Copyright Amendment Bill: EU investors reconsider SA investments on account of the Bill

9 April 2020

The European Union’s Ambassador to South Africa, Riina Kionka, has sent a letter to the Presidency advising that European copyright holders are concerned about the Copyright Amendment Bill.

In a letter sent on 20 March 2020, Kionka noted that, as a result of the legal uncertainty introduced by the Bill, the EU’s film, music and publishing industries are reconsidering their investment plans in South Africa.

This latest warning to the government about the detrimental impact of the Bill echoes the same issues that the Copyright Coalition of South Africa has addressed:

The fair use provisions in the Bill create ‘an extensive list of broadly defined and non-compensated exceptions.’ This exposes holders of copyright to exploitation of their creation without remuneration – literally the expropriation of intellectual property without compensation.

The regime set out in the Bill is incompatible with international conventions and treaties to which South Africa is a signatory.

The impact of the Bill will be devasting for South Africa’s creative community, and on foreign investment.

The South African economy is under unprecedented pressure right now. In addition to the global economic shock of the Covid-19 pandemic, the South African creative and cultural industry is feeling the brunt of the recession.

Yet despite the tough economic climate, the sector has been very patriotic. Record labels have announced numerous initiatives to bring relief to musicians; and artists are entertaining the public for free during the lockdown. Publishers have made millions of digital educational content available for free (https://www.publishsa.co.za/industry-news/covid-19).

The Copyright Amendment Bill poses an existential risk to this critical sector.

As was predicted, the Bill has resulted unnecessary diplomatic stress with no upsides, only downsides. In the United States reviewing South Africa’s eligibility for the Generalized System of Preferences. If South Africa is deemed ineligible, we could lose duty-free access to the United States’ market to the value of R34 billion.

Now the Bill also threatens investment from the European Union at a time when South Africa can least afford it.

By entertaining the legal uncertainty introduced by the Bill, we are making South Africa an even more undesirable investment destination. The results of this hostile business climate will further cripple our limping economy.

The Copyright Amendment Bill is first and foremost unconstitutional. It neither adequately protects property rights, nor did the passage of the Bill adhere to the constitutionally mandated process. This is the basis on which the President is constitutionally obliged to refer the Bill back to Parliament.

Yet while we give primacy to the constitutional grounds for referring the Bill back to Parliament, we cannot ignore the social imperative not to proceed with enacting a Bill that amounts to economic suicide.

Members of the Coalition are fully aware of the potential and the aspirations of South Africans. This is why we keep making the case to our international partners that South Africa is open for business with all its talented people. But this also requires the government to do its part in creating an investment friendly environment for business to thrive.

Many of the threats to South Africa’s economy are global, unforeseen and outside of our control. The Copyright Amendment Bill is not in this category of problems. The President can address this problem with relative ease – by referring the Bill back to Parliament for reconsideration.

Issued by Collen Dlamini, Spokesperson, Copyright Coalition of SA, 9 April 2020

[Note to Editors: The Copyright Coalition of SA comprises of:

the Independent Black Filmmakers Collective (IBFC), The Music Publishers Association of South Africa (MPASA), The Publishers Association of South Africa (PASA), Academic and Non-Fiction Authors of South Africa (ANFASA), Printing SA (PIFSA), Recording Industry of South Africa (RiSA), RiSA Audio Visual (RAV), Dramatic, Artistic, Literary Rights Organisation (DALRO), Writers Guild SA, Audio Militia, Animation SA, Trade Union of Musicians of South Africa (TUMSA), Southern African Music Rights Organisation (SAMRO), Composers, Authors and Publishers Association (CAPASO) and the Visual Arts Network of South Africa (VANSA)]