Members of the Global Expert Network on Copyright User Rights to Testify in Support of South Africa's Copyright Amendment Bill

August 10, 2021

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Malebakeng Forere and Andrew Rens

This week, Members of the Global Expert Network on Copyright User Rights will testify to South Africa’s Parliament in support of the Copyright Amendment Bill [B13-2017]. The legislation will update the country's Copyright Act of 1978, including the law's provisions on limitations and exceptions.

In 2019, a version of the Copyright Amendment Bill was passed by both houses of Parliament and sent to the President for Assent. However, the President returned the bill to the National Assembly the following year, citing concerns over the Bill’s Constitutionality, and its compliance with the “three step test” in international copyright law. The National Assembly has continued to work on the legislation through various committees, and it has recommitted the Bill to the Portfolio Committee on Trade and Industry.

On August 11, Global Network Members Malebakeng Forere and Andrew Rens will present the Joint Academic Opinion on the President’s referral of the Copyright Amendment Bill back to Parliament. The Joint Academic Opinion addressed the President's reservations about the Bill’s constitutionality, and his concerns about the Bill’s domestic application of international law. It concluded that the Copyright Amendment Bill "could be interpreted and implemented in a constitutional manner, including with regulatory clarifications." It recommended that Parliament aid the process of constitutionally implementing the Bill through the following specific technical changes:

  • Revise Sections 7A and 8A to require only a “fair” royalty in each;
  • Require that quotations under Section 12B(1)(a) be “consistent with fair practice”, as in the current Act;
  • Remove the exception in Section 12B(1)(e)(i) for uses of works not subject to reservations of rights;
  • Revise the translation right in Section 12B(1)(f) to include the full range of purposes for which a lawful translation may be made;
  • Add a clarification to Section 19D that it authorizes cross-border trade by “authorized entities” as defined by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

PIJIP Director Sean Flynn will join the team in his capacity as the convenor of the Global Expert Network, which submitted a comment that focused on the Bill's fair use provision in Clause 13, Section 12A. It applauds the Bill’s “Hybrid approach” to exceptions - combining a closed list of permitted uses and an open fair use exception - and defends the approach as compliant with international law:

In our view, the proposed fair use provision combined with the specific list of exceptions provides South Africa the “best of both worlds” combining openness and predictability. The open fair use exception makes the exceptions future-proof. It permits the law to adapt to new uses, technologies, and purposes which may not be anticipated in the specific exceptions. The list of specific exceptions in Section 12B provides a higher degree of predictability for the set of uses long authorized in South Africa copyright law.

...This hybrid approach to exceptions is fully compliant with international law. The so-called “three step” test does not prohibit open general exceptions that operate through case by case application of a specifically delineated balancing test. At least 11 countries have similar provisions in their law and none have been challenged.

About the Global Expert Network on Copyright User Rights

American University's Program on Information Justice and Intellectual Property chairs the Global Expert Network on Copyright User Rights, which was formed in 2011 by a group of leading copyright academics from around the world.  The Network's objective was originally framed in the Washington Declaration on Intellectual Property and the Public Interest, which called for “discussion of employing ‘open-ended’ limitations in national copyright legislation, in addition to specific exceptions.”

The work of the Network focuses on the publication of research and provision of technical assistance to explain how adopting more open, flexible and general user rights – both by adopting fair use-like open, flexible, general provisions, and by increasing the openness and flexibility of specific (non-general) exceptions – can promote social and economic interests.