The National Council of Provinces should hang its head in shame after voting in support of the Copyright Amendment Bill. It took this devastating decision despite overwhelming opposition to and patent rejection of the Bill by South African creators and creatives from numerous affected industries – the very people that the Bill is ostensibly meant to protect.
At its core, this Copyright Amendment Bill is unjust and unconstitutional.
Free re-use and job losses
The Bill is unjust because, by permitting free re-use, the Bill will mean that content creators will be unable to derive financial benefit from their work.
This will disproportionately affect the many aspiring black local artists and writers who – instead of being unfairly inhibited in what they could create – need all the help they can get. Because, when the publication of writing and research no longer pays, South African authors will stop writing and publishers will stop publishing. This will mean less South African content will be available, and imported foreign material will fill the gap.
The Bill is unjust because it will lead to widespread job losses, and it is previously disadvantaged South Africans who will bear the brunt of this. In the absence of a publicly available socio-economic impact assessment done by the Department of Trade and Industry (DTI), the Publishers Association of South Africa through PwC conducted one. It found that 1,250 publishing jobs – 30% of jobs in the industry – will be lost if the Bill is signed into law.
The Bill is unconstitutional for various reasons, including that it amounts to the expropriation of intellectual property without compensation. This is a flagrant breach of Section 25 of the Constitution which guarantees property rights for every South African.
The Bill also contradicts South Africa’s international obligations under the Copyright Treaty of the World Intellectual Property Organisation, which the NCOP adopted in the same sitting earlier today. That Treaty emphasises “the significance of copyright protection as an incentive for literary and artistic creation”, while the Bill permits conduct in diametric opposition to this necessary protection.
It is important to note that the process to amend Section 25 has been deferred to the Sixth Parliament. It is therefore legally and constitutionally flawed to pass this legislation before that process is complete.
Doing so amounts to the unconstitutional expropriation of knowledge without compensation.