PODCAST | Copyright ruling leaves reform journey far from complete

While many have welcomed the Constitutional Court’s long-awaited judgment on the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB), South Africa’s copyright reform journey is far from over.

In this edition of Business Law Focus, host Evan Pickworth speaks to Chola Makgamathe, general manager: legal at the Southern African Music Rights Organisation (Samro), about what the landmark ruling really means for creators, businesses and the future of intellectual property law.

The court confirmed that the president’s referral of the bill was incomplete, upheld the constitutionality of the proposed fair use provision and several other copyright exceptions, but declared parts of section 12D unconstitutional because they amount to an arbitrary deprivation of property rights.

The same findings apply to the corresponding provisions of the Performers’ Protection Amendment Bill.

But does that mean the Copyright Amendment Bill is now law? Not at all.

Makgamathe explains why significant constitutional and legislative hurdles remain before the bill can proceed and why the judgment leaves a number of important policy questions unresolved.

The discussion also explores Samro’s concerns that, in its current form, the bill could fundamentally reshape how composers, authors and music publishers protect and monetise their works.

In particular, the proposed fair use framework could allow certain uses of copyrighted material without permission where users successfully rely on a fair use defence, potentially increasing royalty disputes, licensing uncertainty and costly litigation.

Ultimately, the debate goes beyond copyright law. It raises a fundamental question about whether South Africa can strike the right balance between expanding access to knowledge and safeguarding the constitutional property rights and livelihoods of creators.

While this is one of the most significant intellectual property judgments in recent years, it must be asked whether the ruling brings certainty or simply marks the beginning of the next chapter in South Africa’s copyright reform debate.