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“The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life, the sick, the needy and the handicapped” (former US vice president, Hubert Humphrey) – begging the question, “How has South Africa's government been doing recently?”
Not well, if missing a Constitutional Court deadline for remedying defects in the Copyright Act, 1978, is any indication.
We wrote the report below for the SA Legal Academy website, where it was published the day the deadline expired – but there’s more, which you’ll find at the end of the report under questions and answers.
On 21 September 2022, the Constitutional Court handed down its judgment on a longstanding matter between Blind SA and the Minister of Trade, Industry & Competition et al. It focused on the constitutionality of sections 6 and 7 of the Copyright Act, 1978 (last updated in 2022) (SAFLII). Read with section 23 (infringement), sections 6 and 7 deal with the nature of copyright in literary, musical and artistic works – and were found to undermine the rights of people with visual and print disabilities by obstructing their access to published literary and artistic works for conversion into alternative format copies. The judgment allowed Parliament 24 months to remedy the defective sections. Meanwhile, a read-in interim remedy took immediate effect – legitimately facilitating and possibly even shortening the often-lengthy access and conversion process.
There are differing views on the precise date and hour at which those 24 months were expected to end. Some commentators believe the deadline expired at midnight on 20 September 2024. Others refer to 21 September as the grace period’s last day. Whatever the case, at the time of writing the Constitutional Court’s interim read-in remedy had either already fallen away or was about to do so in a matter of hours.
As a result, the blind, visually impaired and otherwise print-disabled have lost a hard-won, constitutionally enshrined right to:
protection from discrimination
human dignity
receive or impart information or ideas
basic and further education, including adult education, and to
use the language and participate in the culture of their choice.
Once again, it’s an offense for blind, visually impaired and otherwise print-disabled people living in South Africa to access published works for conversion into alternative format copies without permission from the copyright holder. Entities and caregivers enabling them to do so are similarly affected.
Not only has Parliament failed to amend the Copyright Act within the given timeframe so that it reflects the spirit and intent of the Constitutional Court’s interim read-in remedy.
President Cyril Ramaphosa has failed to communicate in any way whatsoever his reasons for overlooking his own implicit obligations under the Copyright Amendment Bill’s section 40 (commencement). This is noting that Parliament passed an ‘F’ version of the Bill on 29 February 2024 – at which point it was sent to the President for signature. The Bill has been on the President’s desk for seven months, during which there has been extensive media coverage of varying stakeholder positions on its more contentious provisions and their implications for copyright holders and the users of their work.
Perhaps the President hasn’t been adequately briefed by his legal advisers or kept informed of these developments. But regardless of the reason for his deafening silence, it undoubtedly flies in the face of paragraph 10 of the Government of National Unity’s (GNU’s) original GNU statement of intent (Polity), which commits participating political parties to ensuring accountability and fostering trust between the GNU and the South African electorate.
The Bill’s sub-clauses 40(2) and (3) seek to ensure that, as soon as it is signed into law, certain provisions will automatically amend the principal statute in keeping with the Constitutional Court ruling. This is because the Bill’s enactment and publication will immediately operationalise:
its definitions of the terms ‘accessible format copy’, ‘authorised entity’ and ‘person with a disability’, and
the general exceptions applicable to people living with disabilities (to a large extent freeing them from obligations perceived to obstruct their access to copyright protected works).
If Parliament has already applied to the Constitutional Court for an extension to the deadline, at the time of writing no media statement had been issued announcing that. The President was on his way to New York, where he will lead South Africa’s delegation to the UN’s week-long 79th session. Ironically, the session’s theme is ‘unity and diversity for advancing peace, sustainable development and human dignity, everywhere and for all’.
Footnote: political parties represented in Parliament’s National Assembly
*GNU member parties are the African National Congress (ANC), the Democratic Alliance (DA), the Patriotic Alliance (PA), the Inkatha Freedom Party (IFP), Good, the Pan Africanist Congress of Azania (PAC), the Freedom Front Plus (FF Plus), the United Democratic Movement (UDM), Al Jama-ah, Rise Mzansi and the United Africans Transformation (UAT).
*The EFF is one of several political parties represented in Parliament outside the GNU. The others are: uMkhonto weSizwe (MK), ActionSA, the African Christian Democratic Party (ACDP), Build One South Africa (BOSA), the African Transformation Movement (ATM) and the National Coloured Congress (NCC).
questions and answers
Q How can we prove Parliament knew about the Constitutional Court deadline?
A Pages 69 and 70 of papers tabled in the National Assembly on 4 April 2024 include sections of a Trade, Industry & Competition Committee report on its activities during the sixth Parliament. Captured in boxes, these sections refer to the Constitutional Court judgment and flag the importance of “tracking that the Copyright Amendment Bill is assented to by the President to ensure that the deadline set by the Constitutional Court is met”.
Q How can we prove that the seventh Parliament’s National Assembly Trade, Industry & Competition Committee is aware of that?
A The committee met on 20 August 2024 to consider the report, which had been circulated beforehand. Parliamentary Monitoring Group audio clips of the proceedings include references to the status of the Copyright Amendment Bill at the end of the sixth Parliament – but not one member asked for an update on any progress since made.
Q Has the Copyright Amendment Bill been discussed by any other committees?
A On 5 (38:32) and 19 (33:11) September 2024, during meetings of the National Assembly’s Programme Committee, the EFF’s Ntombovuyo Mente expressed concerns about the time being taken to sign the Copyright and Performers’ Protection Amendment Bills into law. In answering her questions, neither parliamentary counsellor to the President, Gerhardus Koornhof, nor parliamentary legal adviser, Charmaine van der Merwe, referred to the Constitutional Court deadline. Yet Van der Merwe played a key role in drafting the Copyright Amendment Bill during the fifth Parliament and in addressing the President’s reservations about its constitutionality when he returned it to the sixth Parliament’s National Assembly in 2020. So, why didn’t she speak up? Apparently unaware of the Constitutional Court deadline, Mente didn’t ask for any further information.
Q Is there any evidence suggesting that the President is aware of the deadline?
A On 17 September 2024, during an SABC interview (3:59) Blind SA’s Christo de Klerk revealed that two recent letters to the President were eventually acknowledged. He also said that, according to the President’s spokesperson, “the President is aware of the matter” and “the Bill is currently with their legal advisers, who are examining the Bill for constitutional compliance”.
most recent parliamentary and presidential media statements (21 September 2024)
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