Africa: Copyright & Public Interest

— 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.

In its landmark ruling on 7 May 2025, the Constitutional Court has opened the doors to access to information and accessible formats for people with disabilities.  It has also paved the way for South Africa to ratify the 2013 Marrakesh Treaty. For decades, Blind SA has been lobbying against the ‘book famine’ and lack of provisions for blind and visually impaired persons in the current copyright law.  This discrimination has gravely affected their social and economic development, education, work and leisure opportunities and other aspects of their lives, including lack of equal access to reading material that sighted persons have taken for granted.  The law has in fact made copying and reuse of copyright work in accessible formats illegal, without permission from rightsholders, essentially criminalising people for needing to access information.  Historical Context: 1999 – 2019 As early as 1999, the library and educational sectors raised concerns at a multi-stakeholder workshop convened by the Department of Trade and Industry (DTI) about the discriminatory nature of the current copyright law against people with disabilities.   DTI proposed amendments to the Act in 2000. More restrictive provisions were proposed for education, libraries and archives, and minimal provisions were included for people with visual impairments.  A task team mandated by the South African University Vice-Chancellors’ Association of South Africa (SAUVCA) and the Committee of Technikons (CTP), predecessors of University South Africa (USAf), challenged the proposed amendments to the Act in Parliament.  These proposals were subsequently withdrawn and not included in the Amended Copyright Act of 2002, which then only addressed needle time for musicians.  The task team had already succeeded in stopping more restrictive draft Regulations being passed in 1998. From 2002 until 2009 there was a legislative impasse with regard to copyright reform. Due to many problems in the music industry, the Department of Trade and Industry decided to commence a process of reform in 2009.  It commissioned various research studies and established a Copyright Review Commission to investigate ongoing problems in the music industry.  The DTI convened workshops for stakeholder groups and input was given on various aspects of the copyright law. To ensure a holistic approach to the 1978 Act, the DTI was provided with important documents and resources relating to education, libraries and other information services, and persons with disabilities, and other relevant issues sourced from WIPO, WTO, UNESCO, Creative Commons, the International Federation of Library Associations and Institutions (IFLA), Electronic Information for Libraries (EIFL)’s Model Copyright Law, and from regional copyright project findings and local organisations. Appropriate clauses and provisions were also submitted to the DTI relating to countries with progressive copyright laws where developed countries were enjoying benefits that South Africa, a developing country, still did not have in its copyright law. In July 2015 the DTI published a draft Copyright Amendment Bill for public comment and it was also discussed at a multistakeholder workshop convened by the DTI in Gauteng.  After receipt of many submissions and necessary edits and amendments, the Bill was forwarded to Parliament in 2017.   The Bill included Section 19D with appropriate provisions for people with disabilities, including those who are blind, deaf, dyslexic or suffer from other disabilities that prevent them from accessing information. In 2013, South Africa strongly supported the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The Treaty came into effect in 2016, but South Africa did not ratify it, stating that its national copyright law would need to be amended first to include appropriate provisions for people with disabilities.  Some years later, it confirmed that once the Copyright Amendment Bill has been signed, it will move to ratify the Treaty.  Parliamentary Approval; Presidential Rejection The first Parliamentary process took over two years but the Bill was finally passed by both Houses of Parliament  in 2019.  It was then referred to the President for assent, but he did not act on the Bill for a period of 15 months.  The President was being lobbied strongly by rightsholders, collecting societies and multinationals, and was receiving unprecedented pressure from the US Trade Representative’s Office (USTR) and the EU  Commission, to stop the Bill. This led him to decide not to sign the Bill and to refer it  back for Parliamentary review on 16 June 2020.  He requested a review of certain clauses, including fair use, exceptions for education and academic activities, libraries, archives, museum and galleries, and temporary copies, questioning their constitutionality.  Notably, these reservations did not include Section19D. This also led to the Portfolio Committee on Trade and Industry agreeing to send the Bill for retagging from a Section 75 Bill (National) to a Section 76 Bill (Provincial), which resulted in a drawn-out process through all nine Provincial Legislatures.  Blind South Africa Litigation According to previous commentary, “Recognising that the referral would result in an inordinate delay, Blind SA approached the Gauteng High Court in 2021, primarily seeking to have the Copyright Act declared unconstitutional to the extent that it “limits and/or prevents persons with visual and print disabilities accessing works under copyright that persons without such disabilities are able to access”. Blind SA also sought an order reading in the provisions of the amendment bill that sought to give effect to the Marrakesh Treaty”.[1] On 7 December 2021, the Gauteng High Court ruled that the current Act is unconstitutional as it relates to people with blind and visual impairments . On 21 September 2022, the  Constitutional Court confirmed this ruling and made a landmark decision, marking the first time in its 27-year history that it addressed a copyright law case. The Court recognised that the absence of provisions for accessible formats in copyright law constitutes disability discrimination.  This ruling set a global precedent, affirming that copyright law, like any other law, must be interpreted in a way that aligns with constitutional principles, including the rights of people with disabilities.  As an interim solution, the Court read-in a temporary provision (Section 13A) into the current Act, allowing for the creation

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

By ReCreate South Africa The cost of excluding billions of people in Africa and the Global South from access to knowledge could be huge for future generations. Knowledge-sharing in Africa is not always transactional, and the existing IP and copyright paradigms are not working well for creators or audiences on the continent. Creators are often poorly remunerated and in many cases audiences and students cannot afford access to knowledge and entertainment. Some global corporations take an extractive and exploitative approach to African creativity. Africa needs a new knowledge governance system to take into account the role of traditional and indigenous knowledge. These were the conclusions of an international conference entitled “Copyright and the Public Interest: Africa and the Global South” held last month in South Africa. The convenors were ReCreate South Africa, a coalition of creators and users of copyright material and the conference took place at the University of the Witwatersrand, Johannesburg (3 February), at the University of Cape Town Library (5 February) and at Innovation City (6 February). This conference was a follow-on from ReCreate’s inaugural conference on the “Right to Research in Africa” held at the University of Pretoria and the University of Cape Town in January 2023. Conference partnered with Program on Information Justice and Intellectual Property (PIJIP), the intergovernmental organisation, South Center, the University of Cape Town’s IP Unit, Mandela Institute, Law School and more. The conference was made possible by PIJIP and Arcadia, as well as Open Air. You can watch the full conference sessions online. IP as a tax on African Creativity: Protecting the Livelihoods of Creators In his opening input, Ben Cashdan, convener of ReCreate South Africa and former economic advisor to President Nelson Mandela, said that IP royalties are a de facto tax on Africa. “Income from IP royalties on all creativity, on all inventions around the world, topped $1 trillion in the past 24 months for the first time, and the United States gets about $130 billion of that. Africa gets a tiny fraction. Could that be because we don’t have creatives? Could that be because we don’t have actors, writers, musicians? Obviously not. The system operates in such a way that we don’t get the fruits of our labor here in this country and on this continent.” South African singer Mercy Pakela, whose music topped the charts in the 1980s, recounted how she had signed with record labels so that her music could be heard by music lovers around the world, but over 40 years later she still feels she has not received fair remuneration. Pakela said “I wish I knew then what I know now because then I did not know that it was business. I just wanted to be on stage. I thought it was just about talent.” Jack Devnarain, Chairperson of the South African Guild of Actors highlighted that many performers in Africa die poor due to the power imbalance between artists and their distributors or rights owners. He pointed a finger at those whose business models restrict the livelihoods of African performers and who are opposed to copyright reform.  “There are people, particularly the American-based organizations, the corporate giants in the Global North that are working very hard, and I’m talking about the publishers, the studios, the streamers, the broadcasters, that do not want South African actors to have a royalty earning right.” South Africa’s CAB and Why Teachers Need Fair Use The Copyright Amendment Bill (CAB), passed by Parliament in South Africa, but still awaiting the President’s signature, aims to solve the problem of exploitation of artists by introducing a right to fair royalties or equitable remuneration. The CAB also broadens access to knowledge for communities. Hence it addresses the needs of both constituencies, creators and users. The President has referred the Bill to the Constitutional Court over concerns that it may lead to arbitrary deprivation of property of rights holders. Advocate Iain Currie, lawyer for ReCreate raised questions around whether Intellectual Property is property in the traditional sense and also challenged the view that adjustments to Copyright laws in the public interest are arbitrary.  One of the main objectives of the CAB is to ensure that teachers and learners have access to educational materials, which is clearly a public interest goal. According to Dr Mugwena Maluleke, President of Education International, “there is a shocking shortage of 44 million teachers worldwide. A major catalyst for this shortage is the inability to attract and retain teachers due to inadequate conditions for providing quality teaching,” including a shortage of textbooks and learning materials. “Fair use in education is the key that unlocks the door to a world of knowledge and creativity, by allowing educators to utilize copyrighted materials in their teaching.”  Moreover “Fair copyright legislation is essential to enabling teachers to adapt and use the material and reach an increasingly diverse student body.”  Maluleke is also General Secretary of SADTU, the largest teachers union in South Africa, with a membership of over 250 000 teachers and workers.  Dr Sanya Samtani, Senior Researcher at the Mandela Institute in the Law Faculty at the University of the Witwatersrand, Johannesburg echoed these sentiments. “The Copyright Amendment Bill is an example of the state trying to regulate copyright, trying to fulfill its international obligations on copyright, and also its human rights obligations, which are constitutional and international in nature.” ‘AI for Good’ in Africa The conference considered the importance of Artificial Intelligence (AI) in solving the world’s most pressing challenges, including climate change, pandemic responses and countering misinformation. Generative AI has understandably raised alarm bells amongst creatives. Professor Vukosi Marivate, Chair of Data Science at the University of Pretoria, described a project in which broadcast TV shows in South Africa could be used to train AI models to educate local communities about primary health care in indigenous African languages. Marivate said that a power reset needs to take place between local communities and Big Tech based in the Global North. This will allow AI to be used to protect