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General Laws Amendment Bill: Proposed amendment to Copyright Law
- Bill Watch 44/2010
Veritas
October 31, 2010
In the recently
gazetted General Laws Amendment Bill there is a clause to amend
the Copyright and Neighbouring Rights Act which has serious implications
for the rights of citizens to freely access the distribute legislation,
notices and other material in the Government Gazette, court judgements
and certain public registers. The amendment proposes to subject
such information to copyright protection. It is important that
such information should remain in the public domain [i.e. openly
available to everyone and not subject to copyright protection].
At present,
under section 10 of the Copyright and Neighbouring Rights Act,
certain public documents are not subject to copyright.
These documents are:
-
Official
texts of statues;
-
Official
texts of judicial proceedings and decisions (i.e. judgements);
-
Notices
and material published in the Government Gazzette,
-
The contents
of official registers.
Clause 16
of the General Laws Amendment Bill proposes to subject all these
documents to copyright.
What this
means is that copyright in all these documents will vest in the
Government. The Government, as copyright holder, will have a complete
discretion in deciding whether or not the documents should be
published and disseminated, after their initial publication in
the Gazette; and the Government will be able to dictate the terms
and conditions under which the documents are published and disseminated.
So for example:
-
If a private
organisation wants to publicise electoral laws prior to an election
it will have to get permission from the Government, in addition
to any permission it may require from the Zimbabwe Electoral
Commission;
-
If a
human rights organisation wants to disseminate a court judgment
it will have to get permission from the Minister of Justice
– who may himself have been party to the case;
-
If an
organisation wants to print and issue a statutory form enabling
women to apply for maintenance , the organisation will have
to get permission from the Government before doing so –
and it may have to pay Government a royalty for each form printed
and distributed.
The amendment
embodied in clause 16 is unconstitutional and inimical to the ideals
of good governance and respect for the rule of law.
Furthermore,
it is contrary to best practice in the southern Africa region.
Constitutionality
of Clause 16
Section 20
of the Constitution
guarantees freedom of expression, that is to say freedom to “receive
and impart ideas and information without interference”.
The proposed amendment will certainly hinder this freedom because
no one will be able to publish laws and court proceedings without
permission from the Government. The amendment will be unconstitutional,
therefore, unless it falls within one of the permissible restriction
on freedom of expression that are allowed by section 20 of the
Constitution.
Section 20
permits restrictions to be imposed:
-
In the
interests of defence, public safety, public order, the economic
interests of the State, public morality or public health. The
amendment cannot be regarded as protecting any of these interests
in so far as the State may get some royalt payments from people
who reproduce statutes and judgements. But does the Government
seriously anticipate making a profit from the publication of
legislation and judgements?
-
To protect
the reputations, rights and freedom of other persons or the
private lives of persons concerned in legal proceedings. But
those interests are already protected – and ore appropriately
protected – by legislation such as the Courts and adjucating
Authorities (Publicity Restriction) Act.
-
To maintain
the authority and independence of the courts or tribunals or
the Senate or House
of Assembly. If one assumes that laws enacted by Parliament
are generally good, and the judgements of our courts are generally
sound, the publication of laws and judgements can only enhance
the reputation of our legislative and judicial institutions.
And if bad laws are passed, or bad judgements delivered, then
they must be published if they are never to be corrected.
The amendment
cannot therefor be regarded as failling within an y of the permissible
restrictions in freedom of expression.
The amendment
may be intended to prevent the inaccurate publication of statutes
and judgments. Even if that is the reason, it is still unconstitutional:
-
Firstly,
the prevention of inaccuracy is not one of the publications
without distinction. All require permission from the Government,
and permission may be granted or withheld entirely at the Government’s
discretion, regardless of accuracy. In short, the amendment
goes far too far.
Our Supreme
Court has laid down a three-fold test to decide whether or not
a statute which limits a fundamental right such as freedom of
expression is constitutional. The court must ask itself:
-
Is the
legislative objective sufficiently important to justify limiting
the fundamental right? In this case, If the objective of the
proposed amendment is indeed to prevent the publication of inaccurate
versions of law and judgements, object is to collect revenue
for the Government the answer is: certainly not.
-
Are the
measures designed to meet the objective rationally connected
to it? Here the answer is, certainly not .To give the Government
the rights of a copyright-holder in all public documents has
little or no connection with the prevention of inaccuracy. Copyright
is a property right akin to ownership. It is an economic right.
I has no rational connection to the publication of inaccurate
information.
-
Do the
means used to achieve the objective impair the fundamental right
more than is necessary to accomplish the objective? Here the
answer is: Clearly yes. The amendment will impose a broad and
serious restriction on freedom of expression. Preventing inaccuracy
can be achieved by other means, for example by penalising the
publication of inaccurate versions of statutes and other public
documents. Indeed, existing laws may well be adequate to achieve
that purpose.
Clause
16 of General Laws Amendment Bill, therefore, will violate section
20 of the Constitution.
Clause
16 and the Rule of Law
In the Inter-party
Political Agreement of September 2008, the parties emphasised
their commitment to “reorient our attitudes towards respect
of the Constitution and …the rule of law”, and of
all political parties and individual to adhere to the principles
of the rule of law.
One of the
essential elements of the rule of law is that the law must be
readily available to the public. Clearly so: if people don’t
know what the law is, they will no be able to obey it. So statutes
and judgements which embody the law must be disseminated as widely
as possible to everyone who may need or want to read them.
If the Government
is granted copyright in the statutes and judgements, then the
Government will control how they are disseminated. NO Government
can be relied on to always respect the ideals of openness and
transparency, which are essential to good governance. And even
if the ideal government were in place, any freedom of expression
following the proposed amendment would be subject to the continuing
goodwill and capacity of the Government – which in itself
would be a negation of the rule of law.
Clause
16 and Regional Practice
The proposed
amendment will also be contrary to best practice in the southern
African region.
-
In South
Africa, section 12 (8) of the Copyright Act No. 98 of 1978 states
that no copyright subsists in official texts of a legislative,
administrative or legal nature. So statutes and judgements are
not subject to copyright.
-
In Zambia,
section 8 (2) (b) of the Copyright and Performance rights Act
1994 states that there is no copyright in Bills or Acts of Parliament.
-
In Botswana,
section 6 (2) (b) of the Copyright and Neighbouring rights Act
No. 8 of 2000 states that no copyright protection under the
Act extends to any official text of a legislative, administrative
or legal nature. So, as in South Africa, statutes and judgements
are not subject to copyright.
Conclusion
The amendment
proposed by clause 16 of the Bill will violate section 20 of the
Constitution, will be inimical to transparent government, human
rights and the rule of law, and will contrary to best practice
in southern Africa region
Veritas
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take legal responsibility for information supplied.
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