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 statutes;
official texts of judicial proceedings and decisions (i.e. judgments);
notices and material published in the Government Gazette;
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 a 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 the 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 African 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 restrictions 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 except marginally the States economic interests in so far as the State may get some royalty payments from people who reproduce statutes and judgments. But does the Government seriously anticipate making a profit from the publication of legislation and judgments?
To protect the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings. But those interests are already protected and more appropriately protected by legislation such as the Courts and Adjudicating Authorities (Publicity Restriction) Act.
To maintain the authority and independence of the courts or tribunals or the Senate or the House of Assembly. If one assumes that laws enacted by Parliament are generally good, and that the judgments of our courts are generally sound, the publication of laws and judgments can only enhance the reputation of our legislative and judicial institutions. And if bad laws are passed, or bad judgments delivered, then they must be published if they are ever to be corrected.
The amendment cannot therefore be regarded as falling within any of the permissible restrictions on 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 permissible grounds for restricting freedom of expression under section 20 of the Constitution.
Secondly, the amendment covers both accurate and inaccurate publications without distinction. All require permission from the Government, and permission may be granted or withheld entirely at the Governments 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 laws and judgments, then the answer to the question is: Well, maybe. If the 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. It 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 the 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 for the Constitution and the rule of law, and in clause 11.1 of the Agreement they agreed that it was the duty of all political parties and individuals 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 dont know what the law is, they will not be able to obey it. So statutes and judgments 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 statutes and judgments, 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 an 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 judgments are not subject to copyright.
In Zambia, section 8(2) 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 judgments 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 be contrary to best practice in the southern African region.
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Post published in: Politics