Parliament about to snooker itself on Copyright Amendment Bill

27 March 2019

The National Council of Provinces (NCOP) will tomorrow vote on the Copyright Amendment Bill. In the same sitting, the NCOP will also vote on the World Intellectual Property Organisation Copyright Treaty.

The NCOP is expected to vote in support of both the Treaty and the Bill. However, the problem for the NCOP is that the Bill and the Treaty stand fundamentally at odds with each other.

The Treaty, which South Africa has signed, and which the NCOP plans to ratify on Thursday, emphasizes the “significance of copyright protection as an incentive for literary and artistic creation.” Specifically, it aims to extend coverage of copyright and the protection of intellectual property to the internet and digital environment.

The Copyright Amendment Bill, on the other hand, erodes local intellectual property rights, allowing international companies to republish the creative work of local authors and artists without needing to compensate them fair royalties or usage fees to enable them to earn a living.

It is deeply ironic that the same parliamentary chamber, in the same sitting, is about to vote for extending the global protection of intellectual property, while at the same time voting to expropriate the intellectual property of local authors.

The NCOP has a choice to make tomorrow. It can either vote in support of the Treaty or it can vote in favour of the Bill. It cannot be in favour of both.

The law is quite clear that international treaties, once signed, must guide our lawmakers when deliberating and voting on legislation. According to section 231 of the Constitution, once an international agreement has been approved by resolution in the National Assembly and the National Council of Provinces, it is binding on the Republic.

In other words, by signing the treaty, and ratifying it in Parliament, the NCOP will tomorrow snooker itself on the Copyright Amendment Bill. And this is a good thing. It highlights just how regressive and out of step this Bill is with international best practice.

Tomorrow is a unique opportunity for Parliament to do what it should have done a long time ago: to withdraw the Copyright Amendment Bill pending a proper socio-economic impact assessment and constitutional analysis of it.

We should be doing everything in our power to put South Africa first and promote local black authors and artists that can tell our stories in a way nobody else can. And we should have a laser-like focus on increasing the production of South African and African knowledge. Sadly, this Bill will ensure that our creative and research sectors remain colonised for decades to come.

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 aspiring local artists and writers (many of whom are black), stopping the decolonisation project in its tracks.

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. Imported foreign material will fill the gap, leaving our students to learn generic ideas that are not applicable to the African and South African context.

The Bill will also lead to widespread job losses, and it is previously disadvantaged South Africans who will bear the brunt of this. A socio-economic impact assessment by the Publishers Association of South Africa found that 1 250 publishing jobs – 30% of jobs in the industry – will be lost if the Bill is signed into law.

There is, however, a glimmer of hope. The NCOP can still choose to withdraw the Bill on the grounds that it contradicts the international treaty to be ratified on the same day. We have therefore written to the Chairperson of the National Council of Provinces, the Honourable Ms Thandi Modise, calling on her to withdraw the Bill from tomorrow’s order paper.

We hope Parliament will see this as an opportunity to rethink the Copyright Amendment Bill before it is signed into law. We owe this to the thousands of local creatives and creators of works who stand to be disadvantaged by this regressive piece of legislation.

Issued by Collen Dlamini, Spokesperson, Coalition for Effective Copyright in SA, 27 March 2019