Last week, South Africa’s Constitutional Court convened to hear a significant case for the film and advertising industry regarding the Copyright Amendment Bill and Performers’ Protection Amendment Bill, which was passed by the National Assembly in 2024 and which President Cyril Ramaphosa referred to the court due to concerns about their constitutionality. 

The case has drawn interest from several political parties, including the Democratic Alliance (DA) and Freedom Front Plus (FF+), both of which have submitted arguments asserting the Bills’ unconstitutionality. 

The advertising industry – represented by The Marketing Association of South Africa MASA, Association for Communications Advertising ACA, Commercial Producers Association of South Africa CPA, South African Association of Stills Producers SAASP, National Association of Model Agencies NAMA and South African Performing Artists Managers Association SAPAMA – partnered with like-minded associations and stakeholders from the book publishing, film and television, and music industries – to make submissions as Amici Curiae or “friends of the court” to oppose the enactment of the Bills.

The South African Guild of Actors (SAGA) was part of Recreate Action, Third Amicus Curiae, broadly representing the pro-bill lobby. SAGA argues that this legislation is crucial for ensuring fair compensation and equitable treatment for artists.

A joint press release from the “advertising group”” issued ahead of the ConCourt proceedings highlighted concerns that the Bills were drafted without adequate economic impact assessments, leading to potential misunderstandings about the diverse needs of various creative sectors.

Key issues raised include the Bills granting the Minister of Trade, Industry and Competition the authority to dictate contract terms between agencies and performers, a provision that remains undefined. Additionally, the proposed statutory royalties for performers in audiovisual works could compel copyright owners to share profits, complicating existing contractual arrangements.

The organisations emphasised that while they support fair compensation for performers, the proposed measures could disrupt the advertising industry’s operations, making it difficult to set budgets and timelines. They warned that the legislation might deter both local and foreign clients from producing commercials in South Africa, jeopardizing jobs and livelihoods within the sector.

During the hearings, the court heard presentations from various advocates, including those representing the President. The discussions were highly technical, focusing on the narrow constitutional issues raised by the President’s referral. 

Following the presentations, the court will deliberate and is expected to issue a judgment within three to twelve months, determining whether the Bills will be signed into law or sent back to Parliament for revision.

According to Bobby Amm, Executive Officer at the CPA who attended the hearing “We hope we have done enough to convince the Court of both the unconstitutionality and irrationality of these Bills and the damage they will do not only to the commercial sector but to all South Africa’s creative industries. The stakes are very high indeed!”

*We would love to hear your thoughts. Email us at ri***@***************co.za