Intellectual Property Laws Amendment Bill: public hearings; Minister on National Consumer Commissioner appointment

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Trade, Industry and Competition

18 October 2010
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

Submissions on the Intellectual Property Laws Amendment Bill were heard from the Legal Resources Centre, the Dramatic, Artistic and Literary Rights Organisation (DALRO), the South African Music Performance Rights Association (SAMPRA) together with the the Recording Industry of South Africa (RISA), the South African Music Rights Organisations (SAMRO), the Publishers Association of South Africa (PASA), the South African Screen Federation (SASFED), the South African Federation Against Copy Right (SAFACT) and Dr Owen Dean, an expert in copyright and trademark law. All agreed that the Bill was ill conceived, fundamentally flawed, and poorly executed. It would also be in contravention of South Africa’s international obligations. Several organisations had concerns about the Bill’s proposed amendments to Section 9 of the Act would materially prejudice the rights of copyright holders. Most suggested that there was a need for a comprehensive form of protection of traditional works and traditional knowledge under a sui generis legislation. In doing so, DTI should consult the relevant stakeholders and experts in the field. The process should further take into consideration appropriate global initiatives such as the World Intellectual Property Organisation (WIPO) discussions. It was also suggested that the Bill had been wrongly tagged. It should have been tagged as a Section 76 Bill because its provisions fell within the functional areas of indigenous law, customary law and traditional leadership of Schedule 4 of the Constitution.

The Minister of Trade and Industry briefed the Committee on the appointment of the Commissioner for the National Consumer Commission. In terms of the Act, the DTI was required to consult with Parliament. The Department had issued an advertisement for the position and had received 54 responses. The selection panel which consisted of the Director General, Chairperson of the National Consumer Tribunal, a Deputy Director General and the Department of Trade and Industry Human Resource staff went through the applications and concluded that none of the candidates met the criteria. The Minister of Public Service and Administration who was in the process of re-deploying Ms Mamodupi Mohlaha consulted with DTI and the selection committee had no objection to her candidature. The proposal would be taken to Cabinet and the Minister offered the proposition for consideration by the Committee. Despite the Democratic Alliance concerns that she had been fired as Director General of the Department of Communications, the rest of the Committee welcomed the appointment.


Meeting report

Chairperson's Introductory Remarks
The Chairperson said that it was not so often that a Bill attracted so much interest as the Intellectual Property Laws Amendment Bill had. The Bill was more complex than was first apparent therefore Committee was eager to hear and engage with the submissions. 

Private Submission by Owen Dean
Dr Owen Dean, an expert in
copyright and trademark law, said that the Intellectual Property Laws Amendment Bill as introduced was a bad law. It was ill conceived, fundamentally flawed, and poorly executed. This was because for the major part, works of traditional knowledge of the nature that the Bill sought to protect were presently in the public domain, and in some cases had been so for many years. The Bill seemed to extract these works from the public domain and to grant them hitherto absent protection. In other words the process inherent inintellectual property laws was reversed in what was contemplated to be achieved in the Bill. It was obvious that principles of law applicable to a particular process were not suitable for a process which moved in precisely the opposite direction.

The Committee was informed that other problems arose from clothing traditional knowledge as intellectual property and seeking to protect it as a species of intellectual property. This would cause South Africa to encounter serious and unacceptable problems in the context of international treaty obligations. South Africa was a signatory of and was bound by the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The Bill did not purport to grant nor did it grant any protection to traditional works of the nationals of any member countries of the TRIPS agreement. Consequently by enacting the Bill into law South Africa would breach the TRIPS agreement and this could give rise to sanctions for the breach of obligations.

Dr Dean’s submission also covered other aspects of the Intellectual Property Laws Amendment Bill such as its relation to copyright, the proposed fund, the database, reciprocity, performers protection and traditional works as the property of the community. Dr Dean concluded by stating that the Bill needed to be withdrawn and a fresh start made with legislative provisions to protect traditional knowledge. Such legislative provisions needed to constitute a sui generis or customised legislation outside the ambit of the intellectual property statutes providing protection for traditional knowledge as a separate and distinct species of property. The approach of protecting traditional knowledge in sui generis legislation was the international norm and it was also the approach being adopted by the World Intellectual Property Organisation (WIPO) in preparing a model law. It was neither possible nor viable to protect the kind of material contemplated in the present Bill in the existing intellectual statutes. Attempting to do so was tantamount to trying to drive a square peg into a round hole.

Discussion
Mr T Harris (DA) asked to what extent the proposed legislation was in conflict with international law.

Dr Dean replied that the problem was the legislation was not aligned to international law and therefore did not provide for international protection. Legislation needed to protect both international and national traditional works.

Mr Harris asked if it was possible to protect traditional knowledge using other forms of legislation than the legislation that had been proposed.

Dr Dean replied that there was a view among some sections that existing intellectual property statutes provided very adequate protection without amendments. The Copyright Act, Design Act and other Acts did not exclude the protection of traditional knowledge.

Mr Harris asked if the traditional knowledge database would be a sub database to the current intellectual property data.

Dr Dean replied that the proposal to have the database controlled by CIPRO would create problems as there were a lot of inadequacies at CIPRO in dealing with existing applications.

Mr Harris asked what areas of the proposed legislation would be in conflict with the Constitution as these fears had previously been expressed by some sectors.

Dr Dean replied that among the issues in conflict with the Constitution was the issue of appropriation. On one hand the Bill stated that the community had rights over its traditional knowledge but on the other hand the Bill stated that the rights would be controlled by the fund. There was no compensation for the appropriation of the community’s indigenous knowledge

Ms H Line (ANC) asked how the Committee should go about dealing with current legislation if a situation arose where there was no option to develop another Bill.

Dr Dean replied that the Bill could not be patched up because it was fundamentally flawed.

Ms F Hajaig (ANC) asked what the best practice was in other countries with regards to traditional knowledge.

Dr Dean replied that other countries were not dealing with traditional knowledge very well as the whole world was grappling with how to protect traditional knowledge. WIPO was looking at a draft model law. South Africa was jumping the gun and there was nothing wrong with this but things needed to be done correctly.

Mr B Radebe (ANC) asked how much traditional work had been protected in the past by the current legislation.

 Dr Dean replied that traditional works were protected by about 90% to 95%. What was needed was to ensure that the remaining 5% to 10% was also protected.

Mr Harris asked how the fifty year time frame proposed in the new legislation would cater for traditional knowledge prior to that period.

Dr Dean replied that it was a fallacy to believe that any protection under the Bill would be in perpetuity.

Legal Resources Centre (LRC) Submission
Mr Henk Smith raised concerns about the definition of community as contained in the Bill which according to Mr Smith was not adequate. The Bill defined community as any people living within the borders of the Republic, or which historically lived in the geographic area located within the borders of the Republic. Community was thus defined spatially and in terms of geographical boundaries but, in reality, communities did not define themselves in this manner.

The
re were also concerns about the protection and commercialisation of traditional knowledge in South Africa using the intellectual property system. The current intellectual property system allowed individuals to protect their inventions and intellectual property rights, but did not allow communities to collectively protect their knowledge in all areas. In those areas where collective intellectual property registration was possible, communities were not exercising their rights. Traditional knowledge was not generally protected using the intellectual property system.

The LRC proposed that among the most promising approaches was the possibility of designing regimes based on customary law, a misappropriation regime, and disclosure of origin. Protection of traditional knowledge using customary law
would only be effective with the recognition of the authority of customary law for traditional protection issues at international level. Further, there was a need to ensure that customary law and rights were recognised in practice by a formal legal system and could not be extinguished or overruled, even when there was a conflict between them, despite customary law being written down or not. The Committee was also told that the Intellectual Property Laws Amendment Bill was wrongly tagged and should have been tagged as a Section 76 because its provisions in substantial measure fell within the functional areas of indigenous law, customary law and traditional leadership.

The submission concluded with a lengthy explanation of why the right of particularly rural communities to participate in the legislative process pertaining to this Bill cannot be circumscribed by considerations of urgency. The failure to comply with manner and form provisions, including those requiring the facilitation of public involvement in the legislative process, was a constitutional invalidity of the legislation on the basis of the flawed process. 

Discussion
Mr N Gcwabaza (ANC) asked if the premise of sui generis was to protect traditional knowledge which could not be protected by intellectual property law.

Mr Smith replied that traditional knowledge was much more than intellectual property as it embraced broader categories. Traditional knowledge embraced both embodied and embedded forms of knowledge.

Mr Gcwabaza asked what needed to be done to protect traditional knowledge.

Mr Smith replied that the best way to protect traditional knowledge was through the legal system which was associated with the knowledge system that this was customary law. 

Mr Gcwabaza asked if the emphasis on customary law and traditional leadership was meant to suggest that central government had no role to play.

Mr Smith replied that the protection of traditional knowledge must happen through customary law which should be strengthened with minimal support.

Mr X Mabaso (ANC) asked if the Bill would advance the interest of the people if it stood alone or would do so better if it was incorporated into existing legislation.

Mr Smith replied that customary law provided special protection and therefore protected the interest of the people.

Mr Radebe asked when consultation would be deemed sufficient as there had been adverts on radio and television.

Mr Smith replied that the Committee was not expected to go to each and every community but some consultations needed to be done. 

Mr Radebe asked the LRC if they expected a cross cutting definition of community.

Mr Smith replied that any definition of community should be based on access and benefit sharing rules.

Mr Radebe asked where the capacity would be drawn from to implement the Bill.

Mr Smith replied that the implementation constraints came with attempts to commodify, register and codify knowledge.

Ms C September (ANC) asked the LRC to provide evidence that there had not been public participation and to suggest communities that felt that they had been excluded.

Mr Smith replied that the LRC felt that they had not been part of the process. Furthermore there was no rollout that was done to communities as per public participation requirement of the Constitutional Court.

Ms September asked for an explanation on how the Bill fell within Schedule 4 for tagging purposes.

Mr Smith replied that the reference to traditional and indigenous implicated Schedule 4.

Ms September asked the LRC what the alternative was to the database as they were sceptical about its use.

Mr Smith replied that the database could only adequately capture intellectual property and not traditional knowledge.

Ms Line asked if LRC was in support of the Bill or if they were of the view that the Bill should be changed.

Mr Smith replied that the LRC was of the view that the Bill should be retagged and further protection of traditional knowledge could only be achieved through customary law. 

South African Institute for Intellectual Property Law (SAIIPL)
Dr Owen Dean made an oral submission on behalf of the South African Institute for Intellectual Property Law (SAIIPL). He informed the Committee that the legislation in its current form would not address what it sought to address. The legislation should be withdrawn and replaced by a sui generis system and the preparation of this legislation should be done by experts vested in intellectual property law. He had prepared an example of what a possible sui generis Bill would look like and this was available to be read by the Committee.

Discussion
Mr Harris asked if the proposed fifty year period adequately covered traditional knowledge protection.

Dr Dean replied that it was a fallacy to think that any protection under the Bill would be in perpetuity.

Mr Harris asked if there was room for customary law to protect traditional knowledge.

Dr Dean replied that a customary law approach could be married with a sui generis system.

Ms September asked why the Bill was regarded as flawed and why a separate dispensation was needed. Was it flawed such that it was irreparable?

Dr Dean replied that expectations would be created by the Bill but these would not happen as it was not workable.

Ms September asked why South Africa was being referred to the sui generis system.

Dr Dean replied that this was because the sui generis approach was the best way of protecting indigenous knowledge.

Ms September asked what the possible impact would be of going with the sui generis system as this was subject to constant renewal.

Dr Dean replied that cultural expressions could best be protected by sui generis system

Mr Gcwabaza asked what areas of traditional knowledge were not accommodated by intellectual property policy.

Dr Dean replied that traditional knowledge should not be regarded as being outside intellectual property policy.

Mr Mabaso asked where the burden would be carried in terms of the cost benefit analysis of the Bill.

Dr Dean replied that a lot of thing such as the Commission which would be created would be costly exercises but the Bill was not workable.

SA Music Performance Rights Association (SAMPRA) / Recording Industry of SA (RISA) Submission
Mr Nicholas Motsatse, SAMPRA CEO, representing RISA presented the submission. The Committee was informed that the Bill’s proposed amendments to Section 9 of the Act would materially prejudice the rights of copyright holders. RISA and SAMPRA urged the Committee not to let the amendments pass in their current form. The proposed amendment to Section 9 of the Act sought to introduce a negotiated process regarding a royalty between copyright holders and users. RISA and SAMPRA did not have any objections to the principle of providing for such a process if it was limited to copyright holders and users although it appeared to be entirely unnecessary since copyright holders and users had always negotiated the amount of royalty payable for copyright works used and would continue to do so regardless of any provision in the Copyright Act requiring them to do so.

The current formulation of the proposed amendments had been drafted in a manner that would clearly lead to absurdity if enacted and would create immeasurable uncertainty around the implementation and application of the provisions of Section 9. Mr Motsatse concluded by stating that over the years since the 2002 amendments to the Act, SAMPRA had encountered continual procedural difficulties arising directly from the tripartite negotiation provisions of Section 9A in administering copyright on behalf of RISA’s members. This had resulted in the loss of hundreds of millions of Rands to performers as it had directly supported a culture of non compliance that had been exploited by the broadcasting and retail industries to delay the implementation of the amendments to the Act introduced in 2002. The Committee was urged to take this opportunity to call for the amendment of Section 9A (1)(b) back to what was originally proposed and endorsed by the Committee and stakeholders which read: ‘the amount of any royalty contemplated in paragraph (a) shall be determined by an agreement between the user of the sound recording and the owner of the copyright, or between the representative collecting societies.’

Discussion
Ms F Khumalo (ANC) asked what was being done to fight piracy through the ant-piracy unit.

Mr Motsatse replied that the organisation was trying its best to fight piracy with meagre resources. This was being done with the law enforcement agencies.

Mr Mabaso asked what its strategy was to reach out to informal settlements and the rural areas.

Mr Motsatse replied that RISA membership was open to everybody and the current membership was spread across all the provinces.

The Chairperson asked what the issue was about section 9 not covering musical rights.

Mr Motsatse replied that the various categories from the sub-sequence sections catering for copyright had been introduced into Section 9A. Therefore many parties had to agree to the royalty despite it not affecting them.

Dramatic, Artistic and Literary Rights Organisation (DALRO) Submission
Ms Nothando Hlatshwayo, General Manger: DALRO, said DALRO was of the view that protection for indigenous knowledge was important and overdue as it had been expropriated and exploited without due acknowledgement and compensation given to the owners. There was therefore a need to implement an appropriate way of protecting this knowledge from unauthorised use and compensate creators and owners. However DALRO observed that protecting South African authors and artists was also important therefore legislative changes should not cripple those authors and playwrights who had documented and shared age-old information that those now living in 21st century South Africa would otherwise have forget.

Ms Hlatshwayo pointed out a few issues within the Intellectual Property Laws Amendment Bill that were flawed. Among these was the matter of collective ownership which was not clarified in the Bill therefore making it unclear if a community could own intellectual property in its own name, bearing in mind that the rules of intellectual property were not developed with the protection of communal ownership in mind. The Bill further declared that indigenous knowledge would only be protected if created during the last fifty years, that is, on or after 1960. The beneficiaries of indigenous knowledge created before 1960 would forever be deprived of any form of protection. Those indigenous communities owning indigenous knowledge would be unable to effectively monetise and trade in their indigenous knowledge (as was the wish of any owner of intellectual property) because of the issues surrounding the practicality and workability of the Bill. There was also a lack of definitions and clarity when it came to concepts such as indigenous community and the indigenous knowledge holders themselves were not benefitting from their indigenous knowledge because it was not being exploited to their benefit, there would be no real benefit to the national economy.
Ms Hlatshwayo concluded by stating that DALRO strongly believed that the development of a specific system of law within the intellectual property system for indigenous knowledge protection, designed for its distinctive characteristics, would provide the easiest and most effective route.

Discussion
Mr Gcwabaza said that there was need to be careful not to assume that all artistic work would benefit communities where the works originated as this would raise unnecessary expectations.

Mr Mabaso said that if the process was well followed, a Bill would be produced that had consensus. There was therefore a challenge of coming up with a Bill that would accommodate everyone.

Mr Harris asked why South Africa was not a signatory to the African Region Intellectual Property Organisation (ARIPO) and whether the country should be doing more regionally.

Ms Hlatshwayo replied that ARIPO was at an inter-governmental level and therefore the Department would be better placed to respond to the question

The Chairperson asked for clarity on the ‘objective of preventing exploitation without recognition’.

Ms Hlatshwayo replied that exploitation in the stated ‘objective of preventing exploitation without recognition’ was used positively to mean making use of resources.

South African Music Rights Organisations (SAMRO) Submission
Mr Joel Baloyi, SAMRO Company Secretary, stated that
protection of traditional knowledge was critical to the economic success of any developmental state, the dignity of communities, the promotion of cultural diversity and the ethical advancement of knowledge, science and research. SAMRO had presented and defended the need to protect traditional knowledge at the conference hosted by WIPO in 2004. The full and economically viable protection of traditional knowledge was long overdue. This could only be done using a law of its own kind, meaning a sui generis legislation, custom made to the needs and nuances of traditional knowledge, thereby comprehensively covering all aspects of traditional knowledge used by others. The rationale for this was to offer true protection as opposed to “make believe” protection and this would also be consistent with international best practice. Such an approach would also be consistent with current WIPO discussions and the position of the African Regional Intellectual Property Organization (ARIPO).

There were also some concerns with the consultation process such as the NEDLAC
process and the Regulatory Impact Assessment (RIA) was yet to be made public. The Bill did not address definitions adequately and was also marred with inconsistencies. Some of the unintended consequences arising from the flaws were the devaluation of the value of copyright, lack of protection for traditional knowledge-reliant communities, ongoing litigation and the negative impact on the economy as a whole. Mr Baloyi concluded by requesting the Committee to mandate the Department of Trade and Industry to draft a sui generis legislation with time lines and in doing so to consult with all relevant stakeholders. The process should further take into consideration other appropriate global initiatives such as the WIPO discussions and ultimately recommend a sui generis Bill to Parliament.

Discussion
Ms September asked if there were any possible problems that the Bill would cause to the economy.

Mr Baloyi replied that the industry had a general impact on the economy as media exports had a potential to contribute to growth and also create jobs. Therefore if legislation was introduced that would interrupt the development of the industry, the country would be taken backwards.

Ms September asked to what extent the Bill addressed indigenous knowledge protection.

Mr Baloyi replied that the Bill would not work and the country would be trapped in expectation. Therefore there was a need for a specific legislation that would address indigenous knowledge protection.

Ms September asked how the communities would lose their past and heritage.

Mr Baloyi replied that Intellectual Property Law tended to favour individuals and as a result communities would lose out.

Ms C Kotsi (COPE) asked if it had been proposed that the Bill goes back to the Department or that the Committee would deal with issues.

Mr Baloyi replied that the proposed Bill should go back to the Department as it was their role to prepare legislation to be brought before Parliament. This was because what was being proposed was an entire piece of new legislation and not amendments to the proposed legislation

Ms Kotsi said that it was important to ensure that South Africa made a workable legislation as the world was looking up to the nation.

Ms Kotsi asked how the users of traditional knowledge were currently compensating the owners of the knowledge. The purpose of the legislation was to ensure that owners were protected.

Mr Baloyi replied that there was no obligation to do so under the current legal framework. It was therefore important to protect communities and not leave protection to good will.

Mr Mabaso asked for an elaboration about the ongoing litigation after the introduction of Needletime Rights.

Mr Baloyi replied that a comprehensive submission would be made available to the Committee.

Publishers Association of South Africa (PASA)
Mr Nicol Faasen, PASA Chair, said the Bill was fundamentally flawed and would not achieve its objective of protecting traditional works against exploitation without benefit to its originating communities. PASA had two main objections. Firstly South African authors would be dispossessed of their rights of copyright in works which would be considered as traditional works under the Bill. PASA illustrated this, saying the copyrights in traditional work would belong to the National Trust Fund which was not a juristic person in law. A new species of copyright work which overlaps with literary works and which would be owned by the state would create uncertainty and increase the commercial risk. Due to the vague definition of community, there was no provision for the representation of the community. Therefore there was no way of determining who was entitled to speak for the community. The dispossession of authors of their rights would also be a breach of the provisions of the Berne Convention dealing with ownership of copyright works. The Bill might well be the subject of constitutional challenge as Article 27(2) of the Universal Declaration of Human Rights stated that ‘everyone had the right to the protection of the moral and material interest resulting from any scientific, literary or artistic production of which he was the author.’

The second objection was the conversion of exclusive rights under copyright to remuneration rights. Clause 8 of the Bill proposed to amend Section 9A of the Copyright Act. Clause 8 covered far more than traditional works and fell outside the object of the Bill to protect traditional works. Clause 8 was incorrect because it referred to agreement with the author. Remuneration for the use of the protected literary work rested with the owner of the copyright. Mr Faasen concluded by stating that the Bill would be ineffective and prejudice South African authors and publishers. It would further be in contravention of South Africa’s international obligations. PASA proposed that Parliament should seize the opportunity of according proper and legal protection to traditional expression of culture and traditional knowledge by considering a comprehensive form of protection of traditional works and traditional knowledge under a sui generis legislation, in line with international developments at WIPO and elsewhere.    

Discussion
Mr Harris asked what the importance of South Africa aligning with WIPO, TRIPS and ARIPO was.

Mr Faasen replied that one of the fundamentals of copyright was that the way one was treated in their country was how they expected to be treated in another country. If this was not done, the system would disintegrate into piracy.

Mr Gcwabaza asked what the difference was between the South African Bill and what was being discussed at WIPO.

Mr Faasen replied that what was being advocated in South Africa was different from what was being discussed at WIPO which was advocating a sui generis system.

Mr Gcwabaza asked PASA how they applied the use of absolute rights simultaneously with exclusive rights.

Mr Faasen replied that absolute rights and exclusive rights were one and the same thing.

Ms September asked why the Bill should be sent back to the Department. Should Parliament not be given a chance to make the necessary changes?

Mr Faasen replied that in no way was the request to return the Bill to the Department meant to suggest that the Committee would not adequately deal with it, but what was being proposed was new legislation.

South African Screen Federation (SASFED) Submission
Mr Ben Horowitz, Executive Committee: SASFED, explained that although the present Act protected people who held the copyright, it allowed for the person who paid for the creative work to hold the copyright rather than the creator. This meant that members of SASFED could work an entire life time without ever benefiting or building on their own intellectual property. This kept artists dependent and poor. SASFED fully supported the intention of an amendment that would further protect the rights-holders of indigenous knowledge across all industries and sector. However, it believed that the existing Act had successfully protected rights-holders and changes to the Act should not complicate or divert from existing strong legislation. SASFED supported the building of the database as this would go a long way towards the preservation and propagation of traditional heritage especially in the arts, culture, story telling, language and visual arts sectors.

Despite this SASFED was concerned that the wording of the proposed amendments was often loose and open to contradiction and interpretation. The proposed amendment appeared to be full of loopholes throughout and would contravene existing international treaties and was further considered by some to be fundamentally flawed. Mr Horowitz concluded by stating that SASFED was concerned with ‘Needletime’ Rights and ‘collection agencies’. The payment of royalties to the collection agency and the amount being determined by the collection agency was totally unacceptable to producers and their investors. Furthermore the film and video industry did not see the need for a centralised government linked to a collection agency. Due to the accusation levelled at local broadcasters, SASFED had already began exploring the establishment of a collection agency to protect the rights of artist, and other rights holders but this should be an industry initiative regulated by the industry.     

Discussion
Mr Mabaso said that in a developmental state, government had a critical role to play. The market could not take care of those that were unable to cope.

Mr Horowitz replied that government needed to protect its citizens and their rights but there was a need for a distinction between control and support.

Mr Gcwabaza asked what the terms of reference would be and who would regulate the independent body that was being proposed to regulate the database.

Mr Horowtz replied that the industry had already experienced problems with government organisations such as SABC and allowing the organisation controlling databases to be run by a government agency would not work well. The database could be simply supported by government. The registration of folklore should be about documenting the information and should not be about which folklore belonged to whom.

South African Federation Against Copy Right (SAFACT) Submission
Ms Helen Kuun said that feature films already contributed and licensed material from SAMRO, PASA and most of the royalty collection agencies Therefore introducing another licensing agency could inhibit a copyright owner/film producer of their ability to negotiate independently with other producers (offshore) to fund and create feature films. Unless the intent was to leverage a specific allocated royalty to such a Fund that would enable filmmakers to reference and incorporate elements contained in stories that could be interpreted as either traditional knowledge or history,
where is this line drawn in the context of storytelling?

 

 

Sound recording owners as referenced in Section 9 were typically not film owners and were generally remunerated via either royalties or flat fees for usage of material as part of feature films. Therefore to incorporate the owner of a sound recording in the negotiation process of feature film funding & producing would disadvantage copyright owners of feature films and make it impossible to conclude successful funding models for feature films in line with filmmaking values in the world. Intellectual property treaties enabling robust growth in the film sector would be severely disadvantaged by inclusion in Section 9 since the treaties grant minimum rights within the context of copyright owners and between the part-owners of copyright to enable the making of film.

Ms Kuun said that compelling copyright owners to use collecting societies not selected independently would infringe on the rights granted in the context of treaty agreements. With local productions the royalties due on needletime rights (normally on music) would now be applied to feature films & television programs as well and that the amounts due would be determined by the collection agency. This takes the ability of the film entrepreneurs/producers ability to finalise business models successfully. The traditional music industry royalties collection model seemed to be applied to the audiovisual industry which is not possible. The author and the copyright owner are mostly not the same entity.

Discussion
Ms September asked if there was any collusion in terms of the submissions because all of them seemed to be the same.

Ms Kuun replied that SAFACT had a similar position with other sectors as most writers ended up in one feature film. So it was therefore important for SAFACT to ensure that all the underlying works were taken care of.

The Chairperson thanked the members of the Committee for the commitment they had shown by staying on through all the submissions. The Chairperson also thanked all those that had made submissions and the Department of Trade and Industry officials who had been present throughout the hearings.

The Chairperson welcomed the Minister of Trade and Industry.

Commissioner for National Consumer Commission appointment: briefing by the Minister
Dr Rob Davies, Minister of Trade and Industry, briefed the Committee on the appointment of the Commissioner for the National Consumer Commission. The Department had issued an advertisement for the position and had received 54 responses. The selection panel which consisted of the Director General, Chairperson of the National Consumer Tribunal, Deputy Director General and Department of Trade and Industry Human Resource staff went through the applications and concluded that none of the candidates met the criteria. The Minister of Public Service and Administration who was in the process of re-deploying Ms Mamodupi Mohlaha consulted with DTI and the selection committee had no objection to her candidature. The proposal would be taken to Cabinet and in terms of the Act, the DTI was required to consult with Parliament. The Minister offered the proposition for consideration by the Committee.

Discussion
Mr Mabaso applauded the Minister on the speedy appointment of Ms Mamodupi Mohlaha as Commissioner of the National Consumer Commission. People continued to be exploited and as such, there was a need to ensure that the Commission was up and running.

Mr Harris said that the individual in question was fired by the Minister of Communications after what was explained to be a total breakdown in communication. Did the Minister of Trade and Industry consider the fact that she could not work with one member of her executive when assessing her appropriateness for the job?

The Minister replied that the overall conclusion of the process was not that the person was unable to work in government but that she perhaps needed to find a position in government different from the one she was holding.  

Mr Radebe appreciated the input from the Minister. The National Consumer Commission was non functional and the move initiated by the Department was in line with making it function. This was the right step and if the selection committee thought that the candidate was suitable, then so be it.

The Minister thanked the members for their comments and promised that the delay in implementation of the Consumer Protection Act was the last one. The dates that had now been set, would not be changed.

The Chairperson once again thanked the Minister for availing himself at short notice.

The meeting was adjourned.

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