Copyright Amendment Bill: Music bodies welcome Ramaphosa's decision

Ramaphosa sent back the two controversial bills to Parliament for reconsideration after expressing reservations regarding their constitutionality. The two bills had been in Ramaphosa's in-tray for more than a year.

Part of the backlash the Copyright Amendment Bill has received is based on the introduction of the terms “fair use” or “fair dealing”, which could result in the exploitation of creators.

“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," Ramaphosa said in a 16 June letter to National Assembly speaker Thandi Modise. “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.”

Ramaphosa further expressed concerns about creators’ rights to ownership of their work. “It further regulates the manner in which related performances are made and shared. 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.”

TUMSA’s Gabi Le Roux told Music In Africa that the union noted “with much gratitude the announcement by our beloved leader, President Cyril Ramaphosa, to send the Copyright Amendment Bill and Performers’ Protection Amendment Bill back to Parliament for review.

“The fact that the President took a year to apply his mind on these bills means that our leader realised the haphazard and one-sided way the bills were rushed and manipulated through Parliament under the previous administration. It’s typical of the way things were done during the dark days of State Capture. There is clearly hope for our nation again under President Ramaphosa.”

Sheer Publishing founder and managing director David Alexander echoed Le Roux's sentiments. “While the music community is heartened to see that the poorly drafted Copyright Amendment Bill was sent back to Parliament for more consideration, it was frustrating that we were a signature away from commercial disaster in the local music industry. Although the primary reason the president sent it back is its lack of constitutionality, it is also not the only reason that he has taken this course of action, and he has listed a couple of other issues, which I believe will give the drafters more reason to engage with the practitioners in the industry in the next round.

“The creators and the businesses that support them, whose daily labour will be governed by the bill, know that we don’t live in an isolated country at the tip of Africa, but in a globally networked economy where the impact of legislation in our own country will impact our ability to provide the fruits of our labour for sale in the global marketplace.”

Alexander said that even before the COVID-19 pandemic, creators were already at a disadvantage due to big tech's minute returns in terms of compensation.

“In a COVID-19 world, where our lives are much more online and the ability for the music industry to earn from live in-person performance is completely or largely limited, then national legislation must protect our right to be fairly remunerated from the use of our creative output on all media and platforms. I know that our current Copyright Act requires modernisation and we would like to be partners with the drafters in the process. We can look to the Copyright Directive in Europe and the attempts to close the safe harbour provisions for platforms around the world for better examples of how to integrate the challenges of modern technology while protecting the rights of the creator.”

In August last year, TUMSA and the Music Publishers Association of South Africa led a peaceful demonstration in Johannesburg to implore Ramaphosa not to sign the Copyright Amendment Bill into law. The two groups marched to the Gauteng sport, arts, culture and recreation MEC's offices and handed a memorandum, which was submitted to Ramaphosa. A similar demonstration was held in Cape Town in April where Ramaphosa was expected to unveil new trains.