What Role Can Regulations Play? A South African Public Law Perspective on the Potential Response through Regulations to Constitutional Reservations about the Copyright Amendment Bill, B-13B of 2017

This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in Parliament as part of a section 79 process. In addition to its focus on the CAB, this paper identifies a set of emerging South African public law issues associated with similarly situated legislation. After a background section that places the CAB within the currently ongoing joint process between Parliament and President and outlines the three constitutional reservations to the CAB raised by the President (section one), this working paper addresses the boundaries on regulations and the potential role regulations to the CAB can play in three parts: constitutional issues (section two), new public law issues (section three), and accepted principles and parameters for drafting regulations in South Africa (section four). In section five, more specific questions and issues regarding the CAB are discussed. These include the question of whether the regulations can add new definitions of terms (e.g. to the definition of performers to exclude extras) as well as some specific issues raised with respect to the bill by informed critics, such as how the bill (particularly section 22(3)) might be read to apply retroactively and the degree to which the royalty rights in the bill (section 6A, et seq.) and reversion rights may be assigned through contract. This working paper does not give a view on how to resolve legitimate problems, but rather outlines options available to address such problems in regulations – arguing that such options do exist in regulatory drafting, both in the current period of section 79 consideration of the Bill and, assuming the Bill is enacted in at least roughly similar form, in the period between its enactment and its being brought into force. Regulations can play a potential significant and constructive role in both these periods in addressing genuine constitutional issues