Comparison of the versions of the Copyright Amendment Bill, 2019–2022
The link below will direct you to a study which compares the versions of the Copyright Amendment Bill from the “2019 B-Bill” adopted by Parliament in May 2019 to the “2022 D-Bill” approved by the Portfolio Committee for Trade, Industry and Competition in June 2022 for adoption by the National Assembly. The study finds that many of the provisions in the “2022 D-Bill”, especially the copyright exceptions and provisions for technological protection measures, ended up being substantially the same as the provisions in the “2019 B-Bill”.
Versions of the Copyright Amendment Bill
This research examines the history of changes to the Copyright Amendment Bill, B13 of 2017 after Parliament passed the “2019 B-Bill” in March 2019:
This historical background and context are given in more details on pages 4–7 of the document in the link above. The document then continues with a detailed analysis and comparison of changes to the Bill and a conclusion on the implications of these changes.
• June 2020: The President referred the “2019 B-Bill” back to the National Assembly for concerns about its constitutionality and treaty compliance, especially in relation to its ‘fair use’ clause and the copyright exceptions.
• June–August 2021: More public consultations followed.
• December 2021: The Portfolio Committee made certain proposals for changes (the “2021 Proposals”) and invited public comments.
• May 2022: The Portfolio Committee discussed the “2021 Proposals” and comments. The Portfolio Committee retracted many of those proposals, notably those relating to the Bill’s many copyright exceptions and the provisions for technological protection measures.
• June 2022: The Portfolio Committee approved the “2022 D-Bill” for adoption by the National Assembly. The decision was taken with only the majority party voting in favour. Opposition parties severely criticised the process as reported in the minority views of the Portfolio Committee report on the “2022 D-Bill”.
• 14 August 2022: The 2022 National Assembly winter-recess ends. The “2022 D-Bill” is expected to be debated shortly thereafter.
Focus on copyright exceptions
Of all these changes, copyright exceptions are certainly of most interest to publishers. Following are some outcomes of the investigation relating to copyright exceptions.
The President’s referral to Parliament
The copyright exceptions were one of the primary reasons for the President’s referral-back of the Bill. The President’s concerns specifically raised the absence of sufficient consultation on the copyright exceptions ‘fair use’ clause, the constitutionality of the copyright exceptions, and the Bill’s compliance with international treaties. He asked that, “If these exceptions and limitations run the risk of constitutional challenges, they require reconsideration by the National Assembly.”
The findings of the comparison show that:
• 48 substantive changes were made to 18 new sections in the “2019 B-Bill” that were under consideration after the President’s referral-back, to arrive at the “2022 D-Bill”.
• Only 10 of these substantive changes related to the copyright exceptions in six new sections.
• 2 of the 10 substantive changes to the copyright exceptions expanded the scope of the exceptions.
• Most of the substantive changes proposed in the “2021 Proposals” in relation to the copyright exceptions were retracted in May 2022.
• In response to the specific copyright exceptions explicitly mentioned by the President, there were only 6 substantive changes that did not expand the exceptions.
• The ‘fair use’ clause, which must be the most controversial provision in the whole Bill and was explicitly mentioned by the President, had only one inconsequential change to a proviso. Sweeping changes in the “2021 Proposals” were retracted, and the resulting provision in “2022 D-Bill” remains nearly identical to the “2019 B-Bill”.
• The few substantive changes to the copyright exceptions, that were explicitly raised by the President, and to the provisions for technological protection measures, stand in sharp contrast with the acceptance of most of the other changes in the “2021 Proposals”.
No independent legal opinion or proper impact assessment
Inasmuch as the President’s referral-back may have required legal opinion on constitutionality and treaty-compliance, the Portfolio Committee and the Department of Trade, Industry and Competition did not obtain independent legal opinion from experts in copyright law or constitutional law. Views on these points only came from stakeholder submissions. The absence of prior impact assessment was confirmed by other research carried out by ANFASA, DALRO and PASA.
The findings of this research confirm the perception amongst many stakeholders that the provisions of the “2019 B-Bill” relating to copyright exceptions and, to a slightly lesser extent, those relating to technological protection measures, remain substantially the same in the “2022 D-Bill”, notwithstanding the President’s reservations.