Balancing act – South Africa's constitutional court tackles copyright bill and public interest concerns

Daily Maverick

3 days ago

How deep the irony that as Trump attempted a crass humiliation of South Africa's president over the property rights of white farmers, our highest court was carefully deliberating Ramaphosa's concerns about arbitrary deprivation of property.
Last week, as US President Donald Trump was accusing President Cyril Ramaphosa of not respecting white farmers' property rights, South Africa's highest court was — at the president's request — holding a high-level debate on intellectual property rights and the constitutionality of the Copyright Amendment Bill.
It was democracy and the rule of law at work, a demonstration of care over rights and property issues.
This is one of a handful of times a president of democratic South Africa has exercised the constitutional authority to refer bills passed by Parliament to the Constitutional Court for review.
Ramaphosa first referred the bill back to Parliament in 2020, citing its potential conflict with the Constitution and international treaties and its potential for retroactive arbitrary deprivation of property, among other issues.
Parliament sent the bill back to the president's desk with significant changes in 2022, but Ramaphosa still referred it in 2024 to the country's highest court because he remained concerned about the bill's constitutionality.
The genesis of the bill dates back more than a decade. Implicated are a variety of stakeholders and multiple considerations. What has to be balanced are the interests of authors and creators of copyright work against South Africa's developmental needs, specifically as they relate to education and general access to information and knowledge.
Protection and incentives
Artists of all stripes — music, literary, performance, etc — deserve protection of their work, incentives to create and to secure revenue streams. Investors in that work also require legal protection of their stakes.
But alongside these are public interest purposes too, which might be unjustifiably prejudiced if fair exceptions to South Africa's copyright regime are not allowed.
It was no surprise then that the president's referral of the bill to the Constitutional Court attracted a large number of organisations with concerns about the content and interpretation of the bill. Blind SA, the Recording Industry of SA and the Centre for Child Law all submitted arguments to the court as amicus curia (friends of the court).
The Campaign for Freedom of Expression and the South African National Editor's Forum (Sanef) presented a joint submission about the interpretation of the bill best suited to protecting the South African media. Within the larger balancing exercise, the court was being asked to undertake, the Campaign for Freedom of Expression and Sanef asked it to weigh the varied, potentially opposing concerns of a free and healthy press.
For example, it is essential for the operation of a free press that no copyright exists in 'news of the days that are mere items of press information'. If that were not the case, press reportage, which already faces considerable financial constraints, would be prohibitive.
But news reporting that goes beyond 'mere items of press information', generating content that reflects new and considered engagement, is copyrighted and must be copyrighted — not least to protect from predatory treatment by digital platforms.
Digital platforms like Google, and social media platforms like Facebook, X (formerly Twitter), Instagram and TikTok, are becoming the primary means by which people access news. The platforms get the benefit of reproducing news reporting (and generating revenue through advertising), without incurring the costs required to produce news of quality.
These digital platforms are also able to avoid liability for the content of news articles that are accessible on their platforms. They are not treated as publishers and are immune from those responsibilities.
In this context, copyright protection for news content producers is an important, if by no means the only, route by which these issues need to be addressed.
But there are reasons to worry given the open-ended nature of exceptions permitted to copyright by the introduction of the 'fair use' regime in the Copyright Amendment Bill. The bill looks to amend South African law so that lawful use of copyright is permitted in a wider range of circumstances than was previously allowed.
Advances in digital technology
It has been explicitly promoted in the South African context as better suited to advances in digital technology.
While not exactly identical to US 'fair use' provisions, South Africa's provisions are modelled on them. And while certain stakeholders have insisted that they were not sufficiently consulted during the drafting of South Africa's Copyright Amendment Bill, big tech platform and US multinational Google very much were.
There have been explicit concerns expressed that the resulting 'fair use' provisions would leave news content published by the South African media free to be guzzled up by Big Tech's search functionality without fair remuneration.
Similarly, the 'fair use' regime has been accused of potentially enabling the free extraction of South Africa's creative content for machine learning and application in its generative AI systems.
How deep the irony that as the US president sought to engage in the crass humiliation of South Africa's president for his supposed reckless regard for the property rights of white South African farmers, South Africa's highest court was engaging in careful deliberation triggered by Ramaphosa's concerns for the arbitrary deprivation of property.
That irony is deeper still when one considers that the gate may have been opened by the emulation of US law, and where the 'property grabs' may be occasioned by US-headquartered Big Tech.
But as the Constitutional Court was not conducting itself in the style of some vicious reality TV elimination contest, few were watching.
Certainly not Trump. DM
Nicole Fritz is the Executive Director of the Campaign for Free Expression (CFE). Ella Morrison is an intern researcher at CFE.