On October 10, 2024, the President of the Republic of South Africa initiated an ex parte application in the Constitutional Court, challenging proposed amendments to the nation's copyright legislation. Specifically, the application concerns proposed amendments to the Copyright Act and the Performers’ Protection Act. This legal action questions the constitutionality of specific sections within the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB). This significant legal challenge, identified as case CCT 306/24 [2026] ZACC 26, aims to scrutinize the proposed changes before they are enacted into law, ensuring their alignment with the Constitution. The Constitutional Court is expected to deliver its judgment on the matter on June 26, 2026, a date keenly awaited by stakeholders across various industries.
Bills' Legislative Journey
The legislative process for the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB) has been extensive. Both legislative proposals were initially published for public comment on July 27, 2015, inviting input from citizens and interested parties. Following this initial public engagement, the Bills were subsequently introduced in the National Assembly on May 16, 2017, marking a formal step in their parliamentary journey. They successfully passed through Parliament in March 2019, signifying legislative approval at that stage.
However, the President referred the Bills back to Parliament for reconsideration in June 2020, citing various constitutional concerns that required further legislative attention. The CAB primarily aims to introduce further limitations and exceptions concerning the reproduction of copyright works, a move intended to balance creator rights with public access. Additionally, it includes provisions specifically designed to enhance access to copyright works for persons with disabilities, addressing a critical need for inclusivity. Concurrently, the PPAB seeks to broaden the existing restrictions on the use of artistic performances, intending to strengthen performer rights and ensure fair compensation and control over their creative output. These amendments are designed to modernize South Africa's intellectual property framework, bringing it in line with international standards and digital age realities, while also protecting the interests of creators and the public.
President's Constitutional Concerns
The President of the Republic of South Africa raised several constitutional reservations regarding the proposed copyright legislation, prompting the current legal challenge. Among these concerns were procedural issues related to the correct tagging of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill, which is key for determining the parliamentary process they must follow. Alongside this, questions were raised about the adequacy of the public participation process undertaken during the Bills' development, emphasizing the importance of inclusive and thorough public consultation in law-making. The President also noted that specific amendments to section 12A, which pertains to fair use provisions, had not been subjected to public comment, potentially bypassing a vital step in democratic legislative development. This lack of public input on such a significant section was a key point of contention.
A significant concern articulated by the President involved the delegation of legislative power. The President questioned the extent to which legislative authority was being conferred upon the Minister of Trade and Industry, an issue of separation of powers and democratic accountability. This concern was specifically detailed in a letter asserting that sections 6A(7)(b), 7A(7)(b), and 8A(5)(b) of the Bills unconstitutionally granted substantial discretionary legislative powers to the Minister. Such broad delegation, without clear parliamentary oversight, was seen as potentially undermining the legislative role of Parliament itself. These points form a core part of the constitutional challenge brought before the Constitutional Court, seeking to clarify the boundaries of executive authority in law-making.
Legal Basis for Challenge
The President of the Republic of South Africa's legal challenge includes specific reservations concerning sections 6A(7), 7A(7), and 8A(5) of the Copyright Amendment Bill. These sections are argued to potentially constitute an arbitrary and retrospective deprivation of property, which would directly conflict with constitutional protections for property rights. The challenge asserts that such provisions could undermine established property rights without due process, thereby impacting creators and rights holders who rely on copyright for their livelihoods. The potential for retrospective application of these provisions further exacerbates concerns about legal certainty and fairness.
Further reservations were also made regarding sections 12A-D, 19B, and 19C of the Bill. The President's application contends that these specific clauses may also lead to an arbitrary deprivation of property, similar to the concerns raised about other sections. Additionally, the President expressed concerns that these sections risk violating the constitutional right to freedom of trade, occupation, and profession, potentially impacting creators, businesses, and various industries operating within the copyright framework. This includes authors, artists, musicians, publishers, and other creative professionals whose ability to earn a living and conduct their trade could be unduly restricted or altered by the proposed amendments. The challenge seeks to ensure the amendments align with fundamental constitutional protections, safeguarding both individual rights and the broader economic landscape impacted by copyright law. The final judgment from the Constitutional Court is anticipated to provide clarity on these complex constitutional questions.
