South Africa's Copyright Amendment Bill: Balancing creators' rights and public access in the digital age

The Copyright Amendment Bill is one of the most ambitious reforms in South Africa’s recent history and cuts across the economy, creators’ rights, and trade relations, explains Miguel Bibe of Inventa.

The Copyright Amendment Bill (CAB) in South Africa has been one of the most debated legislative proposals in recent years, aiming to modernise the country’s copyright framework.

As of 2024, the bill is among 20 pieces of legislation awaiting President Cyril Ramaphosa’s signature, but its enactment has been delayed due to concerns over its constitutionality. The bill has been referred to the Constitutional Court for review, a decision that will significantly impact South Africa’s creative and intellectual property landscape.

The existing Copyright Act of 1978 is widely considered outdated, failing to address the complexities of the digital age.

The CAB seeks to bring South Africa’s copyright laws in line with international standards while also incorporating provisions that prioritise accessibility, fair use, and the protection of creators' rights.

However, the bill has faced opposition from various stakeholders, including artists, publishers, international trade partners, and industry professionals who argue that some of its provisions could have unintended negative consequences.

Fair use, accessibility, collecting societies

One of the most significant aspects of the CAB is the introduction of a fair use doctrine. This provision allows copyrighted material to be used without explicit permission in specific cases such as education, research, news reporting, and parody. Proponents argue that this aligns South Africa with jurisdictions like the US, where fair use provides flexibility and fosters innovation.

However, critics, particularly in the publishing and entertainment industries, fear that the broad wording of the provision could lead to widespread copyright infringement, harming local creators who depend on royalties.

Another critical provision is the protection of people with disabilities. The bill introduces measures to ensure that copyrighted works can be adapted into accessible formats, such as Braille or audiobooks, without requiring permission from the copyright holder.

This aligns with the Marrakesh Treaty, which South Africa has ratified and represents a significant step toward inclusivity. Despite general support for this provision, some industry players worry about how it will be implemented in practice and whether it could be misused.

The bill also seeks to regulate collecting societies more strictly. These organisations manage royalties on behalf of creators, ensuring they receive fair compensation when their works are used.

The CAB introduces measures to improve transparency and accountability within these organisations, addressing longstanding concerns about mismanagement and unfair distribution of royalties. While this is widely seen as a positive move for artists, some collecting societies have opposed the additional regulatory burden.

Another major reform proposed is the resale of royalty rights for artists. This provision ensures that visual artists receive a percentage of the sale price every time their artwork is resold.

This recognises the continued value of artistic works and prevents artists from missing out on financial benefits when their work appreciates over time. Countries like France and Australia have implemented similar rights, and many South African artists have welcomed this provision as a means of securing their financial future.

The bill also criminalises the circumvention of technological protection measures (TPMs). TPMs are security features used to prevent unauthorised access to digital content, such as encryption on e-books or digital music files.

By making the unauthorised bypassing of these measures illegal, South Africa aligns itself with international anti-piracy efforts. However, concerns have been raised about whether this provision could inadvertently restrict legitimate use of copyrighted material, such as the repair and modification of software for educational purposes.

Despite these progressive reforms, the CAB has faced resistance from both local and international stakeholders. One of the most contentious points is whether the bill aligns with international trade agreements, particularly in relation to the US and the European Union.

Some trade bodies have argued that the bill’s provisions on fair use and copyright exceptions could create conflicts with South Africa’s trade obligations, potentially affecting investment in the creative sector.

Moreover, local authors, musicians, and filmmakers have expressed concerns that the CAB does not adequately protect their rights. Many fear that the fair use provisions will make it easier for their work to be used without proper compensation, leading to financial losses.

Some industry representatives argue that rather than adopting a broad fair use model, South Africa should have followed a fair dealing approach, which provides clearer guidelines on permissible use.

Another major issue is the bill’s potential economic impact. The South African creative industry contributes significantly to the country’s GDP, supporting thousands of jobs.

If the CAB discourages international publishers, music producers, and filmmakers from investing in South Africa due to concerns over copyright protection, this could lead to job losses and reduced revenue for the industry.

On the other hand, proponents argue that the bill will promote local innovation and empower small creators by making knowledge and cultural works more accessible.

The decision to refer the CAB to the Constitutional Court underscores the complexity of these issues. The court will assess whether the bill complies with the South African Constitution, particularly in terms of property rights, access to information, and freedom of expression.

This legal review is crucial, as it will determine whether the bill can be signed into law as it stands or whether further amendments are necessary.

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

While some nations have embraced flexible copyright frameworks, others have maintained stricter controls to protect intellectual property. South Africa’s approach, if implemented successfully, could serve as a model for other developing countries seeking to modernise their copyright laws.

The Copyright Amendment Bill represents one of the most ambitious legislative reforms in South Africa’s recent history. Its potential to modernise the country’s copyright regime, improve access to information, and protect artists’ rights makes it a landmark piece of legislation.

However, the concerns raised by various stakeholders highlight the challenges of crafting laws that balance competing interests. As the bill awaits a ruling from the Constitutional Court and eventual presidential approval, its fate remains uncertain.

What is clear, however, is that the outcome of this process will have a lasting impact on South Africa’s creative economy, access to knowledge, and international trade relations.

Miguel Bibe is a trademark and patent attorney at Inventa. He can be contacted at mbibe@inventa.com