On Wednesday, the Freedom Front Plus (VF Plus) was one of only two political parties in the Constitutional Court that presented arguments against the Copyright Amendment Bill, which allows for the expropriation of copyright without compensation.
President Cyril Ramaphosa referred the Amendment Bill to the Constitutional Court under section 79 of the Constitution to assess its constitutionality.
Senior Adv LG Bredenkamp and Adv Anton Alberts represented the Freedom Front Plus, arguing that the Bill enables expropriation without compensation by introducing an open-ended exception rule. This rule would allow anyone to use authors’ and copyright holders’ creations without permission or payment.
The Freedom Front Plus views the replacement of the current closed list of exceptions with this open-ended rule as reckless. It would enable large companies, particularly internet-based enterprises that aggregate content to attract online traffic, to exploit the uncertainty surrounding these exceptions to appropriate creators’ works without compensation.
If an author wishes to challenge such misuse of their content, they will have to approach the relevant court and incur significant costs – an expense most creators cannot afford. And even if they can afford it, there is no guarantee the court will rule in their favour. Large corporations with deep pockets can exploit this legal uncertainty, prolonging lawsuits until the opposing party gives up, thereby gaining control over copyright without payment.
This effectively undermines the certainty authors had under the closed list of exceptions, significantly diluting copyright and leading to its deprivation without consent or compensation.
This exploitation’s destructive impact on the copyright-dependent sector of the economy would be catastrophic. It would severely harm every writer, artist, musician, filmmaker, publisher, broadcaster and any business in the copyright value chain. The damage would cripple individuals and companies, from independent creators to large firms selling copyright-protected products.
The Copyright Amendment Bill would also have far-reaching international consequences, turning South Africa into a safe haven for those seeking to exploit foreign creations with impunity. For instance, it would be possible to upload films made abroad onto online platforms in South Africa for free viewing without notifying or paying the owner.
In this way, South Africa could surpass even China in the blatant theft of copyright.
Seeing as South Africa is increasingly regarded as an international pariah, implementing this Amendment Bill would be one of the final nails in the coffin of the country’s economy.
Major companies currently active in South Africa’s film, television, information technology and other copyright-based industries would immediately withdraw from the country. Several companies have already indicated as much to the Freedom Front Plus.
The Freedom Front Plus also objected to the government and Parliament’s failure to conduct a socio-economic impact study to assess the Bill’s effect on the economy. By neglecting this, the government has violated its own internal rules, which mandate such a study.
Furthermore, Cabinet and Parliament cannot determine whether a bill is rational without being informed of its impact on the broader South African community and economy. In this regard, the Freedom Front Plus’s legal team argued that conducting a socio-economic impact study is integral to determining a bill’s rationality. If no such study is done, the bill must be deemed irrational and unconstitutional.
The Constitutional Court’s bench received the Freedom Front Plus’s legal arguments favourably and the ruling is pending.
The Freedom Front Plus’s participation in this court case is part of the party’s fight against all forms of expropriation without compensation and its commitment to protecting property rights.
;
