The Copyright Amendment Bill (CAB) has been described as one of South Africa’s most ambitious legislative reforms in recent history, touching on economic issues, creators' rights, and international trade relations, according to Miguel Bibe, a representative at Inventa Intellectual Property.

    As one of the most controversial legislative proposals in recent years, the CAB seeks to modernize South Africa’s national copyright framework.

    As of 2024, the bill remains among 20 pending pieces of legislation awaiting signature by President Cyril Ramaphosa. However, progress has stalled due to constitutional concerns. The bill has been referred to the Constitutional Court, and its ruling is expected to have significant implications for South Africa’s creative industries and broader intellectual property (IP) regime.

    The current Copyright Act of 1978 is widely considered outdated and ill-equipped to handle the complexities of the digital age.

    The CAB aims to align South African copyright law with international standards, incorporating provisions that prioritize accessibility, fair use, and protection of creators' rights.

    However, the bill has drawn opposition from a wide range of stakeholders, including artists, publishers, international trade partners, and industry experts, many of whom argue that certain provisions may have unintended negative consequences.

    Fair Use, Accessibility, and Collective Management Organizations

    One of the most groundbreaking reforms proposed by the CAB is the formal introduction of the fair use doctrine. This provision would allow copyrighted content to be used without express permission in specific contexts such as education, research, news reporting, and parody. Proponents argue that this aligns South Africa with jurisdictions like the United States, providing flexibility and fostering innovation.

    Critics in the publishing and entertainment industries worry, however, that the broadly worded clause could lead to widespread infringement and undermine the livelihoods of local creators who depend on royalties.

    Another key clause focuses on the rights of persons with disabilities. The bill proposes mechanisms to allow copyrighted works to be converted into accessible formats—such as Braille or audiobooks—without requiring permission from rights holders. This aligns with South Africa’s ratification of the Marrakesh Treaty and represents a major step toward building an inclusive society. Although the provision enjoys broad support, concerns remain about potential abuse and the implementation of enforcement mechanisms.

    The bill also introduces stronger oversight of collective management organizations (CMOs), which administer royalties on behalf of creators. The CAB proposes measures to enhance transparency and accountability within CMOs—long a source of concern due to alleged mismanagement and unfair distribution of royalties. While widely seen as a positive step, some CMOs have pushed back against the added regulatory burdens.

    Another important reform concerns the resale royalty right for artists, ensuring that visual artists receive a share of the proceeds whenever their work is resold. This acknowledges the lasting value of artworks and ensures artists benefit from future appreciation. Similar rights already exist in countries like France and Australia, and many South African artists have welcomed the proposal as a means of economic empowerment.

    The bill also criminalizes the circumvention of technological protection measures (TPMs), such as encryption on digital books or music files. By making it illegal to bypass these technologies without authorization, South Africa aligns itself with global anti-piracy norms. Still, there are concerns that such measures could unintentionally restrict legitimate uses, such as repairing or modifying software for educational purposes.

    Despite its progressive intentions, the CAB continues to face resistance from both domestic and international stakeholders. One key point of contention is whether the bill complies with South Africa’s international trade commitments, particularly with respect to agreements involving the United States and the European Union.

    Some trade bodies argue that the bill’s fair use and copyright exceptions may violate these obligations and could deter investment in South Africa’s creative industries.

    Local authors, musicians, and filmmakers have also raised concerns that the bill may not offer adequate protection for their rights. Many fear that fair use provisions will lead to uncompensated exploitation of their work, causing financial harm.

    Industry representatives have proposed that South Africa adopt a fair dealing approach instead, which provides clearer guidance on permissible uses than the broader and more open-ended fair use doctrine.

    Another major debate centers on the bill’s potential economic impact. South Africa’s creative sector makes a substantial contribution to GDP and supports tens of thousands of jobs.

    Critics warn that if the bill discourages investment from international publishers, music producers, and film companies due to perceived weak IP protections, it could result in job losses and reduced industry income.

    Supporters argue, on the other hand, that the bill promotes broader access to knowledge and culture, boosts domestic innovation, and empowers small-scale creators.

    The referral of the bill to the Constitutional Court highlights the complexity of these issues. The court will assess whether the bill complies with the spirit of South Africa’s Constitution, with particular emphasis on property rights, access to information, and freedom of expression.

    This judicial review is crucial, as it will determine whether the CAB can be signed into law in its current form or must undergo further amendments.

    In a broader context, the CAB reflects a global shift in copyright law. In the digital age, countries are grappling with how to balance creators' rights with public access to information.

    Some countries are adopting flexible copyright regimes, while others maintain strict controls to protect intellectual property. If successfully implemented, South Africa’s reforms could serve as a model for other developing nations seeking to modernize their IP frameworks.

    The CAB is one of the most ambitious legislative undertakings in modern South African history. It holds the potential to modernize the nation’s copyright regime, expand access to information, and safeguard the rights of artists.

    However, the concerns raised by diverse stakeholders underscore the challenges of drafting legislation that balances competing interests. With the bill awaiting the Constitutional Court’s judgment and final presidential approval, its fate remains uncertain.

    What is clear is that the outcome of this legislative process will have lasting implications for South Africa’s creative economy, access to knowledge, and international trade relations.

Source:http://ipr.mofcom.gov.cn/article/gjxw/lfdt/fz/bqfz/202504/1991415.html