By Lehlohonolo Lehana.
The Constitutional Court affirmed the constitutionality of the majority of provisions in the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB), ruling that the laws do not constitute an arbitrary deprivation of property.
In a majority judgment penned by Justice Nonkosi Mhlantla, the court found the controversial fair use exception Constitutional, clearing the way for the Bills to be signed into law.
On 10 October 2024, the President of South Africa, Cyril Ramaphosa launched an ex parte application referring the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB) to the Constitutional Court for a decision on their constitutionality in terms of sections 79(4)(b) and 84(2)(c) of the Constitution.
This followed an earlier process in June 2020, where the President referred the Bills back to Parliament due to procedural and substantive reservations.
The President’s initial concerns included that certain provisions amounted to retrospective and arbitrary deprivation of property, and conflicted with international treaties such as the Berne Convention and TRIPS Agreement.
While Parliament attempted to accommodate the reservations by amending or deleting some sections, the President maintained that the revisions did not cure the substantive constitutional defects.
Consequently, he requested the Court to exercise abstract judicial review over sections 6A, 7A, 8A, 12A-D, 19B, and 19C of the CAB, alongside corresponding provisions of the PPAB, arguing they unlawfully limit property rights under section 25(1) of the Constitution.
The Constitutional Court found that the majority of provisions are constitutional and do not amount to an arbitrary deprivation of property.
These include the provisions on fair use of copyrighted works and other exceptions for libraries, research and personal copies.
On Fair Remuneration of creators, it dismissed the President’s referral on procedural grounds.
One specific set of exceptions for education were found to be unconstitutional however, leaving the future of the Bill unclear.
Justice Majiedt J penned a dissenting judgment solely regarding subsections 12D(1)-(5). He argued that these educational exceptions are constitutional and do not amount to arbitrary deprivation.
Majiedt asserted that the majority placed an impermissibly narrow focus on property law, neglecting the fundamental constitutional right to education and the state’s obligations under international human rights law.
He reasoned that the provisions contain sufficient internal constraints (such as the requirement that a license be unavailable on reasonable terms) to balance the rights of authors against the dire need to remove barriers to educational materials for disadvantaged learners.
Legal experts and art commentators have been scathing in their criticism of the copyright Bill.
They warned that the exemption introduced by way of the concept of fair use erodes the rights of copyright holders and risks putting South Africa in breach of international treaties.