Copyright Amendment Bill; Performers' Protection Amendment Bill: finalisation

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Meeting report

ECONOMIC AFFAIRS SELECT COMMITTEE
13 March 2002
COPYRIGHT AMENDMENT BILL; PERFORMERS' PROTECTION AMENDMENT BILL: FINALISATION

Chairperson: Mr Moosa (ANC)

Document distributed:
National Film and Video Foundation Submission (Appendix)

Relevant Documents:
Copyright Act, No. 98 of 1978
Copyright Amendent Bill [B73B-2001]
Performers' Protection Act, No. 11 of 1967
Performers' Protection Amendment Bill [B74B-2001]
 
SUMMARY
The Department of Trade and Industry's legal advisor provided follow-up commentary on whether further textual clarifications were necessary in the Copyright Amendment Bill and the Performers' Protection Amendment Bill, particularly concerning the rights of successors in interest. The Committee reached a consensus that the issue must be treated consistently within the Bills, and that it was preferable to deal without it specifically rather than relying on common law interpretations of legislative intent. The Committee moved to approve both Bills, without amendments as to language concerning successors, and without the additional amendment of Section 9A(1)(c) of the principal Copyright Act, as discussed at the March 12 Committee meeting, to ensure performer access to the Copyright Tribunal.

MINUTES
In response to a question from Mr. Conroy (NNP), with a brief synopsis by Department legal advisor, Adv. Strydom discussed amended Section 5(4)(a) of the Performers' Protection Act, concerning royalty sharing.

The advisor stated that he had reviewed the principal acts affected by the amendment Bills, and that "successors in interest" were not extensively dealt with in the existing legislation. However, after a discussion earlier in the day with the state law advisor, he was of the opinion that it was not necessary to codify extant common law rights with specific legislative references, and that therefore the reference in the amendment of Section 5(4)(a) of the principal act by the Performers' Protection Amendment Bill ("the PPAB") was surplus. Further, in his opinion no further amendment of the PPAB was necessary.

However, he noted that since the amendment Bills were complementary, and designed to fully protect performers' rights, it might be desirable to add the PPAB language concerning "successor" to the Copyright Amendment Bill order to ensure consistency and avoid later interpretive issues. The Chair and Adv. Lever (DP) agreed with this analysis, with Lever again raising the issue as to whose successors were intended to be protected by the PPAB language, with the indication being that the protection is to be limited to performers.

The Chair said that, in the interest of consistency, the language concerning "successors" must either be deleted or inserted in both amendment Bills. Department official Mr Netshistenche preferred that the language be deleted, and that the common law interpretation be relied upon, but at Adv. Lever's urging the Committee reached a consensus that it was preferable, in the interest of protecting performers, and in order to remove ambiguity and avoid later interpretive controversies as to legislative intent, to include specific references to "successors", where appropriate, throughout both amendment Bills. The Department legal advisor undertook making the necessary textual changes, and would circulate a revised version of the Bills for the Committee's confirmatory approval.

With reference to these amendments, and that in the Copyright Amendment Bill concerning performers' access, under Section 9A(1)(c) of the principal act, to the Copyright Tribunal (as discussed by the Committee on March 12), the Committee officially approved both Bills, and reported them out, with no mention having been made of the late submission by the National Film and Video Foundation asking that such action be delayed.

Before adjournment the Chair confirmed the list of Committee members who were to speak on the Bills in the chamber debate, and also noted that the March 20 meeting with the Department Minister concerning the budget would be jointly conducted with the Portfolio Committee. He also asked members to solicit provincial finance MEC's for input in anticipation of these budget discussions.

Appendix
Mr. Mohseen Moosa
Chairperson: Select Committee on Economic & Foreign Affairs
National Council of Provinces

Dear Mr. Moosa

National Film & Video Foundation Submission on Copyright and Performers' Protection Amendment Bills

It has come to our attention that the National Assembly of Parliament has recently approved final amendments to the Copyright Amendment Bill, 2001 (“the Copyright Bill�) and the Performers' Protection Amendment Bill, 2001 (“the Performers' Bill�). The National Film & Video Foundation believes that the amendments to the Performers Bill will have serious implications for the South African film and television industry, in so far as they seemingly affect audio-visual performers as well as musicians under the so-called 'needletime' legislation. We are presently coordinating a consultation process with affected stakeholders within the industry, including film and television producers, broadcasters and performers, and would like to bring to your attention some of our preliminary concerns with the proposed amendments to the Performers' Bill. We also attach, for your reference, correspondence sent to the Parliamentary Portfolio Committee on Trade and Industry, which sets out in greater detail, our understanding of the potential implications of the legislation for the film and television industry.

Whilst the Portfolio Committee approved additional amendments to the Copyright and Performers' Bills, these related primarily to issues of international reciprocity, which, in our view, do not resolve certain more fundamental issues which affect our sector domestically.

The National Film and Video Foundation (NFVF) is a statutory body established in terms of the NFVF Act, Act No. 73 of 1997 (“the Act�), and has been established by Parliament, inter alia, to develop and promote the South African film and television industry. A further objective contained in section 3 of the Act is to address historical imbalances in the infrastructure and distribution of skills and resources in the industry.  We have also been specifically mandated to liaise with the Independent Communications Authority of South Africa (ICASA) in order to encourage the use of local content programmed on television, as well as with the Department of Trade and Industry in order to establish a separate legal entity for the purpose of investing in film and video projects.  The scope and extent of our statutory objectives and functions are more fully set out in sections 3 and 4 of the NFVF Act, as well as section 27 of the Cultural Laws Amendment Act (No. 36 of 2001).

The NFVF strongly supports the objectives stated in the Explanatory Memorandum attached to the Copyright and Performers' Bills in so far as they relate to the important aims of redressing historical imbalances in the relevant industries and, in particular, the need to ensure more equitable terms of trade through collective representation and bargaining.  While we cannot comment on the music recording industry, we believe that the proposed changes to our intellectual property law regime in the audiovisual context are not necessarily the best means of achieving these important objectives or, at the very least, need to be more thoroughly investigated before such far-reaching legislative changes are enacted.

To date, consultation and publicity around the Performers' Bill and the Copyright Bill have been concentrated on the implications that the amendments will have for the music and radio broadcast industry. However, the impact on the local film and television industry has not been clearly articulated. More importantly, in our view, affected stakeholders - particularly film and television producers and broadcasters - have not been adequately consulted on legislation that could have far-reaching effects on the industry, including a possible disincentive to invest in the production of local content.

The National Film and Video Foundation is organising a consultative session, scheduled for Friday 15th March, with stakeholders in the sector, including Performing Arts Workers Equity (the representative body of South African performing artists), the Independent Producers Organisation, the National Association of Broadcasters, and the Consortium of African Film and Television Practitioners. We would like to formally request that the Select Committee allow the outcomes of this consultation to feed into the legislative process. If required, oral submissions can be made in addition to the written feedback, which will be provided no later than Monday 18th March 2002.

Please do not hesitate to contact my office if you wish to discuss this matter further.

We look forward to hearing from you.

Yours sincerely

Eddie Mbalo
Chief Executive Officer
National film and video foundation

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