The Freedom Front Plus (VF Plus) has, for an entire decade, warned against the expropriatory features of the Copyright Amendment Bill that the Constitutional Court found unconstitutional in June this year.
The Freedom Front Plus is the only political party that challenged the constitutionality of these provisions in the Bill before the Constitutional Court.
And now, South Africa’s intellectual property policy was specifically cited by the United States (US) government, in its letter to President Cyril Ramaphosa, as a reason for removing South Africa as a beneficiary from the US’s AGOA programme.
The objections that South Africa’s intellectual property policy does not comply with the minimum requirements of AGOA mainly centred on the Bill’s “fair use” provision and its other extensive exceptions to copyright, as well as other provisions that conflict with international treaties and the lack of legal measures to combat online copyright infringement.<br/>
Over the years, South Africa’s trade partners, particularly the US and the European Union, have raised their concerns about the Bill with the South African government, but to no avail. It is evident in the US government’s letter to South Africa that it has run out of patience.<br/>
From the outset, the Freedom Front Plus pointed out that a thorough socio-economic impact assessment of the legislation had not been conducted. Such an assessment is a prerequisite for any new legislation and regulations in terms of the Cabinet’s own rules, with the aim of determining whether there could be any socio-economic harm.<br/>
The Freedom Front Plus informed the Constitutional Court of the absence of the impact assessment, whereafter the Court held that the lack of such a study could indeed be an indication of unconstitutionality. The Court, however, did not take it into account in this case because it supposedly fell outside the President’s referral of the Bill to the Constitutional Court.<br/>
The Freedom Front Plus was also able to show the Constitutional Court that the “fair use” provision and the copyright exceptions originated with a single group of academics linked to an international group that advocates for the dilution of copyright. <br/>
The party pointed out that it is striking that these controversial provisions remained essentially unchanged throughout the entire legislative process, despite fierce opposition from artists and copyright-based enterprises that submitted very strong and sensible arguments.
In addition, the Constitutional Court assumed that the introduction of the copyright exceptions was the policy behind the Bill.
The Freedom Front Plus believes that the Bill does not aim to protect the interests of creators of original work and rightful owners, but that its actual objective is yet another form of expropriation without compensation. This is the case, because the “fair use” principle would have been a new introduction into South African law with no legal content or clear boundaries.
It would have resulted in legal uncertainty, allowing third parties to randomly use authors’ creations without permission, which could only be remedied and developed through costly and laborious litigation.
The Freedom Front Plus, therefore, also argued in the Constitutional Court that the situation would result in the courts effectively taking over Parliament’s legislative functions by having to flesh out a vague Bill piece by piece through court judgments. This would constitute a material violation of the constitutional principle of the separation of powers.<br/>
Over the years, the party has also warned that this legal uncertainty would lead to abuses that would greatly damage industries based on copyright that comprise a significant portion of the country’s economy.<br/>
After a decade of uncertainty created by the Bill, it has now also caused serious economic damage seeing as it was cited as one of the reasons for the termination of South Africa’s AGOA benefits.<br/>
The Bill should rather be replaced with a Bill that modernises copyright by deepening the protection of copyright in line with international treaties and new technological developments, such as artificial intelligence in the form of large language models and other expected innovations.
The Freedom Front Plus, therefore, remains committed to opposing this Bill, in its entirety, in Parliament.
