The Copyright Amendment Bill has been returned to the national assembly (NA) for consideration of president Ramaphosa’s reservations about its constitutionality.
The Copyright Amendment Bill was passed by parliament and sent to president Ramaphosa for assent in March 2019.
The bill was tabled in parliament in May 2017.
It aims to amend the Copyright Act of 1978 so as to:
• define certain words and expressions;
• allow for further limitations and exceptions regarding the reproduction of copyright works;
• provide for the sharing of royalties in copyright works;
• provide for the payment of royalties in respect of literary, musical, artistic and audiovisual works;
• provide for resale royalty rights;
• provide for recordal and reporting of certain acts;
• provide for the accreditation of collecting societies;
• provide for a mechanism for settlement of disputes;
• provide for access to copyright works by persons with disabilities;
• provide for the licensing of orphan works;
• strengthen the powers and functions of the Copyright Tribunal;
• provide for prohibited conduct in respect of technological protection measures;
• provide for prohibited conduct in respect of copyright management information;
• provide for protection of digital rights;
• provide for certain new offences; and
• provide for matters connected therewith.
President Ramaphosa has also referred the Performers’ Protection Amendment Bill to the NA for consideration of its constitutionality.
The bill was passed by parliament and sent for assent in March 2019.
The bill was tabled in parliament in December 2016.
It aims to amend the Performers’ Protection Act of 1967 in order to:
• insert, delete or substitute certain definitions;
• provide for performers’ economic rights;
• extend moral rights to performers in audiovisual fixations;
• provide for the transfer of rights where a performer consents to fixation of a performance;
• provide for the protection of rights of producers of sound recordings;
• broaden the restrictions on the use of performances;
• extend the application of restrictions on the use of performances to audiovisual fixations;
• provide for royalties or equitable remuneration to be payable when a performance is sold or rented out;
• provide for recordal and reporting of certain acts and to provide for an offence in relation thereto;
• extend exceptions from prohibitions to audiovisual fixation and sound recordings and include exceptions provided for in the Copyright Act, 1978;
• provide for the Minister to prescribe compulsory and standard contractual terms as well as guidelines for a performer to grant consent under this Act;
• provide for prohibited conduct and exceptions in respect of technological protection measures and copyright management information respectively;
• provide for further offences and penalties;
• substitute certain expressions;
• provide for transitional provisions; and
• provide for matters connected therewith.
In a statement, the presidency indicates that the president is concerned that the “legislation is open to constitutional challenge”.
According to the presidency, a number of submissions opposing the signing into law of the two bills have been received.
The president holds the view that both bills have been incorrectly tagged Section 75 Bills and should have been tagged section 76 bills “given that they affect cultural matters and trade – namely trade in copyright – in which provinces exercise competence”.
“In terms of Schedule 4 of the Constitution, cultural matters and traditional leadership are among matters listed as affecting provinces and which have to be dealt with in Section 76 Bills.”
The president is also concerned that several sections of the Copyright Amendment Bill may “constitute retrospective and arbitrary deprivations of property in that copyright owners will be entitled to a lesser share of the fruits of their property than was previously the case”.
Certain provisions of the Copyright Amendment Bill may also be in conflict with the World Intellectual Property Organisation (WIPO) Treaty and the WIPO Performance and Phonograms Treaty, both of which South Africa subscribes to.
Meanwhile, in another statement on the commencement of certain sections of the Protection of Personal Information Act of 2013, the presidency highlighted that the sections to commence on 1 July 2020 are “essential parts of the Act and comprise sections which pertain to, amongst others, the conditions for the lawful processing of personal information; the regulation of the processing of special personal information; Codes of Conduct issued by the Information Regulator; procedures for dealing with complaints; provisions regulating direct marketing by means of unsolicited electronic communication, and general enforcement of the Act”.
Section 114(1) stipulates that all forms of processing of personal information must, within one year after the commencement of the section (1 July 2021), comply with the act.
The delay in the commencement of sections 110 and 114(4) – which are to commence on 30 June 2021 – is that the sections pertain to the amendment of laws and the effective transfer of functions of the Promotion of Access to Information Act of 2000 (PAIA) from the South African Human Rights Commission to the Information Regulator.
“In this regard, the Commission must finalise or conclude its functions referred to in sections 83 and 84 of PAIA and all mechanisms must be in place for the Regulator to take over these functions.”