Ramaphosa refers contentious bills back to parliament for reconsideration

President Cyril Ramaphosa has declined signing into law two bills that seek to regulate the entertainment industry and provide for the protection of performers and the copyrights of writers and publishers, expressing reservations about their constitutionality.

Ramaphosa referred the controversial Copyright Amendment Bill and Performers' Protection Amendment Bill back to parliament for reconsideration, citing procedural flaws such as incorrect tagging, arbitrary deprivation of property, lack of consultation on the introduction of the “fair use” and non-compliance with international treaty obligations.

The bills have been sitting in the president's in-tray since March last year, but there has been much lobbying by both those who wanted him to sign them into law and from those against the proposed amendments.

It is the copyright law that is highly contentious but it would be impossible to sign the Performers' Protection Bill without agreeing to the Copyright Amendment Bill as some clauses in the performers' proposed law refer to the copyright bill.

“My office received submissions against the signing of the two bills into law as well as submissions in favour of my assenting to the two bills,” said Ramaphosa in a letter to National Assembly speaker Thandi Modise, dated June 16.

“In considering the numerous and varied submissions made and the process followed in parliament to pass the bills, I have a number of reservations as to the constitutionality of the bills.

“These reservations lead me to conclude that in its present form, the bill may not pass constitutional muster and may therefore be vulnerable to constitutional challenge,” he said.

Ramaphosa raised an issue with “incorrect tagging” of the two bills as the basis for his referral of the bills back to the National Assembly.

The bills were tagged as section 75 bills (not affecting the provinces) when they are actually section 76 bills by reason of their provisions which substantially affect two areas listed in schedule 4 of the constitution, namely cultural matters and trade.

In terms of section 76 (3) of the constitution, a bill must be dealt with in accordance with section 76 if it falls within a functional area listed in schedule 4 of the constitution.

Ramaphosa said the Copyright Amendment Bill obviously affects trade as sections of the bill provide for how copyright may be traded. It further affects cultural matters since indigenous works will become eligible for payment of royalties under the bill.

Indigenous work is defined in the bill as literary, artistic or musical work with an indigenous or traditional origin, said Ramaphosa.

The president also directed parliament to the fact that the Performers' Protection Amendment Bill affects performances and performers of traditional works including cultural expressions or knowledge, and the rights of these performances.

“It further regulates the manner in which related performances are made and shared.”

The bills therefore ought to have been enacted in terms of the section 76 process.

Ramaphosa also expressed reservations that certain sections of the Copyright Bill may constitute retrospective and arbitrary deprivations of property.

“These provisions mean that going forward, copyright owners will be entitled to a lesser share of the fruits of their property than was previously the case.

“The impact of these provisions reaches far beyond the authors it seeks to protect — those that live in poverty as a result of not having been fairly protected in the past.”

Ramaphosa contends that the retrospective provisions deprive copyright owners of property without sufficient reason and will therefore result in substantial and arbitrary deprivation of property.

“In addition, the uncertainty created by its unlimited retrospective operation, how assignment by multiple authors would work or what would happen if the owner of the copyright is a non-profit organisation aggravates the situation.

“The sections which raise this concern are likely not to survive constitutional challenge,” he said.

Ramaphosa also noted that amendments to sections of the bill that deal with the “fair use” of a work or performance of a work were not put out for public comment before the final version of the bill was published.

He said the changes made to the particular section of the bill were material to the scheme as a whole and the failure to consult, in the face of such materiality of the amendments, could render the provisions constitutionally invalid.

The president also raised issues with impermissible delegation of legislative power to the minister, copyright exceptions and whether the bill was aligned with international treaties which are in the process of being acceded to by SA.

Collen Dlamini, chairperson of the Copyright Coalition of SA, welcomed Ramaphosa's decision to send the Copyright Amendment Bill back to the National Assembly for reconsideration.

“We have maintained all along that the bill was unconstitutional because, if passed into law, it would have arbitrarily deprived SA artists and creatives of their intellectual property.

“By sending the bill back to parliament, President Ramaphosa has shown that he cares about the future of our creative sector,” said Dlamini.

He said the decision reflected well on Ramaphosa’s commitment to constitutional governance and the rule of law.

“Given the legal deficiencies in the development and drafting of the legislation, sending the bill back to parliament is the best course of action for the country.”

Dlamini said the reasoning outlined by Ramaphosa in his letter to parliament vindicated their position.

“Not only is this decision constitutionally commendable, it will protect the livelihoods of SA’s creatives, content producers and the hundreds of thousands of supporting workers employed in the creative and cultural sectors,” he said.

“We look forward to engaging in the parliamentary process to ensure that the bill that emerges protects and promotes the rights of all creatives and artists,” said Dlamini.

BlindSA dragged Ramaphosa to the Constitutional Court earlier this month, saying his tardiness in signing the Copyright Amendment Bill was denying millions of blind and partially sighted South Africans access to logical extension of Braille texts and other material meant for print disabled people.