The Copyright Amendment Bill and the Right To Property in Section 25 of the Constitution: A Discussion in Support of Expansive Copyright Exceptions and Limitations for Educational Purposes

• Citation: (2024) IPLJ 1
• DOI: https://doi.org/10.47348/SAIPL/v12/a1
• Published date: 27 January 2025
• Pages: 1-29
• Author: Zungu, B.
• Date: 27 January 2025

https://doi.o rg/10.4734 8/SAIP L/v12/a1

THE COPYRIGHT AMENDMENT

BILL AND THE RIGHT TO

PROPERTY IN SECTION 25 OF THE

CONSTITUTION: A DISCUSSION

IN SUPPORT OF EXPANSIVE

COPYRIGHT EXCEPTIONS AND

LIMITATIONS FOR EDUCATIONAL

PURPOSES

 1

Lecturer in Comm ercial Law, University of Cape Town

ABST RACT

The relationsh ip between copyright law and t he right to education has been a p rominent

topic for several deca des. Attain ment of the right to ed ucation is inext ricably linked t o

copyright an d the materials u nder it. Therefore , the proper const ruction of copy right

rules is esse ntial. The cur rent copyrig ht regime has bee n criticised for bei ng out of

touch with the edu cational needs of lea rners and st udents in South A frica. The Sout h

African gover nment has been enga ged in copyright refor m to remedy this issue and o ther

issues raised a gainst the cur rent regime. This reform proc ess resulted i n the Copyright

Amendment Bil l B13F of 2017. In June 2020, the President add ressed a letter to Pa rliament

and expressed c oncern that va rious copyrig ht exceptions in th e Bill, including ss 12A ,

12B and 12D through wh ich the attainment of the r ight to education is promote d, run the

risk of violating t he property rig hts of copyright holders u nder s 25(1) of the Constitution.

This paper eva luates this clai m. As part of thi s evaluation, th is paper also consid ers

whether intelle ctual prope rty constit utes proper ty under s 25 of the Co nstitution. T he

latter quest ion is important be cause the current ju risprudence of the C onstitutional Cour t

on s 25 relates to the val idity of the state’s regulation of co rporeal proper ty. The claim has

been evaluate d by copyright scholars before.

This paper bu ilds on the work of other scholar s by considering the nat ure of intellectu al

propert y and its theoretical under pinnings. The conseque nce of recognising intellect ual

propert y as propert y for constitution al purpose s is that it will be prot ected again st

arbitrar y state inter ference and un lawful expropr iation under s 25 of th e Constitution .

To contextualise th is, it should be reiter ated that referen ces to intellect ual proper ty in

this paper in clude copyrights, pate nts, trademarks , designs and other tra ditional forms of

intellectu al property. Th is paper will demon strate that an i nquiry int o the constitut ionality

of copyright except ions and limitations in t he Copyright Amendment Bil l is unlikely to

    

KEYWORDS: copyr ight, SA, Constitutio n, s 25, exceptions and limit ations

    

Email: bongiwe.zungu@uct.ac.za

1

(2024) IPLJ 1

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https://doi.o rg/10.4734 8/SAIP L/v12/a1

 

The Copyr ight Act1 and its Regulations2 govern copyr ight in South Africa .

South Africa is also a pa rty to several tr eaties on copyright, notably the

Berne Convention for the Protection of Litera ry and Art istic Works (Berne

Convention).3 The Agree ment on Trade-Related Aspects of Intellect ual

Property R ights (TRIPS Ag reement) also impacts copyright-relate d matters

and is importa nt in this regard.4 These i nstrument s require South Afr ica to

pass laws to establish and regu late copyright. They also exempt some works

from the ambit of copyright protec tion.5 South Africa passe d the Copyright

Act in 1978 to comply with the Berne Convention. This Act also complies

with the TRIPS Ag reement.

The current copy right regime was subject to cr iticism that star ted

many years ago. Criticisms include the law’s failure to facilitat e access to

education and cater to people with d isabilities.6 Beiter highlights ba rriers to

accessing textbooks a nd educational materials, pa rticularly in developing

countr ies.7 These include high material c osts and scarcity, language and

relevance issues, limitat ions of digital alternatives, copy right constrai nts,

       8 This

            

the narrow exceptions in c opyright frameworks t hat prevent the expansive

reproduction and tr anslation of educational materials. C opyright exceptions

and limitations a re mandatory or dis positive provisions in copyright law that

allow for materials under copy right to be used with or without re muneration

and without a licence from the c opyright holder.9 They limit the exclusive

rights grante d to copyright holders throug h copyright law.10 In accordance

with a predeterm ined set of conditions laid down in inte rnational copyr ight

law, they are vital tools for legislators to establish a copyr ight system that is

1 Copyright Act 98 of 1978.

2 Copyright Act Reg ulations GN R2530 in GG 6252 of 22 Decem ber 1987.

3 Berne Convention for t he Protection of Literary a nd Artistic Works: Texts, Septemb er 9, 1886,

revised at Par is July 24, 1971, 1161 United Nations, Treat y Series 3. The Bern e Convention is the

primar y internationa l agreement coverin g copyright protect ion.

4 Agreement on Trade -Related Aspects of Intelle ctual Propert y Rights Apr. 15, 1994, Marrakesh

Agreement Est ablishing the World Trade Org anization, An nex 1C, 1869 U.N.T.S. 299, 33 I.L.M.

1197 (1994).

5 S Samtani ‘The dom estic effect of South Afr ica’s treaty oblig ations: The right to educat ion and

the Copyrig ht Amendment Bill’ (2020) Joint PIJI P/TLS Research Paper Se ries 1 6.

6 See for example, A Rens, A Pr abhala & DiDck Kawooya ‘Intellect ual property, educatio n and

access to kn owledge in Souther n Africa’, available at htt ps://www.iprsonlin e.org/uncta dictsd/

docs/06%2005%2031%20tralac%20amended-pdf.pdf (accessed 19 May 2021).

7 KD Beiter ‘Not the Af rican copyright pirat e is perverse, but the situ ation in which (s)he lives-

textbooks for ed ucation, extr aterritor ial human rig hts obligations , and constitut ionalizatio n”

from below” in IP l aw’ (2019) 26 Buff Hum Rts L Re v 1.

8 Ibid 4.

9 CB Ncube Science, Techn ology & Innovation and Inte llectual Property: Leve raging Openness

for Sustainable Development in Africa (202 1) 41.

10 Ibid.

2 South African Intellectual Property Law Journal (2024) 12

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