South African Litigation Raises The Question: Copyright in Whose Interest?
The upcoming Constitutional court hearing in South Africa on the Copyright Amendment Bill has ignited a debate about whose interests can and should be served by copyright legislation. The case to be heard in the apex court on 21 - 22 May 2025 will be the culmination of a decade-long debate over the reforms.
In Ramaphosa’s Heritage Day Address on 26 September 2022, he said that in today's world, exploitation of artists has taken new forms, such as plagiarism, intellectual property theft, and copyright violations. Struggling artists are often forced to give up their rights and royalties. To combat this, efforts are being made to protect both cultural heritage and artists' rights. Artists play a crucial role in passing down heritage through various art forms, and they deserve to be compensated for their work. In honour of Solomon Linda, it's important to ensure that artists are not left in poverty. He stated that,
“the new Copyright Amendment Bill passed by the National Assembly at the beginning of this Heritage Month will go a long way in protecting our artists and towards addressing their concerns about the collection and distribution of royalties.”
Yet, tThe President has repeatedly put a spanner in the works, arguing that anything which impacts the property rights of existing rights-holders is likely to lead to an unconstitutional and arbitrary expropriation of property. According to his heads of argument filed to the court in March 2025, this will be his main argument in the upcoming hearing.
ReCreate South Africa, a leading coalition of creators and users of copyrighted work which has been admitted to the court as amicus, plans to challenge these arguments head on, rejecting the notion that changes in copyright provisions are arbitrary in any way. On the contrary, ReCreate will argue that the proposed changes are squarely in the public interest.
Ultimately the debate revolves around whether copyright laws in South Africa should prioritise existing rights-holders at all costs, most of whom are large publishers, broadcasters, streaming platforms and so on, or whether it’s acceptable to tip the balance in favour of creators and users.
The Copyright Amendment Bill has been passed twice by Parliament. Parliament’s rationale has been that it is’s urgent to modernise the copyright regime in the country, and most importantly to address the needs of the two main stakeholders in the creative and knowledge economies: creators and users.
The Copyright Amendment Bill (CAB) strengthens the rights of creators, by providing a ‘right to fair royalties or equitable remuneration’ for authors, artists, composers, performers and other creators. It also strengthens the moral rights of authors over their works and shortens the reversion window after which works return to their original creators.
The legislation also provides urgently-needed relief for users of copyrighted material in the country, especially teachers and learners who are often priced out of the market for textbooks and other essential learning materials. Similarly it broadens access to knowledge for journalists, researchers, libraries and archives and for the visually impaired, amongst others. It does this through targeted copyright limitations and exceptions and through the introduction of a ‘fair use’ clause, similar to that in operation in at least a dozen xx countries around the world.
But the President says neither of these provisions are acceptable since both would risk creating a disadvantage for existing rights-holders. Several aspects of the President’s opposition to the legislation are intriguing: -
First, the President is opposing legislation drafted and passed by his own party, the African National Congress (ANC), after years of extensive consultation with stakeholders. It is’s unprecedented for the President, who does not have a veto over legislation in South Africa, to try to block ANC legislation. This raises questions about who might have influenced the President to obstruct his own legislation. We know that rights-holders and several governments have suggested that the CAB will jeopardise inward investment and trade relations.
Second, the new legislation follows the spirit and the letter of the South African constitution, which mandates the government to put in place measures to address the legacy of racial discrimination in the country. It is’s unusual for the President to oppose these measures unless he is experiencing feeling external pressure.
The President’s objections rely predominantly on the property clause in the constitution. This is one of several controversial ‘sunset clauses’ added to the constitution at the last minute to appease white South Africans and in particular white-led political parties, businesses and landowners who feared that they would lose everything in the transition to a democracy based on one-person-one-vote in South Africa.
The property clause provides that no action by the government may lead to arbitrary deprivation of property of its citizens. In other words, any act which deprives South Africans of property must be rational, in the public interest and must affect people in a predictable non-arbitrary manner, through a law of general application.
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It seems plain that copyright reforms aimed at protecting creators’ livelihoods and broadening access to knowledge are rational, fair, and non-arbitrary.
So given all of this -
, why did the President refer the Bill to the Constitutional Court in the first place?,
why did he change his view from his 2022 Heritage Address, as mentioned above?
What is the basis and substance of his case? of his case? How and how is he making his case?
Is he really serious about improving the lives of artists and creators?