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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 makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

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