In a much-anticipated judgment delivered on June 26 the Constitutional Court provided a complex ruling on the constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill.

The decision, penned by Justice Nonkosi Zoliswa Mhlantla, marks the first time the court has undertaken an “abstract review” of the substance of a bill before its enactment into law.

The ruling serves as a partial victory for both the government and the creative industries, as the court upheld the controversial “fair use” framework, but struck down specific provisions regarding the free reproduction of educational materials.

Section ruled constitutional amid fears of open-ended nature of fair use

A central point of contention in the president’s referral was Section 12A, which proposes a shift from the current “fair dealing” system to a more flexible “fair use” model like that of the United States.

Critics, including the Copyright Coalition of South Africa (CCSA), argued that the open-ended nature of fair use, which allows for the use of copyrighted works for purposes “such as” research, parody, and education, would create legal uncertainty and infringe on property rights.

However, the court found Section 12A to be constitutional. Justice Mhlantla noted that the provision is not “fatally vague” because it includes a four-factor test to determine fairness, such as the nature of the work and the effect of the use on the potential market. The court ruled that this framework provides enough guidance for courts to apply it reasonably in the future.

The most significant blow to the bills was the court’s finding that Sections 12D (1 through 5) are unconstitutional. These sections sought to allow educational institutions and individuals to reproduce whole textbooks or recordings for academic activities, particularly if a license was not available on “reasonable terms” or if the price was deemed unreasonable.

The majority judgment held that these provisions constituted an arbitrary deprivation of property. The court argued that the bill failed to define “commercial purposes” or “educational institutions” with enough precision, potentially allowing wealthy private institutions to copy textbooks for free. Justice Mhlantla emphasised that while the right to education is paramount, the burden of funding it should fall on the state rather than individual authors. By allowing the wholesale copying of books, the bill went “further than necessary” and interfered with the normal economic exploitation of creative works.

Court declines to rule on certain sections

The court declined to rule on the constitutionality of Sections 6A, 7A, and 8A, which deal with equitable remuneration and royalties for authors and performers. The president had raised concerns that these sections might operate retrospectively, depriving current owners of their property.

However, the court found the referral of these sections “incompetent”. Because parliament had already deleted the specific retrospective subsections to address the president’s original reservations, the procedural requirements for a referral under Section 79 of the Constitution were no longer met. The court clarified that the president cannot raise entirely new objections in a referral to the court that were not first presented to Parliament for reconsideration.

Justice Steven Majiedt issued a strongly worded dissent regarding the educational exceptions. He disagreed that Sections 12D(1)-(5) were unconstitutional, arguing that the majority was “peering into the future” without concrete evidence of how the law would harm authors. Majiedt stressed that in a deeply unequal society, copyright should not serve as a barrier to learning materials for the poor. He maintained that the bill’s internal safeguards were sufficient to prevent abuse and that the right to education should have carried more weight in the court’s.

Parliament need to address defects

Because the court found certain sections of the bills unconstitutional, they cannot be signed into law by the president in their current form. Parliament will now need to address the defects identified in Section 12D.

While the ruling provides some clarity, the court was careful to note that this “abstract review” does not grant the bills a permanent “seal of constitutionality”. Once the bills are eventually enacted, members of the public and creative organisations will still have the right to bring substantive constitutional challenges based on the actual, practical impact of the laws as they are applied.

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