What Happened at the Constitutional Court?

Over the course of the two days, these were main points of argument:

• Whether copyright can be considered property in terms of Section 25 of the Constitution,
• Whether the Bill might lead to arbitrary deprivation of property because of fair use,
• Whether the Bill would have Retrospective effect (i.e. whether the requirements would be applicable to old contracts),
• Whether the Bill breaches our international treatise obligations, especially the Berne Convention, which covers a test for whether a copyright use requires a licence and payment

Various amici curiae (‘friends of the court’) made submissions, and initially only very limited opportunity to present orally was granted by the Court, and those accepted parties were arguing in favour of Fair Use. However, it became clear that the judges were not satisfied with arguments presented by the fair use advocates, and the other amici were given an opportunity to speak.

A Lack of Evidence for Those Speaking in Favor of “Fair Use”

The scope of the President’s referral was questioned, as well as the need for evidence from either side arguing for and against the passing of the Bill. It became apparent to the MPA SA that those against fair use (see article breakdown for explanation on “fair use”) were the only side to have presented proper evidence. The advocate for Adams & Adams pointed to compelling evidence that shows how the Bill falls foul of our international treatise obligations, as well as the terrible impact the bill would have on book publishers, showing that this had not been properly considered by parliament.

The fact that there was never a proper SEIAS done (Socio-economic Impact Assessment) speaks to the irrationality of the process leading to the final Bill, but the Constitutional Court judges were concerned that this might not be considered in the scope of the hearing. However, there were compelling arguments that it clearly should be.

“It’s important to remember that copyright laws must balance the rights and requirements of creators & rights holders on the one side, and users on the other. Fair Use in the bill is extremely broad, which means for example that if a user doesn’t licence a song, they might too easily just say ‘this was fair use’, and the creators and rights holders have to take legal action to prove them wrong. There is no history in the courts for fair use cases, and the composers and rights holders will be at a serious disadvantage especially given the power and resources of Big Tech. The MPA SA strongly feels that the Bill favours users far too much, even though the objective of the bill was and is to address the plight of creators. The President specifically said in his referral that there is no evidence that fair use is required, and therefore no reason to add it. The MPA SA believes that evidence for the inclusion of fair use was not sufficiently provided to the court.” – MPA SA

What’s Next for the Future of our Industry?

At the end of the two days, judgement was reserved by the Court, meaning that we now await an outcome.

The following options exist for the court for the outcome:

1. That the Bill is unconstitutional and must be returned to Parliament. It was shown that even if one provision is unconstitutional, then the whole bill must be returned.
2. That all provisions in the Bill are constitutional. Then the President will need to sign the Bill into law and there will be a compliance period, and further opportunity to challenge the Bill again through the High Court or by Parliamentary majority. But the challenge cannot be on the same grounds as what was already tested by the Constitutional Court.
3. That there is no decision due to lack of evidence. The President would then have to sign the bill into law. It can then be challenged again in the High Court, and on any reasonable grounds.

The MPA SA believes that the evidence pointing to the Bill being returned to Parliament was convincing, and that the Bill should be corrected to safeguard composers and rights holders against unfair exploitation.