A ruling by the Constitutional Court on 26 June 2026 has sparked renewed interest in the status of copyright legal reform efforts in South Africa.
A topic that strikes most people as obscure and technical has important daily ramifications on many of our everyday entertainment and work activities. From education to creativity, entertainment to economic development, copyright is very important, shaping how we learn and create new things and can earn a living from them.
This affects a wide range of groups of people, from educators and Wikipedia editors who want greater freedom to use copyrighted works to lower barriers for education, to people who create YouTube videos, and those who want to reuse historic and cultural video clips to better tell South African stories, and, very importantly, musicians who need stronger protections so they can be paid fairly for their work.
The amending of South Africaâs very outdated copyright law, first drafted in 1978, revised only a few times, the last being when it was lightly amended in 2002, is wildly out of date. Written for an apartheid-era South Africa that was only just about to get television, it has no adaptation to the new world the internet ushered in in the mid 1990s, let alone our artificial intelligence-driven world today.
The good news is that we have a new and updated Copyright Amendment Bill, first passed by Parliament in 2018, then again in 2024. Controversially, it has not yet been signed into law amid an inexplicably long and drawn-out review process by the Presidentâs office, slow movement on voicing, then addressing its concerns with the Bill, and despite a previous Constitutional Court ruling compelling the signing of the Bill.
Collecting society scandals
One of the groups that needs reform of copyright law the most are South African musicians. Not the collecting societies that are supposed to represent them, but individual musicians who need protection from exploitation by those collecting societies.
Music collecting societies, whose job it is to collect royalties on behalf of musicians and pass them on for musicians to earn a living, have been involved over the years in several investigations and media reports that raised concerns about royalty payments.
The Southern African Music Rights Organisation (Samro) is one of the largest of the music collecting societies and has been involved in a long string of scandals involving the nonpayment of royalties to the artists they are supposed to represent.
In 2018, it was accused of unlawfully deducting royalties from gospel musicians. In 2020, Samro was the subject of a Carte Blanche investigation, most notably for not paying royalties to the musician The Kiffness, and more recently a 2023 forensic report (that was allegedly buried by Samro), finding about R62-million in irregular royalty claims, implicating Samro executives.
In an announcement published in Bizcommunity and in an article published in Moneyweb recently, Samro urges caution after a Constitutional Court copyright ruling, uncritically discussing the collecting societyâs position on the new Bill.
Fair use
In the Moneyweb article, Samro argues that Parliament should carefully rebalance the Copyright Amendment Billâs âfair useâ provisions, surprisingly after the Constitutional Court ruled that fair use is not unconstitutional.
Samro warns that what it believes are overly broad fair use rules could undermine the ability of creators to earn income amid growing digital and AI exploitation of content.
Ironically, fair use provisions are not the problem for musicians. It is the lack of control they have over their works, and the exploitative measures of the collecting societies that stop them from earning fair remuneration.
The issue of âfair useâ adoption has been hotly debated in the public arena, both for and against.
In the case of Samro, this mention of fair use is merely a convenient distraction. An important new addition to the Copyright Amendment Bill that collecting societies such as Samro studiously and conveniently leave out is that the Bill requires all collecting societies to be regulated to ensure accountability and transparency.
It also adds important protections for musicians in the form of penalties for collecting societies should they not pay them the royalties they deserve. This is embodied in 22C (4b) of the Bill, where it states:
âA person [such as a collecting society] convicted of an offence under paragraph (a) shall be liable to a fine or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment, or if the convicted person is not a natural person, to a fine of a minimum of ten per cent of its annual turnoverâ
A 10% of annual turnover fine with a possible five-year prison sentence is a much stiffer penalty than the vagueness of the current Copyright Law and the self-policing of the collecting societies.
The fact is, the longer the new Copyright Amendment Bill is not signed into law, the more time collecting societies have to disregard the rights of, often starving, musicians.
That is no way to protect the rights of creators. It is just one of many reasons that the President should sign the Copyright Amendment Bill into law as soon as possible. DM