THE COPYRIGHT AMENDMENT BILL: victim of parliamentary dysfunction and ...?

In anticipation of this week's Constitutional Court hearings on the contentious, beleagured Copyright Amendment Bill, we offer insights into its status as quite possibly the most tragic example of mismanagement in the history of South Africa's democratic Parliament.

Ours is not to comment on the merits or otherwise of the Bill's contents or the policy underpinning them. For more than a decade, stakeholders from across the spectrum of copyright legislation reform in this country (proponents and critics) have bombarded the general public with media articles and academic papers either extolling the Bill's perceived virtues or drawing attention to concerns about its possible pitfalls. Suffice to say that the version of the Copyright Amendment Bill now before the Consitutional Court is one of the most highly contested pieces of proposed new legislation ever to have been passed by Parliament post-1994.

But it didn't have to be that way.

On 18 August 2017, following several days' parliamentary hearings on the Bill's tabled version, the National Assembly's Trade & Industry Committee met to receive an informed response to the oral and written input received. To that end, members were briefed by Parliament's Legal & Constitutional Services Office and Department of Trade & Industry.

Given concerns about the poor technical quality of the Bill so volubly expressed during the hearings, it was eventually agreed that the committee itself would oversee a redrafting process without interfering with policy intentions underpinning the Bill's contents. This decision was taken despite a suggestion from the department's former Director-General Lionel October, which was that clauses introducing the 'fair use' policy approach to copyright could be removed from the Bill and dealt with in separate legislation after further consultation.

The introduction of 'fair use' as South Africa's copyright policy is probably the Bill's most contentious proposal and has been the focus of the myriad media articles and academic papers to which we've already referred (and on which we're not qualified to comment).

October's suggestion was made in the context of strong reservations about 'fair use' expressed by certain key stakeholders. In his view, focusing on recommendations in the 2011 Farlam Copyright Review Commission report would result in a smoother, speedier redrafting process. In turn, this would enable Parliament to pass the Bill before rising for the 2018 elections, thus paving the way for essential reforms identified by the commission. October referred expressly to the importance of more effectively regulating collecting societies; contractual arrangements to protect vulnerable creatives from abuse; digitisation; and alignment with international treaties (some of which South Africa has yet to ratify).

October also noted the importance of retaining clauses in the Bill intended to facilitate academic research, along with those on which there was already significant consensus. In that context, he referred to access by the visually impaired and people living with other disabilities to copyright protected printed material for conversion into alternative formats.

African National Congress (ANC) MP Adrian Williams and Democratic Alliance (DA) MP Dean Macpherson vehemently opposed October's suggestion – and the ensuing debacle is now history. Since that meeting, the Bill has been redrafted by the committee, passed by Parliament, sent back by President Cyril Ramaphosa (because of constitutional concerns), revised, passed again, and referred (by the President) to the Constitutional Court.

We now turn to the process of drafting the Bill before it was tabled in Parliament.

The 1978 Copyright Act (last amended in 2011, according to the Southern African Legal Information Institute) includes a section requiring the Minister concerned to establish a Standing Advisory Committee on Intellectual Property Rights. However, although the Department of Trade, Industry & Competition website includes a page dedicated to the committee, the names of its members are not featured. Neither is it clear when the committee last met. Apparently, it was once chaired by retired judge Ian Farlam – who also chaired the 2011 Copyright Review Commission, as we have already noted. And as Director-General Lionel October pointed out, recommendations in the review commission's report informed many clauses in the Copyrght Amendment Bill.

Thanks to Parliamentary Monitoring Group (PMG) records of written questions prepared by MPs and ministerial repiles, we know that the term of office of the last Standing Advisory Committee on Intellectual Property Rights expired in September 2019. And although the ensuing recruitment process identified potential members of a new standing committee, their appointment was never authorised by Trade, Industry & Competition Minister at the time, Ebrahim Patel.

This is according to current Trade, Industry & Competition Minister Parks Tau's response to questions posed by Democratic Alliance (DA) MP Toby Chance (one of two DA representatives in the National Assembly's Trade, Industry & Competition Committee).

Apparently, the process of authorising the appointments concerned could have been finalised well before the term of South Africa's sixth democratic government ended in May 2024. Potential new standing committee appointees had long been vetted and assessed – in 2020, when the final list was submitted to then Minister Patel.

We shall probably never know what went wrong and what caused the delay. But as a result, there has been no Standing Advisory Committe on Intellectual Property Rights since September 2019.

It's not clear if the standing committee in place until then was ever consulted during the process of developing the Copyright Amendment Bill, which began in July 2015 with the release of a draft for public comments. However, we do know that the committee has served successive Trade & Industry ministers since 2000, when Trevor Manuel held the position.

We also know that the nineteen-year-old committee's term expired six months after Parliament passed the Bill's 'D' version – and nine months before President Cyril Ramaphosa returned it to the National Assembly, with reservations about the constitutionality of certain clauses.

And (as we've already noted) the President's still not convinced that his concerns have been adequately addressed in the Bill's 'F' Version, which Parliament passed in February 2024 and which the President has since referred to the Constitutional Court.

Hopefully, a feisty investigative journalist will summons the courage to pester former Trade & Industry Minister Rob Davies for insights into the role of the standing committee in place when the Copyright Amendment Bill was drafted, released for public comments, tweaked and tabled in Parliament. Because Davies was Minister between May 2009 and 2019. A decade during which, among many other things, the 2011 Farlam Copyright Review Commission was appointed,

Although since former Minister Patel had been in office only four months when the committee's term expired so suddenly after nineteen years' service, he's likely to be key to unravelling what really happened.

Former Director-General Lionel October might also have some interesting information to share, having held that position between May 2011 and April 2021 under former Ministers Davies and Patel.