.08% of the workforce is
employed in the copyright-based industries. The industries also show a high contribution
to exports of the economy (2.77%) and imports (7.85%).
10. In 2013, the DTI published the “Draft National Policy on Intellectual Property: A Policy
Framework” for comment. The DTI received some 118 written submissions. An
important recommendation in the draft policy relates to the issue of fair use of
copyrighted material, which is one of the core controversial features of the Bill. The
following appears: “To enhance access to copyrighted materials and achieve
developmental goals for education and knowledge transfer, South Africa must adopt pro-
competitive measures under copyright legislation.
The legislation must provide the
maintenance and adoption of broad exemptions for educational, research and library
6 The public participation process apparently entailed receipt of written submissions and public hearings in seven
cities around the country. The Commission also undertook an international benchmarking exercise and visited
seven foreign countries to assist it with making recommendations based on international best practice. It had
regard to the reports of three foreign Commissions. It consulted specifically with collecting organisations active
in South Africa, representatives from the music industry and government departments.
5
uses.” Notably, the call for comment elicited proposals regarding the appropriate scope
of exceptions and limitations to copyright in the public interest.7
11. The DTI then commissioned Genesis Analytics to conduct an Assessment of the
Regulatory Proposals on the Intellectual Property Policy Framework for South Africa.
Their report, dated 31 July 2014, identified the purposes sought to be achieved by
copyright reform, which included “
to i) enhance access to and use of copyright works
and ii) to enhance access to information for the enhancement of education, research and
free speech” as well as the maximizing of flexibilities (i.e. limitations and exceptions) in
copyright in line with South Africa’s international treaty commitments.
12. The report then posited a range of amendments to the 1978 Act before the likely impact
of these amendments was considered. The report found that there would be broad social
benefits that would outweigh the costs of the amendments. These would include support
for the right to education, fairly-priced goods for consumers, enhanced freedom of
expression, the stimulation of creativity, fostering the right of access to information and
free speech and ensuring legal certainty.
13. In 2016, the DTI published the Intellectual Property Consultative Framework. Although
this document dealt centrally with
health and intellectual property and focuses on patent
law, it dealt in part with copyright in that it promoted the need for the accession by South
7 See for example 17 October 2013 the Joint Submission by Dr Schonwetter and seven other academics in IP
law accessed online.
6
Africa to various international agreements that regulate copyright, a commitment that
was subsequently re-iterated in government policy going forward.8
14. The Minister introduced the Bill in the National Assembly on 16 May 2017 as B13-
2017.9 The Joint Tagging Mechanism of Parliament tagged it as a section 75 Bill. The
Bill was referred to the National Assembly’s Portfolio Committee on Trade and Industry.
The Portfolio Committee called for written submissions on 26 May 2017. It held public
hearings on the Bill over several days in August 2017.
15. On 30 May 2017, the Portfolio Committee was presented with a Phase 2 Socio Economic
Impact Assessment Report undertaken in terms of the Socio-Economic Impact
Assessment System that had been introduced in July 2015.
16. On 11 September 2017, the Secretary to Parliament referred the Bill to the National
House of Traditional Leaders in accordance with section 18(1) of the Traditional Leaders
and Governance Framework Act 41 of 2003 (
‘the Framework Act’) noting that that
body must, within 30 days from the referral make any comments it wishes to make (i.e.
by 11 October 2017). We have been unable to confirm whether any comments were
made or not.
17. From 10 October 2017, there were multiple meetings of the Portfolio Committee during
which the Bill was discussed both technically and substantively. During this process the
8 On 25 August 2017, The Minister published for public comment a Draft Intellectual Property Policy for
comment. The Intellectual Property Policy was adopted by Cabinet in May 2018. Its significance for present
purposes is that it reiterates the commitment to bring South African law of copyright in line with international
commitments and standards.
9 The Bill was introduced together with the Performers Protection Amendment Bill
7
Portfolio Committee was advised by a technical committee, including on matters relating
to constitutional compliance and compliance with international copyright law. The Bill
was amended substantially before the Committee adopted it.
18. According to the Portfolio Committee’s report, and after its initial deliberations, on 29
June 2018 the Portfolio Committee made a second call for submissions on specific
clauses.10 The proposed clauses were substantive ‘new matters’ that warranted further
consultation and were informed by public submissions. Some 60 submissions were
apparently forthcoming at that stage. A third call for submissions was made on 3
September 2018 when the Committee introduced an amendment making it an offence to
act as a collecting society if not accredited. A further two submissions were apparently
received at that stage. There was, however, a fourth call for submissions on 12 October
2018 with a closing date of 26 October 2018 on various new clauses. Sixteen
submissions were received. We are instructed that the issue of exceptions and limitations
to copyright, including for educational uses and a general fair use provision remained
under debate.11
19. On 14 November 2018, the Portfolio Committee adopted the Bill subject to various
amendments (
B13B-2017). On 5 December 2018, the National Assembly passed the Bill
as amended and it was transmitted to the NCOP for concurrence.
10 The call was apparently advertised on Parliaments’ social media platforms through a media statements and
communication to identified stakeholders with a closing date of 9 July 2018 extended to 20 July 2018. The issues
in respect of which further consultation was called for are set out in the report.
11 We were referred to Commentary on the Copyright Amendment Bill 2017, submitted by the Anton Mostert
Chair of Intellectual Property Law, Department of Mercantile Law, Faculty of Law Stellenbosch University at p.
18
http://blogs.sun.ac.za/iplaw/files/2017/06/CIP-Comments-Copyright-Amendment-Bill-2017.pdf
The
following appears: “as with the 2015 Bill, it is not clear whether the proposed legislation would amount to a
system of fair dealing or fair use. For the avoidance of doubt, it is perfectly possible to have a system of fair use,
together with a list of exceptions which are stated to constitute, prima facie, fair use. In a sense, such an approach
would be a hybrid approach.”
8
20. In the NCOP, the Bill was referred to the Select Committee for Trade and Industry,
Economic Development, Small Business Development, Tourism, Employment and
Labour. The Select Committee was briefed on 13 February 2019. On 14 February 2019,
it called for submissions. It considered submissions received on 6 March 2019 together
with DTI responses. At this stage, Adams and Adams Attorneys lodged submissions on
behalf of industry stakeholders (supported by trade associations) who now seek to
persuade the President to decline to assent to the Bill.12
21. It is important to note upfront that although the submissions were drafted by counsel,
they are drafted in a manner that makes it clear to a legal reader that they are not supplied
as counsel’s opinion. Rather, counsel self-consciously has framed the objections as their
clients’ objections, in other words they have compiled their client’s views. While this
probably means that the counsel who signed the submissions regard the points made to
be arguable,13 it does not mean that these counsel regards them to be correct or even
strong arguments. Indeed, the views of counsel on the submissions cannot be ascertained
12 Adams and Adams instructed Steven Budlender and Ingrid Cloete to prepare submissions. The submissions
were made centrally for industry stakeholders. These are Juta and Company (Pty) Ltd, Media24 Boeke (Pty) Ltd,
Music Publishers Association of South Africa (MPA-SA), Pearson South Africa (Pty) Ltd, Schuter and Shooter
(Pty) Ltd; Sony Music Entertainment Africa (Pty) Ltd, Universal Music SA (Pty) Ltd and Warner Music SA (Pty)
Ltd. The submissions were apparently supported by various trade associations being Academic and Non-Fiction
Authors’ Association of South Africa, Animation South Africa, the Independent Black Filmmakers Collective,
Music Publishers Association of South Africa, Publishers Association of South Africa and the Recording Industry
of South Africa.
13 See Owen Rogers ‘The Ethics of the Hopeless Case’
Advocate Vol 30 No 3 Dec 2017 pp46 to 51. The view is
expressed that ethically counsel should not advance a hopeless legal or factual argument. They may argue a weak
case or even one that they consider likely to fail. Rogers states
inter alia the following as his view: ‘It is improper
for counsel to act for a client in respect of a claim or defence which is hopeless in law or on the facts. Counsel
must be able to formulate a coherent argument consisting of a sequence of logical propositions for which there is
reasonable foundation in the facts and on the law and which, if they are all accepted by the court, will result in a
conclusion favourable to the client. Counsel may properly act even though she thinks one or more of the essential
links are likely to fail. But if she is quite satisfied that one or more of them will fail, the case is hopeless.’
9
from the document, which simply does not purport to reflect their opinion, let alone a
reasoned opinion.
22. The NCOP Committee adopted the Bill and the Performers Protection Amendment Bill
unamended. On 28 March 2019, the Bill was passed by the NCOP without amendment
and sent to the President for assent in terms of section 79 of the Constitution.
23. As mentioned above, various stakeholders including Adams and Adams’ clients now
seek to persuade the President to decline to assent to the Bill and rather to refer it back
to Parliament in terms of section 79 of the Constitution.14 Reliance is placed on the
submissions that were lodged in the |NCOP (referred to above), an opinion by Marcus
SC and Yacoob dated 19 July
2012 in respect of the tagging of the Intellectual Property
Laws Amendment Act 28 of 2013 (IPLAA) 15 and submissions on international law
compliance by Andre Myburgh.
The purposes of the Bill
24. The purpose of the Bill is relevant to its constitutionality for at least three reasons. First,
all law must be rational which means at least that the measures must be rationally related
to a legitimate government purpose. At times there must be a ‘sufficient’ relation.
Second, where a law limits a right, courts assess whether the limitation is reasonable and
14 In this regard, we have to hand a copy of a letter dated 4 April 2019 (with supporting documents) from Adams
and Adams attorneys, representing a number of trade associations (Association of Non-Fiction Authors of South
Africa, Animation South Africa, Independent Black Filmmakers Collective, Music Publishers Association of
South Africa, Publishers Association of South Africa, PEN Afrikaans (authors), Recording Industry of South
Africa, Visual Arts Network of South Africa and Writers Guild of South Africa).
15 IPLAA introduces amendments that make traditional works (which include indigenous works) subject to
copyright protection. IPLAA has been assented to and signed by the President but has not yet come into force as
the commencement date remains to be proclaimed. We are instructed that this is because there are no regulations
yet in place to give effect to its provisions.
10
justifiable in an open and democratic society in light
inter alia of the purpose of a
limitation. Third, the purposes of the Bill have some impact on assessing if the Bill was
correctly tagged.
25. When considering the Bill’s purposes, it is appropriate to be mindful that the manner in
which any country protects copyright and allows for exceptions and limitations reflects
features of its economic policy. In turn, copyright law has ramifications for a country’s
social and economic development.16
26. We are also mindful that the government has framed its own policy responses in light
inter alia of the insight of economist and Nobel Laureate Joseph Stiglitz that:
‘
IP has become one of the major issues of our global society. Globalisation is one of the
most important issues of the day, and IP is one of the most important aspects of
globalization, especially as the world moves toward a knowledge economy. How we
regulate and manage the production of knowledge and the right of access to knowledge
is at the centre of how well this new economy, the knowledge economy works and who
benefits.’17
27. We are of the view that the following broad purposes of the Bill (amongst others) could
be advanced by the Minister if called upon to defend the Bill18 and that these can be
regarded as
legitimate, indeed important,
government purposes.
16 Ruth L Okediji ‘ The Limits of International Copyright Exceptions for Developing Countries’ at p691 to 692,
see Part IIA
17 Stiglitz (2008) at p 1695 cited in the IP Policy 2018
18 The general purposes of the Bill and the detailed purposes of its core provisions must be gleaned through a
process of statutory construction. In the process of discerning legislative purpose, courts will consider the
language of a statute, its context and history and the background to the legislation. Courts will have regard to
material such as policy documents, South African Law Reform Commission reports and explanatory memoranda
attached to Bills introduced in Parliament. See
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA) at paragraph 18. At common law it was not permissible to have regard to background
information but the enactment of the Constitution signaled a departure from this principle as evidenced in the first
case heard by the Court,
S v Makwanyane 1995(3) SA 391(CC) at paragraphs 17 to 18 followed in
Minister of
Health v New Clicks South Africa (Pty) Ltd 2006(2) SA 311 (CC) at paragraphs 199 to 201. See generally, Currie
et al
The Bill of Rights Handbook at p 143, fn 44. A court may also have regard to evidence adduced from the
11
27.1.
To modernize South African copyright law and update the 1978 Act, including
to bring our legislation in line with the needs of the fast-evolving digital age;19
27.2.
To bring South African law in line with international standards and to
implement the content of international treaties relating to copyright (both those
to which South Africa is already a party and those it intends to accede to).20
27.3.
To promote socio-economic development and poverty reduction, innovation
and a knowledge economy in the interests of all South Africans.21
27.4.
To balance the need to incentivize creativity and knowledge development with
the need to facilitate access to works in the public interest;22
27.5.
To protect and advance the interests of authors and creators;23
27.6.
To promote the rights of others including the right of access to education and
the right to equality especially to protect the rights of persons with disabilities.24
Minister The Constitutional Court did so in
S v Jordan and Others (Sex Workers Education and Advocacy Task
Force and Others as Amici Curiae 2002 (6) SA 642 at paragraph 15 fn 11.
19 The Memorandum says: ‘[The Bill]’ seeks to align copyright with the digital era and developments at a
multilateral era. The [1978 Act] is outdated and has not been effective in a number of areas.’
20 This is identified as an objective in the 2013 Policy and in the Preamble. See to the Explanatory Memorandum
The Constitutional Court has previously recognized that compliance with international obligations is a legitimate
government purposes. See
Prince 2001(2) SA 388 (CC) at para 12, para 52 and 72 cited in The Bill of Rights
Handbook at p 168.
21 This is identified in the IP Policy 2018. See Explanatory Memorandum
22 See Explanatory Memorandum.
23 The memorandum of the Bill states that it is ‘to ensure that artists do not die as paupers due to ineffective
protection.’ It continues that (this objective) ‘is supported by the experience of the power imbalance,
vulnerabilities and abuse taking place in the music industry, which Government was called on to address.’
24 The Constitutional Court has previously recognized that protection of the rights of others can serve as a
legitimate government purpose when limiting rights. See The Bill of Rights Handbook at p 167 with reference
12
28. The language of the Bill sheds light on its more
specific purposes in its preamble.25 Five
of these are of particular relevance for present purposes: a) to allow for further
limitations and exceptions regarding the reproduction of copyright works; b) to provide
for the sharing of royalties in copyright works; c) to provide for the payment of royalties
in respect of literary, musical, artistic and audio-visual works; d) to provide for resale
royalty rights; e) to provide for access to copyright works by persons with disabilities..
Key controversial provisions of the Bill
29. The Bill introduces a range of amendments to the 1978 Act. We highlight below only
those that have directly or indirectly attracted the specific constitutional objections we
address below: the inalienable right to share in royalties and the fair use provisions.
The right to share in royalties
30. First, various provisions of the Bill introduce amendments designed to protect creators’
right to a fair share in royalties. This is through amendments to sections 6, 7, 8 and 9 of
to
inter alia De Reuck v DPP (WLD) 2004(1) SA 406 (CC). The Memorandum expressly states that the Bill is
intended ‘to allow reasonable access to education’ and ‘ensure that access to information and resources are
available for persons with disabilities’
25 As follows: ‘To amend the Copyright Act, 1978, so as to define certain words and expressions; to allow for
further limitations and exceptions regarding the reproduction of copyright works; to provide for the sharing of
royalties in copyright works; to provide for the payment of royalties in respect of literary, musical, artistic and
audio-visual works; to provide for resale royalty rights; to provide for recordal and reporting of certain acts; to
provide for the accreditation of collecting societies; to provide for a mechanism for settlement of disputes; to
provide for access to copyright works by persons with disabilities; to provide for the licensing of orphan works;
to strengthen the powers and functions of the Copyright Tribunal; to provide for prohibited conduct in respect of
technological protection measures; to provide for prohibited conduct in respect of copyright management
information; to provide for protection of digital rights; to provide for certain new offences; and to provide for
matters connected therewith.’
13
the 1978 Act and the introduction of new related sections in respect of each type of work,
sections 6A, 7B to 7F and 8A and 9A.26 The provisions are in substantially similar terms
for literary or musical works, artistic works and audiovisual works. Accordingly, for
present purposes we refer only to the new sub-section 6A, which is extracted in Annexure
A for ease of reference.
31. Importantly, in respect of each type of work, a new section A is introduced that introduces
an
inalienable right to a fair share in royalties received from the commercial exploitation
of a work. The section also makes that right apply to future royalties in respect of both
new and existing contracts and assignments.
The fair use provisions
32. The second point of constitutional controversy flows from what are referred to as the new
fair use provisions.
33. Section 12 of the 1978 Act recognizes various exceptions to copyright. For ease of
reference, section 12 is extracted in Annexure B. The existing section 12 permits
fair
dealing with copyrighted material
in musical and literary works for certain purposes,
more specifically (a) for the purposes of research or private study by, or the personal or
private use of, the person using the work; (b) for the purposes of criticism or review of
26Sections 6 to 9 deal with the nature of copyright in literary or musical works (section 6), artistic works (section
7), cinematograph films (section 8) and sound recordings (section 9). Section 8 is to be expanded to deal generally
with audiovisual works
‘Audiovisual work’ will means the embodiment of moving images, whether or not
accompanied by sounds or by the representations thereof, from which either can be perceived, reproduced or
communicated through a device, and includes a cinematograph film;’’
14
that work or of another work; or (c) for the purpose of reporting current events (i) in a
newspaper, magazine or similar periodical or (ii) by means of broadcasting or in a
cinematograph film.27
34. There are other limited exceptions for literary and musical works too, more particularly
relating to judicial proceedings, quotations, use for teaching and broadcasts. Other
existing exceptions relate to texts of a legislative, administrative or legal nature,
reproduction or broadcast of lectures and speeches for information purposes and
reproduction in the press or broadcast of topical articles.
35. The Bill contemplates that section 12 will be repealed and new sections 12A to 12D will
be introduced to govern exceptions from copyright protection. For ease of reference the
new sections 12A to 12D are extracted in Annexure C.
36. On analysis, the central shift is that the Bill departs from the
fair dealing provisions for
musical and literary works, and introduces into South African law what are described as
‘
fair use’ limitations and exceptions for all works. In effect, the provisions introduce
broader exceptions to copyright protection, which apply to any type of work. This is
effected by:
36.1.
The inclusion of a list of use exceptions that is more expansive and includes
purposes such as scholarship, teaching and education, comment, illustration,
27 Section 12(1) continues: Provided that, in the case of paragraphs
(b) and
(c) (i), the source shall be mentioned,
as well as the name of the author if it appears on the work.
15
parody, satire, caricature, cartoon, tribute, homage or pastiche and preservation
of and access to the collections of libraries, archives and museums.
36.2.
Introducing a measure of flexibility by introducing the list of exceptions with
the words ‘such as’.
36.3.
Introducing a four-factor test for the determination of whether a use is
fair use
in a particular case
.
37. There is nothing untoward about Parliament deciding to develop copyright law in a
manner where the interests of users – as opposed to the interests of holders of rights in
copyright – are advanced. Indeed, it is nothing more than express recognition of the very
purpose served by statutorily-granted rights in various forms of intellectual property. As
the UK Commission on Intellectual Property Rights explained in its 2002 report entitled
“Integrating
Intellectual Property Rights and Development Policy”:28
“We therefore consider that an IP right is best viewed as one of the means by which
nations and societies can help to promote the fulfilment of human economic and social
rights. In particular, there are no circumstances in which the most fundamental human
rights should be subordinated to the requirements of IP protection. IP rights are granted
by states for limited times (at least in the case of patents and copyrights) whereas human
rights are inalienable and universal.
For the most part IP rights are nowadays generally treated as economic and commercial
rights, as is the case in TRIPS, and are more often held by companies rather than
individual inventors. But describing them as ‘rights’ should not be allowed to conceal
the very real dilemmas raised by their application in developing countries, where the
extra costs they impose may be at the expense of the essential prerequisites of life for
poor people.
Regardless of the term used for them, we prefer to regard IPRs as instruments of public
policy which confer economic privileges on individuals or institutions solely for the
28 At p 6 (footnotes omitted)
16
purposes of contributing to the greater public good. The privilege is therefore a means
to an end, not an end in itself.”
38. The reference to TRIPS is a reference to the World Trade Organization’s Agreement on
Trade-related Aspects of Intellectual Property Rights,29 which imposes on member states
the obligation to legislate minimum standards of intellectual property protection. But
even TRIPS makes provision for countries to legislate exemptions.
38.1.
In respect of copyright, for example, Article 13 provides:30
“Members shall confine limitations or exceptions to exclusive rights to certain
special cases which do not conflict with a normal exploitation of the work and
do not unreasonably prejudice the legitimate interests of the right holder.”
38.2.
A similarly-worded provision dealing with patents is to be found in Article 30:
“Members may provide limited exceptions to the exclusive rights conferred by
a patent, provided that such exceptions do not unreasonably conflict with a
normal exploitation of the patent and do not unreasonably prejudice the
legitimate interests of the patent owner, taking account of the legitimate
interests of third parties.”
38.3.
Moreover, a number of other provisions – which apply to all forms of
intellectual property – expressly recognise member states’ rights to tailor their
laws to advance domestic needs. 31 Article 1.1, for example, states that
“[m]embers shall be free to determine the appropriate method of implementing
the provisions of [TRIPS] within their own legal system and practice.” And
Article 7, which sets out the agreement’s objectives, provides:
“The protection and enforcement of intellectual property rights should
29 The reference to ‘trade’ is a reference to international trade.
30 Article 14.6 also makes provision for certain exceptions relating to rights in respect of the protection of
performers, producers of phonograms (sound recordings) and broadcasting organizations.
31 See, in particular, Articles 1.1, 7, 8, and 40.
17
contribute to the promotion of technological innovation and to the transfer and
dissemination of technology, to the mutual advantage of producers and users of
technological knowledge and in a manner conducive to social and economic
welfare, and to a balance of rights and obligations.”
39. At a high level, the fair use provisions of the Bill can be seen as serving an analogous
purpose to public health safeguards and flexibilities in patent law that are designed to
increase access to medicines.32 Although the Patents Act 57 of 1978 has yet to be
amended to give meaningful effect to such safeguards and flexibilities, government
policy in this regard is clear. As the Intellectual Property Policy of the Republic of South
Africa Phase I 2018 explains:33
“The South African government has a long history of engaging with issues at the
intersection of IP and public health. Indeed, the 1999 case, PMA v the President of the
Republic of South Africa – when a consortium of multinational pharmaceutical
companies sought to block amendments to the Medicines Act in 1997 that would expand
access to medicines – was a key factor leading to global dialogue around the potentially
negative impact of IPRs on public health, culminating in the Doha Declaration on TRIPS
and Public Health.
South Africa has been a key driver of the now global recognition that the duty owed by
states to safeguard public health is not inconsistent with their concomitant responsibility
to honour international treaty obligations. Tellingly, paragraph 4 of the Doha
Declaration on TRIPS and Public Health states as follows:
‘We agree that the TRIPS Agreement does not and should not prevent members
from taking measures to protect public health. Accordingly, while reiterating
our commitment to the TRIPS Agreement, we affirm that the Agreement can and
should be interpreted and implemented in a manner supportive of WTO
members' right to protect public health and, in particular, to promote access to
medicines for all.’
Having said this, the South African government has to date not made full use of the
flexibilities available within international trade rules through the pursuit of appropriate
national policy and legislation. This is despite a constitutional imperative to increase
access to medicines as a component of the state’s obligation to take reasonable measures
toward the realization of the right to healthcare services. Indeed, this constitutional
imperative is reflected in government policies such as the NDP and the National Drug
Policy for South Africa.
32 Ruth L Okediji ‘The Limits of International Copyright Exceptions for Developing Countries’ at p 693.
33 At para 7.1 (footnotes omitted)
18
...
In addition to these domestic obligations, the state’s duty to progressively realise the
right to health is captured in international instruments which South Africa has ratified
such as the International Covenant on Economic, Social and Cultural Rights (ICESCR),
the Convention on the Rights of the Child (CRC), Convention on the Elimination of all
Forms of Discrimination against Women and Girls (CEDAW), the Convention on the
Rights of Persons with Disability (CRPD), and regional treaties such as the African
Charter on Human and Peoples’ Rights.
It is therefore fitting that the IP Policy should support these domestic and international
instruments pertaining to the right to health.”
40. Although the nature and effect of copyright protection is to some degree distinguishable
from that of patent protection, the two forms of intellectual property share one essential
commonality: the need to find an appropriate balance between competing rights claims.
As the UK Commission on Intellectual Property Rights explained:34
As with patents, the trade-off for society is between the incentive offered to creators of
literary and artistic works and the restrictions this places on the free flow of protected
works. But, unlike patents, copyright in principle protects the expression of ideas, and
not the ideas as such, which may be used by others. And it only prevents the copying of
that expression, not independent derivation. The central issue for developing countries
concerns the cost of access to physical or digital embodiments of the protected works,
and the approach taken to enforcement of copyright protection.
As with patents, there are normally exceptions in law where the rights of owners are
moderated in the wider public interest, known in some countries as ‘fair use’ provisions
(for example in the US), as ‘fair dealing’ in the UK tradition, and exceptions to the
reproduction right in the European tradition. It is the issue concerning the cost of access,
and the interpretation of “fair use”, that is particularly critical for developing countries,
made more so by the extension of copyright to electronic material, and to software.”
41. Okediji helpfully explains that ‘[h)istorically, most national copyright laws ha(ve) long
reflected a symbiosis between the grant of property rights in knowledge goods and the
“public interest.”35 She posits that limitations and exceptions should be framed to serve
the development needs of a country: ‘international (limitations and exceptions) should
34 At p 17 (footnote omitted)
35 Id at p 701
19
be viewed as an important component of modern economic development and growth
strategy.’ She argues further that ‘[i]n most developing countries—and certainly in the
least - developed countries—schools, libraries, and museums, where they exist, are the
most likely (and sometimes the only) gateways to knowledge acquisition. These
institutions should be direct targets of international copyright (limitations and
exceptions), but currently are not.’36
42. Limitations and exceptions can also be viewed as serving to protect rights in the Bill of
Rights such as the right of access to education, to dignity and equality and to freedom of
expression. The latter includes artistic and scholastic enterprise and the need to create
reasonable space for individuals to build on the work of those who came before them.
At least in some measure, limitations and exceptions are required to reconcile copyright’s
prohibitions on speech with fundamental rights of this sort. We deal with this in more
detail in section E below.
C. THE PRESIDENT’S OBLIGATIONS IN TERMS OF SECTION 79
43. Although the Bill has completed its passage through Parliament, it is inchoate. A Bill
only becomes an Act of Parliament when the President assents to and signs it.37 When
called upon to assent to and sign a Bill, the President’s duties are determined by section
79(1) of the Constitution. Section 79(1) provides that: ‘
The President must either assent
to and sign a Bill passed in terms of this Chapter or, if the President has reservations
36 Id
37 Section 81 of the Constitution: ‘
A Bill assented to and signed by the President becomes an Act of Parliament,
must be published promptly, and takes effect when published or on a date determined in terms of the Act.’
20
about the constitutionality of the Bill, refer it back to the National Assembly for
reconsideration.’
44. It is clear from the language of section 79(1) that the President’s powers at this juncture
are constrained. Indeed, the President is constitutionally obliged to assent to and sign the
Bill unless he has reservations about its constitutionality. In that event, he must refer it
back to the National Assembly for reconsideration in terms of sections 79(2) and (3) of
the Constitution. If, after reconsideration by Parliament, the Bill fully accommodates the
President’s reservations, the President must assent to and sign the Bill. If his reservations
are still not fully accommodated, he must either assent to and sign it or refer it to the
Constitutional Court for a decision on its constitutionality in terms of section 79(4)(b) of
the Constitution.38 The Court will be precluded from considering any reservations unless
they have first been referred to Parliament for reconsideration.39
45. Though constrained, the President’s role is nevertheless an important one to ensure
protection of the Constitution. The Constitutional Court has explained:
‘
[The President’s] role in the law-making process reflects a careful effort to ensure that
the law-making process is kept under check consistent with the principle of checks and
balances. The scheme is founded on the trust that our system has for the role of the
President, namely, the responsibility it vests in the President to ‘uphold, defend and
respect the Constitution as the supreme law’, and thus to ensure that laws that he or she
assents to and signs, conform to the Constitution.’40
38 The first time the President did this was
Ex Parte President of the RSA In re: Constitutionality of the Liquor
Bill 2000(1) BCLR 1 (CC). In that case, the President had referred the Bill back to Parliament, which reconsidered
it and returned it to the President without any amendment. The Court made it clear that its role was to deal with
the reservations, not to pronounce definitely on the constitutionality of the Bill or certify it as valid in all respects.
Paragraphs 12 to 15.
39
In re: Constitutionality of the Mpumalanga Petitions Bill 2000 2001(11) BCLR 1126 (CC) paras 9 and 10.
40 Doctors for Life International v Speaker of the National Assembly and others 2006(6) SA 416 (CC) at para 53.
21
46. The Courts have decided various cases about section 79 and its provincial sphere
equivalent. Furthermore, general principles of public law are applicable to the exercise
of the President’s power, more particularly the requirements of legality and rationality
(both substantive and procedural). 41 In light thereof, certain propositions that are
instructive for purposes of delineating the President’s obligations in respect of the Bill
can be stated with relative confidence.
47. First, and perhaps most importantly, the President may only raise reservations about the
constitutionality of the Bill. This has important consequences for what the President may
not do.
47.1.
The President may not decline to assent to the Bill because he may disagree with
the policy choices underlying the Bill or prefer a different legislative solution to
a social problem. He does not enjoy any general discretion to veto a Bill.
47.2.
The President may not decline to assent to a Bill solely because he may be
concerned that a Bill, or a provision of a Bill, will result in South Africa not
complying with international obligations. He may only do so if the international
law obligation is either a requirement of the Constitution,42 or – when properly
41
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others 1999 (1) SA 374;
Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex
Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC);
Albutt v Centre for the Study
of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC);
Democratic Alliance v President of the
Republic of South Africa and Others 2013 (1) SA 248 (CC); and
Law Society of South Africa and Others v
President of the Republic of South Africa and Others 2019 (3) SA 30 (CC)
42 See, for example,
Glenister v President of the Republic of South Africa and Others 2011 (1) SA 347 (CC), in
which Moseneke DCJ and Cameron J held (at para 197):
“We therefore find that to fulfil its duty to ensure that the rights in the Bill of Rights are protected and
fulfilled, the State must create an anti-corruption entity with the necessary independence, and that this
obligation is constitutionally enforceable. It is not an extraneous obligation, derived from international
law and imported as an alien element into our Constitution: it is sourced from our legislation and from
22
interpreted in light of that obligation – a constitutionally-entrenched right will
be limited in an unreasonable and unjustifiable manner.43
47.3.
If the President were to decline to assent to a Bill for either of these two reasons,
he would then do so not because an international law obligation may be
breached, but because the Constitution may be breached. We point out that as a
result of the constraint on the President’s power in this regard, we do not
consider most of the “objections” that have been raised by certain stakeholders
about whether the Bill breaches any requirements of international law.44
48. Second, the President’s reservations about the constitutionality of a bill may be
substantive or procedural in nature.45 Procedurally, they can include reservations about
whether Parliament has facilitated public involvement in the legislative process.46 By
parity of reasoning, they would also include a reservation about tagging.
49. Third, the reservation(s) need not be such as to vitiate the Bill as a whole but may relate
to specific parts of it.47 In turn, the reservations must be specifically identified for and
responded to by Parliament. The President does not re-open the entire legislative process
our domesticated international obligations and is therefore an intrinsic part of the Constitution itself and
the rights and duties it creates.”
43 Section 39(1)(b) of the Constitution requires courts, when interpreting the Bill of Rights, to consider
international law. Moreover, section 233 states that
“[w]hen interpreting any legislation, every court must
prefer any reasonable interpretation of the legislation that is consistent with international law over any
alternative interpretation that is inconsistent with international law.”
44 This is the subject of the Myburgh submissions that have been supplied by Adams and Adams to the President.
We point out that we have considered whether the Three Step Test set out in the Berne Convention and Trips is
breached and have concluded that it is not. Moreover that appears to be the dominant view amongst scholars.
45
Doctors for Life International v Speaker of the National Assembly and others 2006(6) SA 416 (CC) at para 45
46
Doctors for Life International v Speaker of the National Assembly and others 2006(6) SA 416 (CC) at para 55
47
Ex Parte President of the RSA In re: Constitutionality of the Liquor Bill 2000(1) BCLR 1 (CC) at paragraphs
17 and 18
23
merely by raising one or two substantive reservations. The process is reopened only to
deal with the specific reservations.
50. Fourth, by raising a ‘reservation’ the President raises more than a mere concern. It is a
formal act whereby the President marks his genuinely held and well-grounded view that
a Bill or a provision of a Bill is probably unconstitutional. Put differently, the view would
need to be that it is reasonable to expect that a Court would find the Bill or a provision
of the Bill to be invalid. In the nature of things, it would probably suffice if this view was
formed on the strength of reputable and cogently reasoned legal opinion or advice.
51. Importantly, the fact that a third party may have expressed concerns about the
constitutional validity of a Bill might provide some cause for caution and investigation,
but on its own it is certainly not enough to ground a reservation as contemplated by
section 79. Indeed, third party concerns should be treated with some caution, as the
President should not exercise his powers in a manner that in effect serves partisan
interests or agendas. Furthermore, the existence of some uncertainty about constitutional
validity is not, in our view, a proper basis for the President to decline to assent to a Bill.
There will often be room for reasonable debate about such matters.
52. Fifth, the President has a duty to act within a reasonable time.48 What is reasonable will
always depend on the circumstances of a case. Factors that are relevant would include
the nature of the legislation, the circumstances in which it is enacted, whether it seeks to
48 Section 237 of the Constitution states:
“All constitutional obligations must be performed diligently and
without delay.” In
Khumalo v MEC for Education, KZN 2014 (5) SA 579 (CC) at para 46 (footnote omitted),
the Constitutional Court explained:
“Section 237 acknowledges the significance of timeous compliance with constitutional prescripts. It
elevates expeditious and diligent compliance with constitutional duties to an obligation in itself. The
principle is thus a requirement of legality.”
24
deal with matters that require urgent legislative redress, whether it seeks to protect
constitutional rights and so on.
53. For completeness, we point out that once the Bill becomes an Act of Parliament, it is
open to constitutional challenge in the ordinary course even before it comes into force.49
It is also open to members of the National Assembly to approach the Constitutional Court
in respect of its constitutionality.50
D. THE BILL ADVANCES RIGHTS AND THE CONSTITUTION51
54. When the President considers whether he entertains any constitutional reservations about
a bill, he will need to consider whether it ‘respects, protects, promotes and fulfills the
49
Khosa and others v Minister of Social Development and others; Mahlaule and others v Minister of Social
Development and others 2004 (6) SA 505 (CC) at paragraph 90 to 92. In terms of section 38(1) it comes into
force on a date to be fixed by the President by proclamation in the Gazette. This is apart from sections 5 (inserting
section 6A(7)), 7 (inserting section 7A(7)) and 9 (inserting section 8A(5)). While these also come into operation
on a date fixed by presidential proclamation in the Gazette, this must be preceded by the commencement of the
relevant regulations. It should be appreciated that this power is distinct from the power in terms of section 79 of
the Constitution. It is an exercise of public power that is close to the legislative process and that is not
administrative action.
Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) While the President is vested with
the power to determine when it would be appropriate to do so, similarly to section 79, the President may not use
this power to veto or otherwise block the legislation.
Ex Parte Minister of Safety and Security and others: In re
S v Walters and another 2002(4) SA 613 (CC) at para 73. The nature of the power to bring legislation into force
and the circumstances in which a Court will interfere with its exercise is dealt with by the Constitutional Court in
the
Pharmaceuticals case, supra. It includes considerations about time needed to prepare subordinate legislation
necessary to give effect to the law.
50 Section 80 of the Constitution provides that members of the National Assembly may approach the Constitutional
Court for an order declaring that all or part of an act is unconstitutional when supported by at least a third of the
members of the National Assembly and within 30 days of the date on which the President assented to and signed
the Act.
51 In this section and more specifically where we deal with the right of access to education, we have drawn heavily
from the underlying research and work done by Sanya Samtani, a PHD candidate at the University of Oxford
(Bonavero Institute for Human Rights). See Sanya Samtani, ‘The Right of Access to Educational Materials’, DPhil
Thesis, Faculty of Law, University of Oxford (forthcoming, copy on file). Samtani is writing on copyright and
the right of access to educational materials and has provided us access to her work on file. To our knowledge it
is the most comprehensive analysis of the subject in South African law. We are grateful for her assistance. We
have drawn from her work not only where we quote her directly but in forming our opinion and identifying
relevant authority.
25
rights in the Bill of Rights’ as this is the state’s duty in section 7(2) of the Constitution.
Importantly, even if the Bill does limit a right, (a matter we deal with below) a Court,
when considering constitutionality, will have to balance any right that may be limited
with other rights that are advanced by the Bill.
55. In our view, there are multiple rights that are respected, protected, promoted and fulfilled
by provisions of the Bill. This includes the right of access to education, the right to
freedom of expression (including to receive and impart information and to cultural and
artistic expression) and the rights to dignity and equality (including freedom from
discrimination especially for persons with disability).
The broad objectives of the Bill are consistent with constitutional values
56. First, we are of the view that the broad purposes of the Bill (set out above) are consistent
with constitutional values enshrined in the preamble and section 1 of the Constitution.
56.1.
The preamble to the Constitution recognizes the injustices of the past and
records that the people of South Africa adopted the Constitution, amongst other
things, to heal the divisions of the past and establish a society based on
democratic values, social justice and fundamental human rights, and to improve
the quality of life of all citizens and free the potential of each person. Rights
entrenched in provisions such as section 29 of the Constitution are central to
realizing this vision.
26
56.2.
Section 1 of the Constitution affirms that the South African state is founded on
values of human dignity, the achievement of equality and the advancement of
rights and freedoms, non-racialism and non-sexism, and supremacy of the
Constitution and the rule of law. Such values are clearly advanced when the
state takes legislative measures designed to remove barriers that unreasonably
restrict access to copyrighted materials and thereby undermine developmental
objectives.
Copyright unreasonably limits rights unless the law contains adequate exceptions and
limitations
57. Second, in our view, copyright protection without adequate limitations and exceptions
should itself be regarded as limiting rights protected in the Bill of Rights.52 This includes
at least each of the rights that are, in our opinion, advanced by the Bill: access to
education, dignity, equality, and freedom of expression. In the result, any legislative
measure that confers copyright protection on a knowledge good must make provision for
appropriate limitations and exceptions so as to be reasonable and justifiable in an open
and democratic society, and thus meet the test set out in section 36 of the Constitution.
52 This is dealt with in context of the right to education by Samtani. The barriers can operate because access is
either at the mercy of the market, or via a set of limitations and exceptions that are inadequate. Samtani at page
16, Chapter 5: Access To Educational Materials In South Africa.
Laugh it Off established that exclusive rights in
trademarks operate to limit the right to freedom of expression. But because the constitutional validity of the anti-
dilution prohibition under section 34(1)(c) of the Trade Marks Act 194 of 1993 had not been challenged, the
Constitutional Court had to
“assume without deciding that the limitation is reasonable and justifiable in an open
and democratic society to which our Constitution is committed.” This meant that the Court was impelled
“to a
construction of s 34(1)(c) most compatible with the right to free expression.” The non-discrimination proscription
is breached where people with disabilities are not able to access knowledge goods others have access to without
breaching copyright, or where exceptions are limited to persons with particular disabilities, thereby excluding
others with other disabilities. We are informed by Prof Andrew Rens that although the issue has not been dealt
with in South African courts, it has been widely acknowledged at an international level. In the time available we
have not been able to conduct independent foreign law research on point.
27
Put differently, in our view, the inclusion of fair use provisions that protect these rights
are necessary in order for the Bill, when enacted, to survive constitutionality scrutiny.
The Bill respects, protects, promotes and fulfills multiple rights in the Bill of Rights
58. In our opinion the Bill respects, promotes, fulfils and protects multiple rights protected
in the Bill of Rights. This is in part through the fair use provisions. We focus on the
rights to dignity and equality, freedom of speech and the right of access to education.
Dignity and equality
59. First, the Bill advances the closely related rights to dignity and equality. While the right
to dignity protects the intrinsic worth of all human beings, the right to equality precludes
unfair differentiations that ultimately have the capacity to have a negative impact on
dignity or human worth. The Bill advances the right to dignity protected in section 10 of
the Constitution, and the right to equality protected in section 9 of the Constitution, not
least the rights of persons with disabilities.53
60. The need for copyright law to advance the rights of persons with disabilities lies at the
heart of the Marrakesh Treaty,54 which requires contracting parties to make provision in
their laws for exceptions that permit the reproduction, distribution and making available
of published works in accessible formats, and to permit the exchange of such works.
53 In this regard, the UN Convention on the Rights of Persons with Disabilities ratified by South Africa in 2007 is
relevant. Samtani explains that the Convention ‘obliges states party to realize the right of persons with disabilities
to ‘inclusive education without discrimination.’ Samtani pat page 13, Chapter 5: Access To Educational Materials
In South Africa.
54 The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually
Impaired, or Otherwise Print Disabled
28
Those entitled to benefit have disabilities that interfere with the effective reading of
printed material. These include persons who are blind or visually impaired, or have a
physical disability that prevents them from holding and manipulating a book.55
61. At present, the 1978 Act does not contain any protection for this group. In contrast, the
Bill introduces special protections in section 19D by conferring a right to make accessible
format copies,56 for the benefit of persons with disabilities, under certain conditions
(including that the activity be undertaken on a not for profit basis). The Bill defines a
persons with a disability to mean ‘a person who has a physical, intellectual, neurological,
or sensory impairment and who requires the work to be in a format that enables that
person to access and use the work in the same manner as a person without a disability.’
62. While the Marrakesh Treaty is limited to printed materials, there is no good reason why
the principled basis underpinning the agreement – access to copyrighted materials for
persons with disabilities – should not apply with effect effect to other forms of protected
works. On the contrary, the right to equality and freedom from unfair discrimination (in
section 9(3) of the Constitution) precludes Parliament from adopting an approach that
only includes protections for persons with visual disabilities, with section 9(2) expressly
authorising the state to take
“legislative and other measures designed to protect or
advance persons, or categories of persons, disadvantaged by unfair discrimination”.57
55 See World Intellectual Property Organization, Summary of the Marrakesh Treaty to Facilitate Access to
Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, available at
https://www.wipo.int/treaties/en/ip/marrakesh/summary marrakesh.html
56 Defined as ‘a copy of a work in an alternative manner or form, which gives a person with a disability access
to the work and which permits such person to have access as feasibly and comfortably as a person without a
disability.’
57 Importantly, the study of Caroline Ncube and Blake Reid ‘Revising Scoping Study on Access to Copyright
Protected Works by Persons With Disabilities’ published by WIPO’s Standing Committee on Copyright and
Related Rights shows that a significant number of countries who are members of the Marrakesh Treaty have
deemed it necessary and appropriate to legislate exceptions for people with disabilities that go beyond the
29
The right to freedom of expression
63. Second, the Bill advances the right to freedom of expression protected in section 16 of
the Constitution. It does so in various ways, including by providing an exception to
permit the use of works for reporting current events, scholarship, teaching and education,
comment, illustration, parody, satire, caricature, cartoon, tribute, homage or pastiche, 58
and preservation of and access to the collections of libraries, archives and museums.59
64. The right to freedom of expression is also closely linked to education. As Samtani argues,
it includes the freedom to receive information, and learners’ freedom to participate in the
exchange of ideas by receiving and engaging with educational materials. In making
provision for a number of fair uses, as described above, the Bill enables the ability of
learners and artists to do so by enhancing access to works that would, otherwise, have
been inaccessible to most people for educational purposes and through library, archival
and museum collections.60
The right of access to education
provisions contemplated by the Treaty. See p 18. The study is available on the WIPO website. Caroline Ncube
is based at the University of Cape Town. Prof Reid is based at the University of Colarado Law Schools’
Samuelson-Glushko Technology Law and Policy Clinic.
58 Although in the context of trade mark law, the Constitutional Court held – in
Laugh it Off – that such
exceptions from intellectual property protection are constitutionally mandated. See above n 52
59 Section 12A(a)
60 Samtani, pages 37-38 Chapter 5: Access To Educational Materials In South Africa.
30
65. Third, the fair use provisions advance the right of access to education protected in section
29 of the Constitution.61 For example, fair use of a work for
“scholarship, teaching and
education” purposes does not infringe copyright in that work;62 neither does fair use of
a work for the
“preservation of and access to the collections of libraries, archives and
museums”.63
66. The right of access to basic education is immediately
realizable under the Constitution.
It is not, like other socio-economic rights, subject to the qualification that it be
progressively realised through reasonable legislative and other measures.64 Given the
particular challenges that South Africa faces in realizing the right of access to education,
we focus on this right and how the Bill assists to realise it.
67. Rens explains the factual backdrop to the right:65
“Approximately 15.9 million people are enrolled in formal education in South Africa.
The majority (88%) are in primary or secondary school, while only 2.7% are in
vocational training institutions (vocational colleges) and 4.7% in tertiary institutions. A
major obstacle is lack of educational resources. In 2013 more children at public schools
reported lack of books than any other problem in their education. The South African
government, through setting curricula, largely determines what is in textbooks,
61 This right will be interpreted by the Courts in light of international law. The relevant international law
treaties are set out helpfully by Samtani, supra as follows:
•
International Covenant on Economic, Social and Cultural Rights ratified in in 2015 which recognizes the
right to education;
•
the UNESCO Convention Against Discrimination in Education ratified in 2000 (Samtani explains that
States party to this convention undertake to promote equality of opportunity in education and prohibit
discrimination;
•
UN Convention on the rights of the Child ratified in 1995 (education must be made available free to all
progressively and on the basis of equal opportunity);
•
UN Convention on the Rights of Persons with Disabilities ratified in 2007. Samtani explains that the
Convention ‘obliges states party to realize the right of persons with disabilities to ‘inclusive education
without discrimination.’
62 Section 12A(a)(iv)
63 Section 12A(a)(vi)
64 The right to further education is subject to progressive realization.
65 Rens A ‘The right to education and the internet: Case study on the role of the internet in provision and
accessibility of educational resources in South Africa
Association for Progressive Communications (APC) May
2016
31
workbooks and the like. The state is also the main customer for the textbooks produced
according to its specifications. While a few textbooks are sold to private schools which
follow the national curriculum, they have no market power. Instead school textbooks are
produced for purchase by the state. Failure to deliver educational resources when it
occurs, is thus primarily due to the procurement processes of the state.”
68. We are instructed that in practice, the way that the market for textbooks works is that the
state specifies the content of textbooks, and pays for their production, while permitting
publishers to retain copyright. Absent adequate exceptions and limitations, teachers and
learners who wish to make copies of portions of such textbooks,66 or translations into
other South African languages, are prohibited by copyright from doing so. Furthermore,
Rens has explained further how promoting digital access to educational materials will
greatly enhance the ability of the state to realise the right of access to education in a
meaningful way for learners who are currently deprived of access to textbooks. However,
doing so requires changes to state procurement systems.
69. The need for the fair use provisions must therefore be considered in light of this factual
background, which we assume to be correct. It must also be viewed in light of the fact
that the Supreme Court of Appeal (
‘the SCA’) has held that the right to basic education
in South Africa includes the right to set textbooks.67
70. To our knowledge, Samtani’s important work best explains how a fair use exception for
education is mandated, if not, required by the Constitution. She, as does Rens, highlights
that education is considered an “empowerment right” which
“means that it provides the
basis for the development of further capabilities and enjoyment of other constitutional
66 Paid for by the state
67
Minister of Basic Education v Basic Education for All (2016 (4) SA 63 (SCA)
32
rights.”68 She explains further that the right to access to education materials has already
been held to be an integral part of the right to basic education under section 29 of the
Constitution by South African courts (including the SCA),69 and argues persuasively that
it must also be included in the right to further education.70
71. She correctly forefronts – with reference to Constitutional Court authority – that the
denial of access to adequate education for most people in South Africa must be
understood in light of our history.71 As part of its duties in respect of the right to
education, the state is thus under a positive obligation to facilitate access to text-books,
as well as a negative obligation not to pass obstructing legislation. Private players, often
the gatekeepers in the context of learning materials, have a negative obligation not to
impair or diminish the right of access to education,72 which includes access to text-books.
72. Samtani argues, we believe correctly, that where people can afford access to a socio-
economic right, the positive duty on the state entails unlocking a system to facilitate
access to text books, including in the private sector. But where people are poor, their
particular vulnerable status requires special attention. 73 A fair use exception for
educational purposes, that enables broad access to educational materials where needed,
68 See too: Rens A ‘The right to education and the internet: Case study on the role of the internet in provision
and accessibility of educational resources in South Africa
Association for Progressive Communications (APC)
May 2016
69
Section 27 v Minister of Education 2013 (2) SA 40 (GNP), 2013 (2) SA 40 (GNP) para 25;
Minister of Basic
Education v Basic Education for All [2015] ZASCA 198
Basic Education For All v Minister of Basic Education [2014] ZAGPPHC 251, 2014 (4) SA 274 (GP) 82.
70 Her analysis includes a consideration of case law to date and international law.
71 Citing
MEC for Education: KwaZulu-Natal v Pillay [2007] ZACC 21, 2008(1) SA 474 (CC) at 121-124 and
Governing Body of the Juma Musjid Primary School and others v Essay NO [2001] ZACC 13, 2011 (8) BCLR
761 (CC) 42
72 See
Juma Musjid, above n 71 at para 60
73 See Samtani at page 32, Chapter 5 Chapter 5: Access To Educational Materials In South Africa.
Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 para 36.
33
would both unlock the system for those who can afford to buy text books, and give special
attention to the particularly vulnerable.
E.
CONSTITUTIONAL CONCERNS WITH THE BILL?
73. In this section, we consider whether certain concerns raised relating to the Bill are such
that the President should have constitutional reservations as contemplated by section 79
of the Constitution. We commence by considering two procedural concerns relating to
public participation during the legislative process, and the tagging of the Bill as a section
75 bill. We then consider other objections that, in short, concern section 1 of the
Constitution and its protection of the rule of law, the right to property protected in section
25, and the right to freedom of trade, occupation and profession protected in section 22.
Was the Bill correctly tagged as a section 75 Bill?
74. The first procedural objection we consider is whether the Bill was correctly tagged as a
section 75 bill (an ordinary bill not affecting the provinces), or whether it ought to have
been tagged a section 76 bill (an ordinary bill affecting the provinces).74 The objection
we consider is leveled on the ground that the Bill is said substantially to affect trade and
customary law / cultural matters, both of which are functional areas listed in schedule 4
of the Constitution.75 If the objections are sound, this would mean that the Bill should
have been processed as a section 76 bill, and is invalid for this reason. 76 Although the
74 A structure in parliament known as the Joint Tagging Mechanism classifies a bill for procedural purposes
when introduced in parliament, which is known colloquially as ‘tagging’.
75 See submissions from Adams and Adams’ clients, paragraphs 14 to 23
76
Tongoane and Others v Minister of Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC). The
Constitutional Court held in
Tongoane that it is important to follow the process set out in section 76 when enacting
34
matter is not beyond debate, the objections do not provide a basis for concluding that the
Bill was correctly tagged.
75. It is important to bear in mind that under our Constitution, Parliament is vested with
plenary legislative powers. It can legislate
“with regard to any matter including a matter
within a functional area listed in Schedule 4 but excluding, subject to subsection (2), a
matter within a functional area listed in Schedule 5”. 77 Moreover, certain matters reside
within the
exclusive competence of Parliament such as foreign affairs and the justice
system. However, even where a matter falls within the exclusive competence of
Parliament, its provisions may
have implications for provinces’ competences.
76. The passage of a bill through Parliament follows one of three possible processes, set out
in sections 74 to section 76 of the Constitution. Different procedures are set out in the
Constitution depending on whether a bill is a constitutional amendment (a section 74
bill), an ordinary bill that does not affect the provinces (a section 75 bill), or an ordinary
bill that affects the provinces (a section 76 bill).78 Beyond procedural integrity, there are
other constitutional principles at stake, not least the value of co-operative government,
which is one of the pillars upon which our democratic dispensation rests.79
legislation that substantially affects the provinces and the failure to do so
“renders the resulting legislation
invalid.” Importantly, the degree of provincial control over a section 76 bill is more extensive than where a section
75 bill has been tabled. Also different is the manner in which the provinces exercise their vote in the National
Council of Provinces, more particularly whether the NCOP votes by individual delegate (section 75) or by
mandate from the provincial legislature (section 76). Moreover, in that case, the Constitutional Court rejected an
argument that the validity of the legislation could be saved in circumstances where the NCOP had unanimously
approved the impugned legislation albeit adopted via a section 75 procedure. One of the reasons for this is because
the voting procedure in the NCOP is different when a section 76 Bill is in process in that provinces each vote with
a single vote on a mandate procured from the provincial legislature. On this authority and reasoning, it does not
matter that in the present case the NCOP adopted the Bill without amendment. If the Bill ought to have been
tagged as a section 76 Bill, the Bill is invalid.
77
Premier: Limpopo Province v Speaker of the Limpopo Provincial Government and others 2011(11) BCLR
1181(CC).
78 For completeness we point out that money bills, dealt with in section 77 of the Constitution must be passed in
terms of the procedure in section 75.
79
Tongoane at para 67-68 and
Liquor Bill at para 74. Chapter 3 of the Constitution.
35
77. A bill must be passed under the section 75 procedure if it is a bill
“other than a Bill to
which the procedure set out in section 74 or 76 applies.” In respect of the Bill, the
concern is whether section 76 applies. Bills that must be tagged as section 76 bills are
bills referred to in sections 76(3), (4) and (5) of the Constitution. Relevant for present
purposes, section 76(3) includes bills falling within the functional areas listed in schedule
4 of the Constitution, these being functional areas of concurrent provincial and national
legislative competence.
78. It is, however, important to note that the test for tagging is different to, and more
expansive than, the test for determining whether a law falls within the legislative
competence of a sphere of government.80 That said, the test for tagging depends – to
some extent – on whether a bill falls within the exclusive legislative competence of
national government, or a functional area of concurrent national and provincial
legislative competence. As the Constitutional Court explained in
Tongoane:81
“To summarise: any Bill whose provisions substantially affect the interests of the
provinces must be enacted in accordance with the procedure stipulated in s 76. This
naturally includes proposed legislation over which the provinces themselves have
concurrent legislative power, but it goes further. It includes Bills providing for
legislation envisaged in the further provisions set out in s 76(3)(a) – (f), over which the
provinces have no legislative competence, as well as Bills, the main substance of which
falls within the exclusive national competence, but the provisions of which nevertheless
substantially affect the provinces. What must be stressed, however, is that the procedure
envisaged in s 75 remains relevant to all Bills that do not, in substantial measure, affect
the provinces. Whether a Bill is a s 76 Bill is determined in two ways. First, by the explicit
list of legislative matters in s 76(3)(a) – (f); and second by whether the provisions of a
Bill in substantial measure fall within a concurrent provincial legislative competence.”
80 Tongoane and
Liquor Bill, supra.
81
Tongoane at para 72
36
79. In our view, copyright – like other forms of intellectual property – is a subject matter that
ordinarily falls within the exclusive national legislative competence. In light of the
following four considerations, we are of the view that a court would probably find that
legislating for copyright recognition regimes is an exclusive national competence.
79.1.
First, the Bill deals centrally with regulating the incidents and nature of a class
of rights, being copyright or rights to knowledge goods. Copyright is a species
of intellectual property, albeit a distinct and unique one.82 There is no express
reference in either Schedule 4 or 5 to intellectual property, and the subject matter
does not naturally fall within any of the items that are expressly referred to.
79.2.
Second, in nature, copyright exists incorporeally, and is not place-bound in its
exercise. Given these features, national regulation is not only necessary, but it
is difficult to conceive practically how national regulation could coexist with
provincial legislation that sets up any independent rights recognition scheme.
79.3.
Third, a consideration of foreign law provides support for the case that copyright
is ordinarily treated as an exclusive national (or federal) competence. Although
every country’s Constitution needs to be understood and interpreted in light of
its own distinct provisions, it appears to be common place for countries with
federal / state systems to treat copyright, at least in the main, as a federal or
national competence. In this regard, we have considered the United States,
82 We emphasise at this juncture that recognizing that copyright is a species of intellectual property does not
mean that it is constitutionally protected property as contemplated by section 25 of the Constitution.
37
Canada, Germany, Nigeria, Australia and India. For present purposes, we do
not detail our research and findings.
79.4.
Fourth, we are of the view that the assumption of international obligations in
respect of intellectual property rights results in any copyright recognition regime
to be nationally rather than provincially regulated. In this regard, the copyright
regime is both inward-looking and outward-looking in that it regulates the
treatment of copyright internally in South Africa, but also internationally. The
latter concerns both the treatment of rights originating in South Africa, when the
knowledge good is exported, as well as rights originating externally. Under
international law, South Africa is required to accord “national treatment” to
foreign persons in respect of copyright in terms of obligations arising out of
membership of the World Trade Organization.83
80.
Tongoane makes it clear, however,
“that legislative competence is not determinative of
when the Constitution requires the more burdensome processes prescribed by s 76 to be
followed.”84 That said, the test for tagging is not whether any of the Bill’s provisions
substantially affect a matter listed in schedule 4, but rather whether the Bill’s provisions
– read as a whole – substantially affect functional areas listed in Schedule 4.85
83 Article 3(1) of the General Agreement on Tariffs and Trade, incorporated into the World Trade Organisation
framework by the Uruguay Round Agreements on 1 January 1995 provides:
Each Member shall accord to the
nationals of other Members treatment no less favourable than that it accords to its own nationals with regard
to the protection of intellectual property, subject to the exceptions already provided in, respectively, the Paris
Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property
in Respect of Integrated Circuits
84
Tongoane at para 61
85
Tongoane at para 59
38
81. The facts in
Tongoane are particularly instructive. In that case, Parliament had processed
the Communal Land Rights Act 11 of 2004 (
‘CLARA’) as a section 75 bill, because –
in its view – the main purpose of the legislation was land tenure, an exclusive national
competence. It was submitted that
“[a]ny provision of CLARA that deals with indigenous
law or traditional leadership, matters listed in Schedule 4, is incidental to land tenure”,
and is accordingly,
“irrelevant for the purposes of tagging CLARA”.86
82. But applying the test for tagging, the Constitutional Court held that
“the provisions of
CLARA in substantial measure affect ‘indigenous law and customary law’ and
‘traditional leadership’, functional areas listed in Schedule 4.”87 It explained why:88
“CLARA replaces the living indigenous law regime which regulates the occupation, use
and administration of communal land. It replaces both the institutions that regulated
these matters and their corresponding rules. CLARA also gives traditional councils new
wide-ranging powers and functions. They include control over the occupation, use and
administration of communal land.”
83. The specific concern raised by some stakeholders in respect of the tagging question is
that specific provisions of the Bill may substantially affect trade, as well as customs of
traditional communities (and in turn cultural matters), which are functional areas of
legislative competence referred to in Schedule 4 of the Constitution.
83.1.
In respect of trade, the contention is that the Bill substantially affects trade as it
sets out a regime that will regulate commercial transactions relating to
copyright.89 These include the terms on which copyright shall be transacted, the
86
Tongoane at para 50
87
Tongoane at para 97
88
Tongoane at para 96
89 See submissions paragraphs 14 to 18.
39
Minister’s authority to make regulations prescribing terms of such transactions
and licensing of copyright, artists’ resale rights,90 and licensing for acts in
respect of orphan works.91
83.2.
In respect of customs of traditional communities, the contention is based on the
Memorandum that accompanied the Bill where it states that the Bill has an effect
on customs as it provides for royalties to be paid for indigenous works,92 and
for the registration of collecting societies to administer rights on behalf of
copyright owners or authors. Further, it is contended that the reference of the
Bill by Parliament to the National House of Traditional Leaders, in accordance
with section 18(1) of the Framework Act, necessarily means that the Bill affects
custom (and in turn cultural matters).93
84. Having regard to prior case law, the Courts have considered the following four matters
relevant to a determination whether a bill substantially affects the provinces: (a) the
purpose of the Bill;94 (b) legislation designed to be implemented by the provincial
governments may be indicative of such effect;95 (c) the existence of provincial policy on
90 Section 7B of the Bill
91 An orphan work is defined in section 1 as a work in which copyright subsists and the owner of a right in that
work cannot be identified or is identified but cannot be located. The licensing provisions are in section 22A of
the Bill.
92 When IPLAA comes into force, ‘indigenous works’ will (in terms of section 1 of the 1978 Act) mean ‘a literary,
artistic or musical work with an indigenous or traditional origin, including indigenous cultural expressions or
knowledge which was created by persons who are or were members, currently or historically, of an indigenous
community and which literary, artistic or musical work is regarded as part of the heritage of such indigenous
community’
93 See Adams and Adams’ clients’ submissions, paragraphs 19 to 23.
94
Ibid at para 77
95
South African Municipal Worker's Union v Minister of Co-Operative Governance and Traditional Affairs (3558/2013) [2016] ZAGPPHC 733 (23 February 2016) at para 153. See also Christina Murray and Richard
Simeon, in the article "Tagging" Bills in Parliament section 75 or section 76” published in 2006 Volume 123
Issue 2 SALJ at page 232.
40
the subject of the bill in question may suggest it affects the provinces in substantial
measure;96 and (d) the extent of intrusion on provincial jurisdiction is relevant.97
85. In our view, the concerns raised do not lead to the conclusion that the Bill was incorrectly
tagged. As we have already indicated, the provisions of the Bill centrally concern matters
that reside in the exclusive legislative competence of the national Parliament. And as we
explain below, the provisions in respect of which concerns are raised – considered
collectively – do not substantially affect any matter that resides within a provincial
competence. In so doing, we are mindful of the need to be cautious of
“blind adherence
to a strictly verbal interpretation” that
“would result in a large number of statutes being
declared invalid”.98
86. In respect of trade, the argument is, centrally, that ‘trade’ has been defined by the Courts
as ‘buying and selling’, and as material provisions of the Bill concern the terms on which
copyright may be assigned and royalties shared, this necessarily affects trade. In our view
this argument oversimplifies the issue.
86.1.
First, the case relied on to give meaning to the term ‘trade’ in Schedule 4 –
Battis
v Elcentre Group Holdings Ltd99
– predates the enactment of even the interim
Constitution, and simply
was not about the meaning of the term in context of
Schedule 4 of the Constitution. To the extent that the Constitutional Court
96
Ibid
97
Ibid.
98 The quotations are from an Indian case, referred to and quoted in
Western Cape Provincial Government and
Others In Re: DVB Behuising (Pty) Limited v North West Provincial Government and Another 2001 (1) SA 500
at footnote 53. See also
South African Municipal Worker's Union v Minister of Co-Operative Governance and
Traditional Affairs (3558/2013) [2016] ZAGPPHC 733 (23 February 2016) para 29.
99 1993 (4) SA 69 (W) at 73l
41
sought to give meaning to the term ‘trade’ in the
Liquor Bill case, we this was
to draw a distinction between the liquor trade, a functional area of concurrent
legislative competence, and liquor licences, a functional area of exclusive
provincial legislative competence; it was not to provide a definitive definition
of the term.
86.2. Second, Mahomed J, who authored the
Battis judgment, expressly recognised
that the meaning of trade is context dependent (even where it may involve
buying and selling), and that the term may embrace transactions that do not
constitute buying and selling.100 Thus, even giving the term its natural meaning,
‘buying and selling’ may thus be both too narrow and too broad.
86.3. Third, whatever its ambit, trade in schedule 4 does not – in our view – include
the
incidents, nature and extent of copyright protection, or transactions in
respect of copyright. The transactions that are said to constitute trade (and that
are governed by the Bill) essentially confer an inalienable right to a fair share in
royalties, and create a dispute resolution mechanism to determine what this is
where parties fail to reach agreement.
86.4. The only way in which copyright may be traded (in the sense of being bought
and sold) is by way of assignment. Outside of the context of assignments, a
commercial transaction in respect of a copyrighted work would ordinarily
involve the right to do with the work that which would otherwise be prohibited.
While there are some provisions in the Bill dealing with the assignment of
100 See p 73A-C
42
property, the concerns raised by stakeholders primarily consider those
provisions of the Bill that deal with the
incidents, nature and extent of copyright
protection.
87. The argument on trade is sought to be advanced further by contending that trade in art is
affected because the Bill confers on artists resale royalty rights (sections 7B-F), and
licensing requirements in respect of orphan works (section 22A). In our view, these
provisions are similarly concerned with the incidents, nature and extent of copyright
protection, and while they may indirectly impact on trade, especially the art trade, they
do not substantially affect it. The resale right confers a royalty right, and the orphan
works provision effectively creates a national regulatory mechanism to make copyright
real – and not illusory – for orphan works.
88. The argument presented about cultural matters is very narrowly framed, and hinges on
the inclusion of indigenous works being amongst those to which the Bill shall apply.
Indigenous works will in future by regulated by the 1978 Act as a result of IPLAA and
when IPLAA is brought into force, they will be affected by some of the amendments.
However, the mere presence of an effect on the ‘interests, concerns and capacities’ of the
provinces does not lead to the bill being classified as a section 76 bill. It is only where
the impact is substantial that this should happen. In our view, where there are impacts,
they are not substantial. We have considered the following:
88.1.
First, the substantial impact on custom and customary law by copyright law
reform (and in turn this aspect of al matters) arose when IPLAA was enacted as
IPLAA created a statutory basis for copyright protection of these works. This
43
would have had a dramatic impact on customary law, which is subject to
legislation in terms of section 211(3) of the Constitution. Thus, while IPLAA
was ultimately correctly tagged as a section 76 bill, it does not follow that the
Bill ought also to have been.101
88.2.
Second, no substantial argument has been developed why the Bill substantially
affects custom, customary law (and in turn this aspect of cultural matters) and
the impact has not been demonstrated. The high water mark of the argument
expressly made appears to be that collecting societies who may in future become
involved in assisting traditional communities to collect royalties are now subject
to greater regulation in the public interest. But this does not affect any custom.
It affects how collecting societies are regulated. And importantly, the Bill does
not cause the potential involvement in collecting societies – that was caused by
IPLAA.
88.3.
Third, indigenous works are largely regulated by the new Chapter 2A –
comprised of sections 28A to 28N – that will be inserted into the 1978 Act by
IPLAA. This is a self-standing chapter that contemplates the regulation of
indigenous works in largely distinct ways. It is only subject to the remainder of
the 1978 Act (and in turn the amendments contemplated by the Bill) in limited
ways. For example, and notably, section 28G expressly regulates exceptions to
copyright conferred on these works, such as fair use for educational purposes.
101 When detailing the legislative history above, we pointed out that Adams and Adams have sought to place
reliance on an opinion by Advocates Marcus SC and Yacoob. The opinion concluded that the correct way to tag
IPLAA was as a section 76 Bill. Accordingly, the opinion is of no application to the Bill.
44
88.4.
Fourth, the impact of the Bill on indigenous works is either minimal or indirect,
for example by strengthening the regulation of collecting societies in the public
interest and by extending copyright protection to acts common in the digital
age.102 The introduction of the new sections 6A, 7A, and 8A do not appear to
apply to indigenous works and the process for determining a right to royalties
will rather be governed by section 28.
88.5.
Fifth, there is no need for any provincial implementation of this aspect of the
Bill nor any identified or known impact on provincial policy.
89. Further, we do not think that the fact that Parliament referred the Bill to the National
House of Traditional Leaders in terms of section 18(1) of the Framework Act is, on its
own, relevant. Indeed, it appears to us to have been a cautious but probably unnecessary
referral. In terms of section 18(1) of the Framework Act, any law that ‘pertains to
customary law or customs of traditional communities’ must be referred for input. In light
of the considerations above, it is difficult to see what customs of traditional communities
are in fact affected by the Bill.
90. Without suggesting that we have considered every possible argument or each provision
of the Bill, we have considered whether there are any other Schedule 4 competences that
are obviously substantially affected by the new royalty provisions or the fair use
provisions of the Bill. More particularly, we have considered whether the competence of
education103 is affected. We have also considered any impact on cultural matters in its
102 By way of amendments to sections 6 to 9 made applicable to indigenous works by Section 28H.
103 Education other than tertiary education is a Schedule 4 competence.
45
broad sense of the arts and human intellectual achievement, in other words not limited to
traditional cultural matters.
91. It is indisputable that the fair use provisions of the Bill are intended to, and will have
important consequences for, access to education and the promotion of cultural
expression. In respect of the latter, it is designed to unlock creative efforts in all cultural
spheres. But it does not follow that it will substantially affect these competencies in the
sense contemplated by
Tongoane. In our view it does not because these provisions, while
indisputably intended to benefit broader educational and cultural objectives, serve to
delineate the incidence, nature and extent of copyright protection, and do not extend
beyond what we regard to be exclusive national legislative terrain. Put differently, they
simply create a rights recognition regime.
Public participation
92. The second procedural objection relates to the constitutional obligation on Parliament to
facilitate public involvement in the legislation process. In terms of section 59(1)(a) of the
Constitution, the National Assembly must “
facilitate public involvement in the legislative
and other process of the Assembly and its committees”. The same obligation is imposed
on the NCOP in terms of section 72(1)(a).
93. The Constitutional Court has held that the consequence of a failure to comply with these
duties is that legislation is invalid.104 In
Doctors for Life,
the Court considered the nature
104
Doctors for Life International v Speaker of the National Assembly and others 2006(6) SA 416 (CC) at
paragraph 209;
Matatiele Municipality and others v President of the TSA and others (No 2) 2007(6) SA 477 (CC)
46
and scope of the duties of the NCOP, and the extent to which these duties are justiciable.
The Court held that the
“duty to facilitate public involvement in the legislative process
is an aspect of the right to political participation.”105 It entails taking part in the conduct
of public affairs and is a form of participatory democracy. 106 It is a right that is
recognized in international law, and which is bolstered by the right to freedom of
expression protected in section 16 of the Constitution (which includes a freedom to seek,
receive and impart information), and the political rights protected in section 19 of the
Constitution.
94. The Constitutional Court held that ‘
Parliament and the provincial legislatures must be
given a significant measure of discretion in determining how best to fulfill their duty to
facilitate public involvement.’ 107 However, in an appropriate case, the courts will
determine whether there has been
“the degree of public involvement that is required by
the Constitution”.108 In each case, the NCOP must act reasonably in carrying out its duty
to facilitate public involvement: there must be a reasonable opportunities to know about
the issues and to have an adequate say. What is reasonable will depend on the
circumstances of each case.109 As the Court held:
“Reasonableness is an objective
standard which is sensitive to the facts and circumstances of a particular case.” Context
is all important.110
South African Veterinary Association v Speaker of the National Assembly and others 2019(3) SA 62 (CC) at para
19 and para 23.
105 At paragraph 89
106 See esp para 115 and 116
107 At paragraph 124.
108 Id.
109 At paragraph 125. The Court upheld the statements to this effect made by Sachs J in his minority judgment
in the
New Clicks matter at para 630
110 At paragraph 127. The Court’s summary of its findings is instructive as regards the general approach to
follow. See paragraphs 145 and 146.
47
95. The principal objection raised in respect of the Bill is that after public hearings were held
in the National Assembly in August 2017, substantial changes were made to the Bill, in
respect of which public comment was not sought before the Bill was passed.111 The
objectors refer specifically to section 12A(1)(a) – the new fair use provision – to
demonstrate the substantial nature of the changes that were made.
96. The Bill as introduced (B13-2017) contemplated the use, in the new proposed section 12,
of a fair
use exception, thus removing the language of fair
dealing. It then incorporated
a closed list of permissible uses after the introductory words:
‘‘for the following
purposes”. Such language denotes a closed list.
97. As adopted, the Bill makes provision for an open list: the introductory words were
changed to say:
“purposes such as the following”. The objectors say that this alteration
effects a change from a “fair dealing” to a “fair use” exemption, which is a significant
change with far-reaching effects. In this regard, the objectors also point out that the
Explanatory Memorandum to the Bill referred to
“reproduction of copyrighted material
for limited uses or purposes”. The fair use exemption embodied in the open list is, they
submit, not limited, and so the Bill deviates significantly from the stated objective.
98. In
SA Veterinary Association,112 the Constitutional Court held that where a committee
makes a material amendment to a Bill, this triggers a duty on the committee, as far as
possible, to invite further public comment. Importantly, however, this finding was made
in the context of an amendment that made a Bill applicable to a sector not originally
111 See Adams and Adams clients’ submissions at paragraphs 47 to 54
112 Supra at paragraphs 24 to 27, 31 to 32 and 46.
48
contemplated by the Bill at all – veterinarians. Its materiality was thus self-evident and
dramatic.
99. In our view, even if one takes a wide view of the
SA Veterinary Association precedent
,
the change identified by the objectors to the proposed section 12 during the committee
process was not a material deviation that triggered a duty on Parliament to consult further.
We say so for at least three reasons.
99.1.
First, the shift from fair dealing to fair use was always a live issue for
consultation, given that the Bill – as introduced – contemplated the use of the
language of fair use, whereas the 1978 Act uses the language of fair dealing.
Indeed, this can properly be regarded as a key policy pillar of the Bill as
introduced. This appears from various sources including prior policy statements,
the Committee’s deliberations,113 the nature of the submissions made, and the
DTI’s presentation of policy issues underlying the Copyright Amendment Bill.
99.2.
Second, in our view the change was not intended to introduce a wholly open-
ended list of permissible purposes. For this reason alone, it is not a material
departure. In this regard, a court would not interpret the list as being open-ended
in line with the
eisdum generis maxim of statutory interpretation. It literally
means ‘of the same kind’ and it is “a contextual device that can be employed to
restrict the meaning of general words by reference to specific words in their
113 The issue of fair use v fair dealing is described as a policy issue arising from submissions in the Portfolio
Committee’s report.
49
immediate vicinity”.114 The Three-Step Test contemplated by the Berne Treaty
and TRIPS would, furthermore, provide an additional reason to interpret the
clause ‘such as’ narrowly to the extent that that is what the test requires.115
99.3.
Third, and in any event, a reasonable participant in the legislative process would
in our view have understood that the scope of any permissible exceptions under
the fair use rubric was very much a matter that warranted comment on the Bill
as introduced. This would have included whether the list should be a closed list
or an open list.
99.4.
That this is so manifests from a consideration of the PMG reports themselves,
and the fact that the Portfolio Committee in fact expressly canvassed the issue
of the use of the language ‘such as’ with stakeholders on 1 August 2017.116 On
3 August 2017, there was further engagement on fair use. It is thus not surprising
that the PMG minutes – to which we have had access – show that the issue of
fair use was, from the outset, identified as a key issue for the committee’s
specific deliberations following the hearings in 2017.
114 'The
eiusdem generis rule is… contextual interpretation which is encapsulated in the maxim
noscitur a sociis.
According to this maxim, particular words are coloured by their association with other words.' (Devenish
Interpretation of Statutes (1992) at 74.) “Where words which have a limited or particular meaning are followed
by a phrase of general application, the meaning of the said phrase is restricted to the generic meaning of the
preceding words (Du Plessis The Interpretation of Statutes (1986) at 154.) 'To invoke the application of the
ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different
objects of a widely differing character but to something which can be called a class or kind of objects. Where this
is lacking, the rule cannot apply.' (Craies Statute Law 7th ed at 181.) Devenish Statutory Interpretation p 70.
115 The Three-Step Test is an international standard used to determine whether exceptions and limitations of
copyright, and more particularly the holder’s exclusive right of reproduction, are acceptable. Though framed in
different language, it forms part of both the Berne Convention and TRIPS.
116 The relevant portion of the summary of the public hearings reads: ‘The Committee asked for the stakeholders’
views on the incorporation of the doctrine of ‘fair use’, the use of the phrase ‘such as’ for exceptions, … The
committee commented that the task of legislators was to develop relevant legislation in a fast changing
environment which could be used for at least five to eight years before it was reviewed. The stakeholders therefore
needed to confirm whether the language of the proposed Bill was too limited to accommodate the technical
advances concerning the publication of copyright works.’
50
100. We are mindful that the objectors raise the above issue as an example of material
deviations. But none others are identified. It can and should be noted, however, that
according to the Portfolio Committee’s report, the Committee did consult further on new
issues that it assessed warranted further consultation. Indeed, as set out above, it reopened
comment four times when new issues arose. At least on the face of it, the Committee thus
appears to us to have been very alive to the contours of the duty to consult, and the need
to consult further when it introduced material amendments.
101. A Court would consider whether Parliament complied with its public participation duties
in light of a specific objection about the process. It would not conduct an ex post facto
and abstract assessment of whether the process that was followed was generally
compliant. Nevertheless, it can be noted that at least on the face of it, the process was
extensive both in and prior to Parliament.
102. It is also material to note that the objectors who are raising the complaint were as a matter
of fact specifically heard, and their objections specifically considered by the NCOP.
While they were heard as a collective in the NCOP, some of the entities had previously
elected to participate individually during the National Assembly process. The fact that
Parliament disagreed with them does not mean that there was any procedural defect in
the process.
103. We are thus of the view that the public participation argument raised is devoid of any
merit.
51
Fair use and the property clause
104. In this section, we consider specifically whether the new or widened exceptions and
limitations introduced in the Bill are an arbitrary deprivation of property within the
meaning of section 25(1) of the Constitution. We have considered the question in light
of the inclusion of the new or widened purposes in section 12A(a)(iv) to (vi), being
scholarship, teaching and education; comment, illustration, parody, satire, caricature,
cartoon, tribute, homage or pastiche, and preservation of and access to the collections of
libraries, archives and museums. We have also considered the introduction of the words
‘such as’ in section 12A(a), which is said to convert the fair dealings clause to an open
ended fair use clause.
105. Section 25 provides:
“No law may permit arbitrary deprivation of property.” In order
to constitute an arbitrary deprivation of property, the thing concerned must be
constitutionally-protected property, there must be a deprivation, and the deprivation must
be arbitrary.
106. We have noted that various participants in the legislative process have adopted the view
that the Constitutional Court has decided that copyright, as intellectual property, is
constitutionally-protected property in terms of section 25 of the Constitution.117 But that
is not so. On a careful analysis of the relevant case law, we take the view that the
Constitutional Court has not decided the question. Instead, its focus was on the manner
117 The argument is typically advanced on the basis that this question has been decided by the Constitutional
Court either in
Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC) at para
75 or in
Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark
International and Another 2006 (1) SA 144 (CC) at para 17.[
52
in which a provision of the Trade Marks Act was to be interpreted so as to be consistent
with the constitutional guarantee of free expression.
107. Furthermore, it is a contested and difficult issue.118 Because of the view we take on the
question of arbitrariness, we simply assume for purposes of this part of the opinion –
without considering the question – that copyright is constitutionally-protected property.
108. The Constitutional Court has given meaning to the concept of ‘deprivation’. It did so first
in the
FNB case .119 Put simply, it means a substantial interference with a property right,
one that has a legally significant impact on the rights of the affected party.120 The
question whether the new and expanded clauses constitute deprivations of property is not
simple to answer. Again, because of the view we take on the question of arbitrariness,
we simply assume for purposes of the opinion – without considering the question – that
there is a deprivation.
109. The pivotal question that arises in respect of section 25(1) is, we believe, whether any
alleged deprivation is
arbitrary. If the answer to this is No, as we believe it is, then the
same reasoning will apply in respect of certain other arguments advanced that we
consider below.121 Put differently, if the limitations and exceptions pass muster under the
test for arbitrary deprivation in terms of section 25(1), they will pass muster for these
118 Samtani, p43, Chapter 5: Access To Educational Materials In South Africa demonstrates how the
Constitutional Court considers each case on its own facts and argues that copyright should not be recognized as
constitutionally protected property.
119
First National Bank of South Africa Limited trading as Wesbank v Commissioner, South African Revenue
Service and another; National Bank of South Africa Limited trading as Wesbank v Minister of Finance 2002(4)
SA 768 (CC) at paragraph 100.
120
Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC) at para 59;
South
African Diamond Producers at para 48.
121 These grounds include an alleged breach of section 1 of the Constitution and section 22 of the Constitution
53
other purposes too. This is because the test for arbitrariness in section 25(1) is relatively
broad.
110. How is a court to determine whether a deprivation of property is arbitrary? In short, the
test is whether there is a sufficient purpose for the deprivation. As the Constitutional
Court explained in
FNB:122
“(a) It is to be determined by evaluating the relationship between means employed,
namely the deprivation in question and ends sought to be achieved, namely the
purpose of the law in question;
(b) A complexity of relationships has to be considered;
(c) In evaluating the deprivation in question, regard must be had to the relationship
between the purpose for the deprivation and the person whose property is affected;
(d) In addition, regard must be had to the relationship between the purpose of the
deprivation and the nature of the property as well as the extent of the deprivation
in respect of such property;
(e) Generally speaking, where the property in question is ownership of land or a
corporeal moveable, a more compelling purpose will have to be established in
order for the depriving law to constitute sufficient reason for the deprivation than
in the case when the property is something different and the property right
something less extensive. This judgment is not concerned at all with incorporeal
property.
(f)
Generally speaking, when the deprivation in question embraces all the incidents of
ownership, the purpose for the deprivation will have to be more compelling than
when the deprivation embraces only some incidents of ownership and those
incidents only partially.
(g) Depending on such interplay between variable means and ends the nature of the
property in question and the extent of its deprivation, there may be circumstances
when sufficient reason is established by, in effect, no more than a mere rational
relationship between means and ends; in others this might only be established by
a proportionality evaluation closer to that required by section 36(1) of the
Constitution.”
111. In our view, and on the information to hand, the limitations and exceptions would pass
scrutiny under this test. We have considered a range of issues.
122 At para 100. Although the judgment specifically states that it is not concerned with incorporeal property, we
consider this test because if it is met, then it is likely that any different test for incorporeal property would probably
also be met.
54
111.1. First, the new purposes contemplated by the limitations and exceptions are,
without question, legitimate, indeed crucial public purposes. These relate most
centrally to equality, facilitating access to knowledge for persons with
disabilities, access to education, freedom of expression and access to
information and ideas. In a country with the wealth disparity and development
needs of South Africa, it is crucial that the legislature adopts measures to
achieve these purposes. South Africans are calling out for development and
demanding greater access to knowledge. Importantly, the objects of the Bill are
centrally to advance the values and rights in the Bill of Rights.
111.2. As regards the right of access to education in particular, the lack of access to
educational materials is a dire problem in South Africa. For the most part, people
who will be able to benefit from the new and expanded exceptions are likely to
be those who are currently not receiving access at all, and who will never be
able to pay for it, not those who do and can.123
111.3. Second, the “property” is incorporeal in nature. It is not fixed in place or quantity
and is not depleted through use. On the contrary, it can be enhanced through
greater use.
111.4. Third, the Bill carefully seeks to balance the nature and extent of a creator’s
copyright protection (which in some respects is enhanced under the Bill) with
exceptions and limitations in the public interest. In our view, it does so carefully,
and in a justifiable way, having regard to the following:
123 See Samtani, supra
55
111.4.1. There is no unbridled or open ‘licence’ to copy or use without
permission. On the contrary, the limitations and exceptions are framed
fundamentally by the principle of
fair use, which in turn is determined
by the application of the four-factor test in section 12A(b). Fairness is
a flexible but well-worn and well-understood concept in multiple
contexts in South African law.
111.4.2. Moreover, the four-factor test introduces important principles that yield
a proportionate relation between the copyright holder and the user.
They include the nature of the work in question, the amount and
substantiality of the part of the work affected in relation to the whole
of the work, the purpose and character of the use (including if it is of a
commercial nature or for non-profit purposes), and the substitution
effect of the act upon the potential market for the work in question.
111.4.3. Proportionality is expressly infused in some of the more specific
exceptions. For example, quotations do not infringe copyright
provided, amongst other things, their extent does not exceed what is
reasonably justified by the purpose.124 Similar constraints apply to
other specific exceptions. Importantly, it constrains the making of
copies for educational and academic activities.125 It is not permissible
to make copies of a whole textbook unless it is out of print, the owner
124 See section 12B(1)(a)(i)
125 See section 12D(1)
56
cannot be found, or it is not possible to purchase the book in South
Africa or at a reasonable price.
111.4.4. Avoiding undue commercial prejudice is built into the test for fairness
via the four-factor test. Moreover, some exceptions apply only when
use is for a non-commercial purpose, such as translating a work.126
Avoiding commercial prejudice is also built into the section dealing
with copying for educational purposes, in that the right to make copies
does not extend to reproductions for commercial purposes.
‘Commercial’ is defined to mean ‘the obtaining of economic advantage
or financial gain in connection with a business or trade.’127
111.4.5. The use of the words ‘such as’ to introduce the new and expended
purposes in section 12A does not open the door widely, without
constraint, to new purposes; the language itself does not introduce any
element of real uncertainty. On the contrary, the terms will be
interpreted restrictively, in line with the
eiusdem generis maxim and
the Three-Step Test.
111.4.6. In countries where there are fair dealings clauses, such as Canada,
courts may, at times, interpret the purposes very broadly and flexibly
to accommodate new developments. The same result is thus achieved
through different legislative means. The inclusion of the term ‘such as’
126 See section 12B(f)
127 Section 1
57
arguably precludes artificial reasoning to accommodate analogous
purposes necessary to achieve the legitimate purposes of the Bill.128
112. Some of those opposed to the Bill have suggested that to the extent that any of the
exceptions constitute deprivations of property, such deprivations are arbitrary because
they do not make use of less – or the least – restrictive means to achieve the same result.
Although Courts will consider less restrictive means when considering whether
deprivations of property are proportionate,129 this suggestion is out of kilter with our law
because Courts recognise that a range of legislative options may be reasonable in the
circumstances and legislatures are not required to choose what a Court or a third party,
views as the best option and it is only one consideration in an enquiry. Indeed the
Constitutional Court has stated that when considering this issue a Court ‘should take care
to avoid a result that annihilates the range of choices available to the Legislature. In
particular, it should take care not to dictate to the legislature unless it is satisfied that the
mechanism chosen by the Legislature is incompatible with the Constitution.’ 130
Whatever other means might be available to the legislature, this is not a case where the
legislature has sought to ‘use a sledgehammer to crack a nut’.131 Rather the Bill in our
view reflects a careful balancing of rights.
128 In both the Canadian and UK jurisdictions, although the words “fair dealing” are used, the effect given to the
provisions is similar to that of “fair use” . In
CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1
S.C.R. 339, 2004 SCC 13 at para 60, the Supreme Court of Canada found that six non-exhaustive factors were
determinative of the fairness of an intended use: purpose, character, amount, alternatives, nature, and effect. This
decision was upheld, subsequently in
Society of Composers, Authors and Music Publishers of Canada v. Bell
Canada, [2012] 2 S.C.R. 326, 2012 SCC 36. See too
Alberta (Education) v. Canadian Copyright Licensing
Agency (Access Copyright), [2012] 2 S.C.R. 345, 2012 SCC 37. See also, Section 30 1ZA of the UK’s Copyright,
Designs and Patents Act 1988.
129
Reflect-All 1025 CC and others v MEC for Public Transport, Roads and Works, Gauteng Provincial
Government and another 2009(6) SA 391 (CC) at para 49 but cf
National Credit Regulator v Opperman 2013(2)
SA 1 (CC) at para 71.
130 See
S v Manamela and another (DG of Justice Intervening) 2000(3) SA 1 (CC) at paras 94 and 95 per
O’Regan J and Cameron AJ endorsed by the majority at paras 33 and 34.
131 Id at para 34
58
113. We have noted that when considering the issue of rationality, an argument has been
advanced that there has not been any assessment of the economic impact of the new
exceptions, and that the need for the measures has not been ascertained. On the
information that has been made available to us, we are of the view that this objection is
neither adequate explained nor, on the face of it, factually grounded.
114.1 First, it neglects to mention the extensive policy making process that preceded
the tabling of the Bill including on these issues.132
114.2 Second, it neglects to mention the extensive public participation engagements
on these issues both prior to and following the tabling of the Bill.
114.3 Third, it neglects to mention two impact assessment procedures that, to our
knowledge, were conducted.
114. The first impact assessment took place in 2014. As mentioned above, after the draft IP
policy was published for public comment in September 2013, a Regulatory Impact
Assessment was undertaken by the DTI in 2014 under the then extant procedures. This
assessment was conducted by an independent third party, Genesis Analytics, a economics
consultancy firm, who produced the report titled “Assessment of the Regulatory
132 We have already described the lengthy policy-development process. In addition to that, we are advised that the
DTI commissioned a report by WIPO in 2011, which recommends fair use. See WIPO, “The Economic
Contribution
of
Copyright-Based
Industries
in
South
Africa”,
available
at
https://www.thedti.gov.za/industrial development/docs/Economic Contribution.pdf. Moreover, together with 12
other countries, the Minister of Arts and Culture committed to fair and balanced copyright laws in the Cape Town
Declaration 2015. In this regard, see https://www.ifla.org/files/assets/wlic/2015/documents/cape-town-
declaration-of-ministers.pdf
59
Proposals on the Intellectual Property Policy Framework for South Africa”, dated 31 July
2014. The specific impacts were assessed at least at a high level.
115. The second impact assessment took place after the introduction in July 2015 of the Socio-
Economic Impact Assessment System. Further to this, a Socio-Economic Impact
Assessment Report was undertaken and certified by the Department of Monitoring and
Evaluation on 29 May 2017. The Phase 2 report was presented to the Portfolio Committee
on 30 May 2017.
Fair use and section 22 of the Constitution
116. Section 22 of the Constitution protects the right to freedom of trade, occupation or
profession. Section 22 encompasses two elements, namely the right of citizens to choose
a trade, occupation or profession, and that the practice of a trade, occupation or profession
may be regulated by law. For purposes of this opinion, we assume that all South Africans
currently engaged in the industries affected by the Bill are protected by the first element
of the right.133
117. The two elements are subject to different levels of judicial scrutiny.134 Where there is a
limitation on the
choice of trade, occupation or profession, it must be tested by way of
the test developed under section 36 of the Constitution. Where the regulation of the
133 Courts will protect the rights of citizens whether as individuals or through corporate structures. There are
multiple ways in which citizens are affected, from the act of creation, through intermediaries to public distribution.
We assume each will be regarded as a ‘trade, occupation or profession’.
134 See
South African Diamond Producers Organisation v Minister of Minerals and Energy N.O. and Others 2017
(6) SA 331 (CC) at para 65 and
Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) at para
93.
60
practice of a trade, occupation or profession is scrutinised, then the test is a rationality
test. The Constitutional Court has confirmed that the rationality test in context of section
22 is weaker than the test for arbitrariness in section 25 of the Constitution.135 In view
of our conclusions regarding section 25 of the Constitution, we do not reconsider the
arguments in context of the second element.136 Suffice to state that the test would in our
view be met.
118. A different argument is however raised in respect of the first element, being that the fair
use provision in section 12A has a negative impact on the
choice of trade, occupation or
profession. Although there are no formal impediments imposed by the Bill, the argument
is that there is an
effective impediment because any activity that relies on the commercial
exploitation of copyright will be made uncertain, and therefore illusory, and potentially
unprofitable.
119. Reliance is placed on
Diamond Producers,137 where the Constitutional Court held that
legislation limits the choice of trade, occupation or profession if it
“in effect, [makes] the
practice of that trade or profession so undesirable, difficult or unprofitable that the
choice to enter it is in fact limited.” The argument proceeds that there is no adequate
justification that meets section 36 limitations test. Moreover, it is argued that there is no
adequate reason for the limitation in view of the absence of research on the economic
impact of the provisions, (a matter we have already dealt with above.)
135
Minister of Justice and Constitutional Development and Another v South African Restructuring and Insolvency
Practitioners Association and Others 2018 (5) SA 349 (CC) at para 55.
136
Ibid at para 58.
137
South African Diamond Producers Organisation v Minister of Minerals and Energy N.O. and Others 2017
(6) SA 331 (CC) at para 68
61
120. A similar argument is raised in respect of section 12D of the Bill. The impact is said to
be particularly severe for authors of academic texts. It is argued that the business of
providing academic literature shall become highly unprofitable, and this is neither
rational nor justified under section 36 of the Constitution. A further objection is raised:
the provision provides a disincentive for authors to write, and for publishers to publish,
which means that it would have the opposite effect to the intended goal of improving
access to the works.
121. On the information to hand, we are unable to agree with the conclusion that the Bill
would have this effect, and thereby limit the section 22 right.
122. The first difficulty is that the arguments are based on the partial and wholly
unsubstantiated view of those opposed to the Bill – that these disastrous effects will
ensue. However, the Constitutional Court, in
Diamond Producers, set a high bar for
establishing the negative impact that the legislation must cause in order to be considered
an infringement of section 22. There is no evidence of any such an effect.
123. Even if those opposed to the Bill, and some in some industries, may be able to establish
that the profitability of their businesses will decrease, it is a different matter altogether to
establish support for the further claim that the effect will be of such a degree so as to
make their businesses so undesirable, difficult or unprofitable that the choice to enter that
line of business will effectively be taken away.
124. Such a claim would moreover be difficult to establish in light of the fact that the
opportunities provided by the Bill will likely generate new trade, occupational and
62
professional opportunities. The fair use provisions are designed to promote creative
efforts, and there is no reason why they should not do so. There is also some scope for
new industry, for example, for dealings in orphan works, and non-profit ventures
specifically to facilitate production of accessible format materials for people with
disabilities.
125. The claims about academic authors do not bear scrutiny, either as a matter of logic or
fact. They appear to be based on an assumption that works currently paid for, to the
benefit of academic authors, will be copied wholesale without compensation, and to
authors’ financial detriment.
126. First, there is no entitlement to copy books wholesale under the Bill. Furthermore, we
are instructed that academic authors do not currently benefit financially, either from
copying materials, or substantially from writing. Academic authors are, we are informed,
in general employed by an educational institution or research institute, and write in the
course and scope of their employment. For many, it is a requirement of tenure to publish.
The motivations for academic authors to publish are predominantly reputational rather
than directly financial. There are also benefits that result from the Bill to academic
authors in that the more access they have to other works, the more work is ultimately
generated and cited. Restricting access thus has a limiting effect of creativity and
productivity.
127. Second, there is a clear intention in the Bill to secure more financial benefits for the
originators of works covered by copyright, in other words, to give them a greater slice of
the pie. This intention is achieved by the same provisions that are said to make the
63
copyright-based businesses unprofitable, presumably for those who currently receive the
greater slice of the pie. Ready examples are the right to a fair royalty and the artists’
resale rights.
128. The net effect of the bill as a whole would, in part, be a shifting of some profits from the
intermediate levels of the production chain to the originators of the works at the primary
level. The Bill thus entails a conscious attempt to realign the sharing of profits to prevent
exploitative practices. While this will entail a sharing of profits, the clear intention is that
the sharing be ‘
fair’. There is no reason why it should not be.
129. In any event, we are of the view that if there is a limitation of right to choose a trade,
occupation or profession, it will be regarded by a court to be reasonable and justifiable,
satisfying the test contained in section 36(1) of the Constitution.138 Only a cursory
account has been taken of the limitations analysis under section 36 of the Constitution
by those objecting to the Bill. In light of the considerations we refer to when dealing with
section 25, we are of the view that the fair use provisions are probably readily justified
under this test.
130. It is important, moreover, to keep in mind that when conducting the limitations analysis,
courts will have regard to and balance competing rights. We have explained above what
rights are advanced by the provisions of the Bill. The limitations analysis, therefore, is
138 Section 36 provides that the rights in the Bill of Rights ‘may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the
right, (b) the importance of the purpose of the limitation, (c) the nature and extent of the limitation, (d) the relation
between the limitation and its purpose and (e) less restrictive means to achieve the purpose.
64
one that seeks to find an appropriate balance between rights that may conflict with the
Bill.
131. A proper balancing of rights does not seek to achieve a “winner-take-all” result, but rather
one that recognises each right, and places no more limits than are reasonable with regard
to the factors enumerated in section 36.139 This has been the consistent approach of the
Constitutional Court, which has emphasised that it
“must engage in a balancing exercise
and arrive at a global judgment on proportionality and not adhere mechanically to a
sequential check-list”140 The approach of the Court
“is to balance out and reconcile the
opposed claims in as just a manner as possible taking account of all the interests involved
and the specific factors relevant in each particular case.”141
The rule of law, retrospectivity and impermissible delegation
132. The final issue we consider is whether there are rule of law or separation of powers
concerns with the provisions of the Bill regulating new royalty rights. We consider two
related concerns.
133. The first is a concern about retrospectivity. The effect of sections 6A, 7A and 8A of the
Bill is that authors of literary, musical or visual works shall have an inalienable right to
a fair royalty on the exploitation of their work. In our view it is not correct to describe
the provisions as operating retrospectively.
139
Khumalo and Others v Holomisa 2002 (5) SA 401 at para 43.
140
S v Manamela and Another (Director-General of Justice intervening) [2000] ZACC 5; 2000 (3) SA 1 (CC);
2000 (5) BCLR 491 (CC) at para 32.
S v Makwanyane and another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995
(6) BCLR 665 (CC) at para 104
141
Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at para 23
65
134. Rather, they operate prospectively in respect of two categories of works: those in respect
of which the right to royalties has already been assigned; and those in respect of which
the right to royalties has yet to be assigned. Insofar as this second category of works is
concerned, there can be no question whatsoever of retrospectivity.
135. Insofar as the first category of works is concerned, we accept that the provisions have an
impact on past transactions in that they impose new terms and obligations on the parties
to any contract dealing with the assignment of royalties. In and of itself, this cannot raise
any rule of law concerns. It is comparable to the introduction of a national minimum
wage in certain sectors, which has a direct impact on the contractual relationships
between employers and employees in such sectors.
136. While we accept that the provisions may limit vested rights, we are of the view that were
there to be any limitation of a constitutionally-entrenched right, such as the right to
dignity,142 any such limitation could be justified in accordance with the provisions of
section 36(1) of the Constitution. Were a court to find that such vested rights constitute
property as contemplated by section 25 of the Constitution, we submit that any proven
deprivation would be non-arbitrary, and accordingly, constitutionally valid.
137. The second concern is whether Parliament has impermissibly delegated plenary
legislative power to the Minister, and breached the rule of law by creating an uncertain
142 Cf
Barkhuizen v Napier 2007 (5) SA 323 (CC) at para 57
66
regime. In our view, there is no impermissible delegation of power, and no uncertainty
that breaches the rule of law.
138. The concern has been expressed in respect of sections 6A(7)(b), 7A(7)(b), and 8A(5)(b),
each of which empowers the Minister to make draft regulations dealing with procedural
aspects. At issue in each of the three sections is the right of the author of a copyrighted
work to share in royalties in respect of literacy or musical works, visual artistic works,
and audiovisual works.
139. The right to share in royalties, in defined circumstances, is expressly guaranteed in the
Bill; the Minister plays no role in determining who should succeed in obtaining their
share. Instead, the Minister’s role is limited to four things: first, developing draft
regulations setting out the process to give effect to the application of each section to
eligible works; second, conducting an impact assessment of the proposed process; and
third, tabling the draft regulations and impact assessment in the National Assembly; and
fourth, making the regulations should the National Assembly provide its approval.
140. The delegation of power to make regulations about the process to give effect to each
section is properly regarded as conferring the power to make subordinate legislation
within the framework of the empowering legislation and to give effect to it. This does
not amount to a delegation of plenary legislative power.143
143 See in this regard
Executive Council of the Western Cape Legislature and Others v President of the Republic of South
Africa and Others 1995 (4) SA 877 esp at paragraph 51.
67
141. While an added benefit, the tabling of draft regulations and the impact assessment is not
necessary. The Bill could simply have made ordinary provision for the Minister to make
regulations setting out the procedures in terms of which eligible authors may seek to
obtain their share of the royalties.
142. The need for the provisions dealing with royalties is well illustrated by the sad tale of
Solomon Linda, who wrote the song “Mbube” in the 1920s, which was adapted by an
American artist into “The Lion Sleeps” in the early 1950s, and proceeded to earn many
millions of dollars over decades for various artists who recorded the song, and their
recording companies. All profited, except for Solomon Linda.
143. The Bill would enable the originator of a work, such as Solomon Linda, to earn a fair
share from exploitation of the work, from the date of commencement of the Act. They
would not be able to claw back profits that have already been earned at the time of the
commencement of the Act, so as retrospectively to defeat commercial gains already
realize; only prospective uses of the works will attract a fair benefit for their originator.
144. The entitlement to a royalty, as introduced by sections 6A, 7A and 8A, is not open-ended;
it is an entitlement to a “fair share of the royalty” – a reasonable royalty. Because the
facts of each case will have to be adjudicated on its own merits, the Bill cannot be
expected to provide any detail in this regard.
145. Instead, it effectively makes provision for parties to renegotiate the terms of unfair
contracts, and where agreement can't be reached, to approach the Copyright Tribunal – a
designated judge of the Gauteng Division of the High Court – for an appropriate order.
Where existing contracts are fair, they will presumably be untouched.
68
CONCLUSION
146. In light of the above, we are of the view that the objections considered do not constitute
any impediment to the President signing and assenting to the Bill. Subject to any other
valid constitutional reservation, the President is, rather, under a constitutional duty to
sign and assent to the Bill within a reasonable time.
147. We advise accordingly.
Art. 4(1)(b)
Art. 4(1)(b)
Art. 4(1)(b)
Chambers, Sandton
13 October 2019
69