Author name: Sanya Samtani

— Sanya Samtani[1] In Part I of this blogpost, I briefly set out the procedural history of the copyright reform process that led to the Presidential Referral of the Bill to the Constitutional Court. I also briefly explained the scope of Referral proceedings and the parties involved. In this Part, I discuss the issues raised during the hearing and what to expect going forward. Issues raised during the hearing In line with the Court’s past jurisprudence, the proceedings centred around the constitutionality of the two sets of provisions referred by the President on the basis that he referred them – the fair and equitable remuneration provisions and the new exceptions and limitations. I discuss the arguments raised regarding each set in turn. I focus here on the oral submissions – the full written submissions on record are available here. Fair and equitable remuneration (proposed sections 6A, 7A, 8A) On the fair and equitable remuneration provisions, the President remained concerned that these provisions apply retrospectively which, in his view, would constitute arbitrary deprivation of property. The President explained that although Parliament deleted the specific subsections that explicitly provided for the retrospective application of the provisions, he believed that the provisions were still applicable retrospectively. Retrospectivity, he argued, would constitute a substantial interference in the copyright owner’s enjoyment of their property (and the profits derived from it) as it would open up the possibility for windfall gains for authors notwithstanding whether their original historical assignment of copyright was unfair. Moreover, the President argued that the indiscriminate application of these provisions to all past and future assignments constituted an arbitrary deprivation of property. To prevent retrospective application, the President argued that it was necessary for the language of the provisions to explicitly state that they would apply prospectively. Underlying this argument, the President confirmed that in his view, copyright constituted a constitutionally protectable set of property interests. When questioned, the President conceded that should these provisions be read exclusively prospectively they would not be unconstitutional. The President’s initial position was supported by the Freedom Front Plus. It was also supported by the Democratic Alliance who argued that the only reasonable interpretation of these provisions was that they applied retrospectively to past and future profits derived from the exploitation of the work under copyright. On a prospective interpretation, the DA argued, the language that allows the existence of an agreement to the contrary in proposed section 6A(2) would render the provision a nullity. The DA also supported the proposition that these provisions ran the risk of arbitrarily depriving copyright owners of their property on the basis that there was a substantial interference with the right by significantly reducing its value, imposing uncertainty costs upon the entire industry and interfering with the contractual autonomy of the parties. Further, the DA argued that the lack of similar language in sections 7A and 8A was irrational – and although the President adopted this argument in his oral submissions, irrationality was not expressly part of the 2020 or 2024 Referral letter, raising the question whether the Court can consider it. NAB/SANEF/CFE aligned themselves with the arguments made by the President that these provisions had retrospective effect and ran the risk of arbitrarily changing the rights negotiated and acquired by broadcasters in the current regime, asserting that the broadcasting industry may face dire consequences as a result. Parliament, however, explained in their oral submissions that they had a clear legislative intent to ensure that the impugned provisions had prospective effect. This intent was demonstrated by the deletion of the relevant subsection from all three provisions, as acknowledged by the President, in addressing the reservations set out in his 2020 Referral letter. Recreate Action aligned with Parliament’s position on the deletion of the explicit retrospectivity provisions, and argued that there is a presumption against retrospectivity in the law. Where a provision can be read prospectively, it must be read in that manner. Recreate Action responded to the DA’s argument that a prospective reading of section 6A renders it a nullity by explaining that the non-obstante clause in that section would ensure its continued application. In any event, Recreate Action argued that even if the impugned provisions applied retrospectively, that did not in and of itself render them unconstitutional. To the extent that they were a deprivation of property, Recreate Action argued that even if copyright was incorporeal constitutional property, it required a lower threshold of justification for such deprivation, and that the deprivation only encompassed a single incident of ownership – the royalty right. Finally, Recreate Action responded to the claim of indiscriminate application as arbitrariness by explaining that the standards of ‘fairness’ and ‘equity’ in the text of these provisions act as levers to calibrate the application of these provisions to address unequal bargaining power and prevent any windfall gains.   In addition to testing these arguments, the Court raised concerns about the specificity of the President’s reservations with regard to these provisions. In particular, the Court was concerned as to whether Parliament had a meaningful opportunity to address the whole of these provisions – in other words, whether the President’s 2020 Referral letter flagged the whole of these provisions as triggering his reservations, or just the relevant subsection that explicitly provided for their retrospective application. If the Court were to find that the whole provisions were not referred to Parliament – to enable Parliament’s consideration of them prior to the Referral to the Court – this may bar the consideration of the merits. New exceptions including education and library exceptions (proposed sections 12A-D, 19B, C) I now turn to the second set of provisions that the President was concerned about – the new exceptions and limitations. The President argued that the exceptions and limitations sought to be introduced go too far and would conflict with the normal exploitation of the work and cause unreasonable prejudice to the rights holder. The President was also concerned that the fair use provision suffered from vagueness and introduced a level of

— Sanya Samtani[1] On 21 and 22 May 2025, the South African Constitutional Court heard the matter of Ex Parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill. The hearing in these ‘Referral proceedings’ was significant as it was only the second time in South Africa’s history that the President triggered an exceptional constitutional mechanism to refer a Bill to the Constitutional Court for a decision on the constitutionality of certain aspects instead of signing it into law. The Court’s decision in this case will determine the fate of a long drawn-out legislative reform process aiming to transform and modernise South Africa’s apartheid-era copyright law and bring it into the constitutional era. The Court adjourned to deliberate on the matter and the judgment will be handed down in a few months. In this blog post, I briefly outline the arguments advanced by the parties and amici curiae and highlight the issues for determination by the Court. While the Performers’ Protection Amendment Bill is also at issue, I focus on the Copyright Amendment Bill [B13F-2017] (‘the Bill’) as the aspects of the Performers’ Protection Amendment Bill that are at issue are those that incorporate the Copyright Amendment Bill. The hearing focused almost exclusively on the Copyright Amendment Bill. This blog post is in two parts: Part I deals with the procedural history that led to the Presidential Referral of the Bill and sets out an overview of the referral proceedings, and Part II deals with the issues raised during the hearing and sets out the next steps. The long and winding road to the Constitutional Court For those coming to this issue afresh, South Africa has been in the process of reforming its copyright law for over a decade, if not longer. The current Copyright Act 98 of 1978 is old-order legislation, enacted prior to democracy. While the South African Constitution allows for apartheid era legislation to be saved if it can be interpreted to be consistent with the Constitution, the Copyright Act freezes pre-constitutional economic and social relationships in the creative industry and knowledge production processes. While some parts of it may be read compatibly with the Constitution, other parts of it are in need of urgent reform. As the South African Parliament has recognised in the memorandum on the objects of the Bill, the existing arrangements have had adverse impacts upon artists due to the “power imbalance, vulnerabilities and abuse taking place in the music industry”, people with disabilities, educators and researchers. In addition to addressing this, the Bill seeks to make South African copyright law consonant with “the ever evolving digital space” as the current Act is “outdated and has not been effective in a number of areas”. In doing so, the Bill clarifies in some detail the powers and functions of the Copyright Tribunal and, for the first time, regulates collective management organisations. The procedural history leading up to the Constitutional Court hearing is central to understanding why the enactment of the Bill as a whole is subject to the Court’s determination of two narrow and specific issues. I address this briefly. Parliament passed the Copyright Amendment Bill [B13B-2017] in March 2019. The President, instead of signing the Bill, triggered a constitutional mechanism to refer the Bill back to Parliament citing procedural and substantive constitutional reservations in June 2020 (‘2020 Referral letter’). At that stage, concerned about pervasive and persistent copyright discrimination being further exacerbated by the delay, Blind SA – a disability rights organisation by and for people with visual and print disabilities – launched litigation against the state for interim relief pending the conclusion of the legislative reform process. Consequently, in 2022, the Constitutional Court in Blind SA v Minister of Trade, Industry and Competition (‘Blind SA I’) held that the Copyright Act 1978 was unconstitutional to the extent that it unfairly discriminated against people with visual and print disabilities and read-in a court-crafted remedy to rectify this discrimination with a deadline of two years from the date of judgment for Parliament to enact legislation. The remedy drew heavily from the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘Marrakesh VIP Treaty’), on the basis that this treaty was in the process of being domesticated through copyright reform, though South Africa had not yet acceded to it.  In the meanwhile, over a period of approximately four years, Parliament considered and addressed the President’s constitutional reservations and additionally gave draft legislative effect to the Court’s judgment in Blind SA I passing the Copyright Amendment Bill [B13F-2017] in February 2024. The deadline set by the Constitutional Court in Blind SA I lapsed in September 2024, along with the court-crafted remedy, and although Parliament passed the Bill, the President did not take action in response to Parliament’s amended version.  Blind SA then urgently sought from the Constitutional Court a re-reading in of the same remedy or any other remedy that would be just and equitable following the lapsing of the remedy. Days later, the President opted for an exceptional constitutional mechanism by which he referred the Bill to the Constitutional Court (‘2024 Referral letter’) citing that two of his 2020 constitutional reservations had not been ‘fully accommodated’ by Parliament (‘the Referral proceedings’ discussed below). The Court passed an interim order in December 2024 reading in once again the remedy in Blind SA I until the final determination of the matter – which took place on 7 May 2025. In Blind SA v President of the Republic of South Africa (‘Blind SA II’), rather than further extending the Blind SA I remedy, the Court took note of the significantly advanced legislative process and the fact that the President did not have any reservations concerning the provisions regarding people with disabilities and, instead, read-in those provisions and the relevant definitions from the Bill into law, until such time as amended copyright law came into force.

On 7 May 2025, the Constitutional Court of South Africa handed down judgment in Blind SA v President of the Republic of South Africa and Others [2025] ZACC 9 (‘Blind SA II’). The judgment read-in an immediately operational accessible format shifting provision for people with all disabilities across the spectrum as well as expressly providing for the cross-border exchange of accessible materials without the requirement of authorisation. In doing so, it gave effect to South Africa’s constitutional and international obligations to ensure that people with disabilities do not experience unfair discrimination (and other rights violations) – in this case, by the operation of copyright legislation. It also transformed South African law to align with the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘Marrakesh VIP Treaty’) and, by addressing this provision to people with all disabilities, it went beyond Marrakesh’s “floor”, to fulfil its obligations under the South African Constitution and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).  Blind SA II is the latest major instalment in a long-standing – and ongoing – saga of South Africa’s copyright reform process that began over a decade ago. South Africa’s Copyright Act 98 of 1978 does not contain provisions that explicitly permit accessible format shifting. People with disabilities have thus had to expose themselves to criminal and civil sanction to access educational and cultural materials that are unavailable in accessible formats. On this basis, and due to the protracted reform process, Blind SA, represented by SECTION27, approached the High Court in 2021, arguing that the lack of such provisions in the Copyright Act constituted unfair discrimination against people with disabilities, and violated several rights in the Constitution’s Bill of Rights including the rights to equality, dignity, education, culture and freedom of expression. The High Court held that the Act was thus unconstitutional. The Constitutional Court confirmed the unconstitutionality of the Act to this extent in Blind SA v Minister of Trade and Industry and Others [2022] ZACC 33 (‘Blind SA I’). Writing elsewhere, I have conceptualised this as copyright discrimination. To remedy the constitutional defect, the Constitutional Court read-in a court-crafted provision (s 13A) that explicitly permitted accessible format shifting – but limited its scope of application to literary and artistic works and to people with visual and print disabilities only. Mindful of the ongoing legislative process, the Court suspended the declaration of invalidity and limited the reading-in remedy to a period of two years – after which it envisioned that the reform process would be concluded. However, on 21 September 2024, the remedy ordered by the Court in Blind SA I lapsed, creating – in the Court’s own words in Blind SA II – an “immediate rights vacuum affecting the constitutional rights of visually and print-impaired persons” [para 55]. Although Parliament had acted within the time frame set by the Court’s order by passing the Copyright Amendment Bill in February 2024, the President did not make a decision on whether to sign the Bill into law within the prescribed time frame. Following the lapsing of the remedy, Blind SA urgently approached the Constitutional Court seeking relief amongst other things on the basis that the scheme of copyright – and its criminal and civil consequences for infringement – required a clear statement of permitted acts that were exempted from infringement. Following the lapsing of the remedy, the legal position was unclear, creating uncertainty in the face of confirmed constitutional rights violations. Blind SA thus sought a re-reading in of the same remedy (s 13A) until the process concluded, or any other remedy that the Court considered just and equitable.  Days after Blind SA’s application was filed, on 10 October 2024, the President triggered a rare constitutional mechanism, declining to sign the Bill into law and instead referring it to the Constitutional Court citing that two of his constitutional reservations, previously raised in 2020, when he referred a previous version of the Bill to Parliament, had not been fully accommodated by Parliament. Notably, his reservations did not concern the accessible format shifting and cross border exchange provisions (proposed s 19D of the Bill) [para 53]. In the words of the Court, “the provision maintains its constitutional integrity and remains separate from the concerns raised in the President’s referral”[para 57]. However, due to the fact that these provisions were part of the Bill being impugned by the President, they also remain in abeyance. The Court is now due to hear the matter concerning the President’s referral on 21 and 22 May 2025 (‘the Referral proceedings’) that will determine the eventual fate of the Copyright Amendment Bill.  Meanwhile, the Constitutional Court held a hearing in November 2024 where it considered Blind SA’s application for urgent relief – in light of the President’s referral. As none of the parties disputed urgency, the hearing centred around what a just and equitable remedy would look like, given the circumstances. Subsequently, in an interim order dated 18 December 2024, to remain in force until the Court’s final judgment in the case, the Court read-in once again its remedy from Blind SA I (s 13A), effectively ensuring that people with visual and print disabilities could continue to engage in accessible format shifting without it being considered an infringement of copyright. The lacuna in the law was temporarily filled.  This brings us to 7 May 2025. The Court handed down its judgment in Blind SA II summarising that back in 2022, “the constitutional defect that necessitated this Court’s intervention did not lie in any specific provision of the Copyright Act that needed to be struck down, but rather in the absence of necessary provisions to protect the rights of persons with visual and print disabilities”[para 47], and given the change in circumstances in 2025, when considering an appropriate just and equitable remedy “[t]he potential violation of fundamental rights emerges as the decisive consideration, particularly given the absence of certainty regarding the Bill’s eventual assent”[para