Redrafted Intellectual Property Laws Amendment Bill: reading Clauses 1 & 2; Gambling Review plans

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Trade and Industry

27 July 2011
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

Intellectual Property Laws Amendment Bill
The Committee’s Task Team proposed that the documents be numbered for ease of reference. The redrafted Bill, Version 1.3, would be called document IP1. The Committee decided that all definitions would be referred to the consultants with special emphasis being placed on certain definitions as raised by members.

The head of the Task Team said that the whole of Clause 2 dealing with Section 8 from 8A to 8M should be flagged for advice from the consultants. A member queried whether Clause 2 was applicable to the Performers Protection Act. There was a debate on recognition of communities and a member wanted “enforcement” also referred to the experts.

A member queried whether hereditary rights were in perpetuity and also the distinction between hereditary and derivative rights. The Parliamentary legal advisor said that the in perpetuity clause did not contradict the World Intellectual Property Organisation (WIPO) provisions, as long as the community existed, and that this was also the global view.

A member said that communities should have input on how the funds and royalties were to be used.
The Chairperson said that derivative rights, the restriction on the use of royalties, together with dispute resolution hearings, would be put to the consultants for a written response. A member asked what the point of raising an issue was when all would be referred to the consultants. He was concerned and had deep misgivings about the fact that no legal representation was allowed at the dispute resolution hearings.
The Acting Chief Director of Policy at the dti said that the policy perspective was that it wanted dispute resolution to be informal and that it should follow a cultural communication route (tribal court) before the courts were brought into play. A member said the resolution process should be similar to the Council for Conciliation, Mediation and Arbitration process.

Gambling Legislation Review
The Gambling Legislation Review had been tabled on 22 June. It had not been formally given to the
Committee but that did not preclude the Committee from starting to work on it. It only meant that the Committee could not comment on it until it had been formally been received. The Chairperson proposed that a Task Team chaired by Mr N Gcwabaza (ANC) be established. A briefing together with the terms of reference of the Task Team would be given on 10 August. Two weeks later the Committee would begin to work on this matter.

Comments to the media about Companies and Intellectual Properties Commission (CIPC)
The Chairperson prefaced the meeting with a comment on newspaper reports about the Democratic Alliance calling for the Minister to declare a State of Emergency with regard to the Companies and Intellectual Properties Commission. She said that certain members who had called for the Minister “to declare a state of emergency” should get to know the Constitution better about calling a state of emergency.

In response to the Chairpersons opening comments, a DA member of the Committee said that the CIPC (Companies and Intellectual Properties Commission) had reported that 196 applications had been processed in June 2011 compared to the 3000 of the previous year. There was clearly a problem at CIPC. With regard to the Minister, he said that the media intervention had had an effect as the Minister would be giving a briefing to the Committee at the end of August.

A member of the ANC said that the DA member’s actions was politicking and grandstanding. Lots of issues had been raised during the oversight visit and the Committee had been awaiting responses before debating. He felt that this kind of grandstanding would damage relationships in the Committee, as a matter of protocol members had to have a modicum of decency and courtesy. It was not the DA which had made the Minister take certain steps. That type of thinking, he felt, would bedevil Committee relationships.

Members of the Freedom Front Plus and COPE differed with the latter view and said that it would stifle the right to freedom of expression.

The Chairperson said that the oversight visits were done as a Committee and not as individuals and that when communicating with the public, members had to be cognisant of the office of the Chairperson.

Consultants to the Intellectual Property Bill
The Chairperson said that Adv Tshepo Shabangu had asked to be relieved as consultant. The Chairperson said that from time too time the Committee might engage with experts who were not on the list.

Southern Africa Customs Union (SACU) conference
Mr J Smalle (DA) and Mr G Selau (ANC) together with Ms Herling, the Committee specialist researcher, would attend the Southern Africa Customs Union (SACU) regional conference, on behalf of the Committee.

 

Meeting report

Intellectual Property Laws Amendment Bill
Ms Sue van der Merwe (ANC), head of the Committee Task Team, proposed that the documents be numbered for ease of reference. The redrafted Bill 1.3 would be called document IP1. The Committee then proceeded to go through the document IP1 from the beginning.

Adv Charmaine van der Merwe, Parliamentary Legal Advisor, said that the Long Title of the Bill and the Preamble were not part of the Act but added further clarity.

Clause 1
Adv van der Merwe went through the clause, which dealt with insertion of or changes to definitions in the Performer’s Protection Act and the Copyright Act.

 
Mr A Alberts (FF+) remarked that the definition for “fixation” was different from the one in the Copyright Act, noting that the original definition referred to moving images. He said “fixation” needed to be defined because it differed from how it was used in the Copyright Act.

Ms van der Merwe said that the “hereditary” and “derivative” definitions needed special comment and it was decided by the Committee that all definitions would be referred to the consultants with special emphasis being placed on certain definitions that were flagged and Mr Alberts’ point.

Clause 2
This dealt with insertions after Section 8 of the Performer’s Protection Act from 8A to 8M

The words “fixation” and “fixed” in Clause 8B(1)(b) and (c) were to be queried.

Mr Harris said clause 2 was repeated in each Act and queried whether it was applicable to the Performers Protection Act.

Adv van der Merwe said that the dti had introduced the amendment.

Ms van der Merwe said that the whole section should be flagged for advice from the consultant.

Mr Harris said that 8B(2) which included reference to heritage and bio-diversity was not necessarily applicable to the Performers’ Protection or Copyright Acts. He added that the sub clause on disclosure needed to be tightened up.

Ms van der Merwe said that with regards to 8C(2), she was concerned that anyone could submit a claim to the Registrar and this needed to be tightened up.

Mr Harris said, with regard to 8D, that it was difficult to define who would be able to speak on behalf of a community and suggested inserting a hurdle condition to ensure that communities register.

Mr B Radebe (ANC) noted that many communities were organised with traditional structures, such as having a chief.
 
The Chairperson remarked that the Act should be broad in principle.
 
Mr J Smalle (DA) suggested adding provisions for communities that were not properly structured to assist them in taking that step.
 
Mr G Selau (ANC) recommended conducting a study to better understand these communities, particularly in rural areas.
 
The Chairperson asked how to raise the bar for these communities without excluding them, and also reiterated that the purpose here was not to commercialise communities.
 
Ms van der Merwe wanted “enforcement” also referred to the experts.

The Chairperson said that 8F(1) “derivative traditional performances” should also be referred to the consultants.

Mr Harris queried the fact that hereditary rights were in perpetuity and said it rocked the fundamentals of intellectual property to an extent.

Mr Alberts said cultures and communities changed over time, sometimes ceasing to exist.

Mr Radebe said that in those cases where the communities ceased to exist, the rights should revert to the state.
 
An Advocate, in response to Mr Harris’ concerns, said that the principle of perpetuity was subject to section 5 and 8B.

Adv van der Merwe said that the in perpetuity clause did not contradict the World Intellectual Property Organisation (WIPO) provisions, as long as the community existed, and that this was also the global view.

Adv Johan Strydom, dti Legal Advisor, said he had anticipated dealing with the bill on a clause by clause basis.

Mr Harris questioned whether it would be easy to distinguish between hereditary and derivative rights.

The Chairperson said that the Committee should request comment on derivative rights and also on the restriction on the use of royalties [clause 8G(2)-(4)].

Ms van der Merwe referred to the National Trust Fund and said the whole of 8G should be referred as well as 8H which was considered a major issue for referral.

Mr Harris said that communities should have input on how the funds were to be used and how royalties could be determined by an institution without consent from the indigenous community.
 
Mr Alberts suggested that if the Council deems any clauses unacceptable, they should give guidance in renegotiation to protect from clauses that may be detrimental to the community.

In answer to the Chairperson’s request for clarification, Adv van der Merwe said “Assignment” in 8I referred to functions assigned (where the rights were transferred) as opposed to, for example, functions being delegated (where the obligations were transferred).
 
The Chairperson also requested clarification for “Licences” in 8I which Adv van der Merwe explained were allowances to make use of a performance.

Mr Smalle recommended that these two words should be part of the definitions in the beginning.

The Chairperson said that recommendation had some validity but that “Assignment” could be too general by nature.
 
Mr Alberts noted that ‘assignment’ and ‘licences’ have general meanings in law and did not need to be defined, and articulated the three types of limitations for licences, comparing it to a loan as opposed to an assignment being outright.
 
Adv van der Merve agreed that ‘assignment’and ‘licence’ have general legal meanings but that defining them in the Act could limit their application.

The Chairperson said that these together with “dispute resolution” would be put to the consultants for a written response.

Mr Harris asked what the point of raising an issue was when all would be referred to the consultants.

The Chairperson said that the input was needed to give focus to the consultants.

Mr Harris said that the Bill did not stipulate which institution would be the dispute resolution institution and asked whether dispute resolution could be done by the courts. He was concerned and had deep misgivings that no legal representation was allowed at the dispute resolution hearings.

Mr MacDonald Netshitenzhe, dti Acting Chief Director: Policy, said that the policy perspective was that one wanted dispute resolution to be informal not technical (not about having the best lawyer), that is a tribal court could take account of cultural communication.

Mr Alberts said the dispute resolution should be similar to the Council for Conciliation, Mediation and Arbitration (CCMA) process and he was concerned that there was no provision for appeals. Parties had to be allowed to be able to choose to appeal, or not. He suspected that one could not exclude the court’s jurisdiction in these matters.

Mr Netshitenzhe said it was not about excluding the court but of exhausting the cultural communication route before the courts were brought into play.

Ms van der Merwe said the next Task Team meeting would be on 2 August 10am -12pm. She further suggested that in the presentation of issues to the relevant experts, the entire document be provided, as it would be better to comment on the marked items as a whole.
 
The Chairperson agreed and moved to the next item on the agenda.

Gambling Legislation Review
The Committee Secretary said that the Gambling Legislation Review had been tabled on 22 June. It had not been formally given to the Committee but that did not preclude the Committee from starting to work on it. It only meant that the Committee could not comment on it until it had been formally received.

The Chairperson called on all members to study the report. She proposed that a Task Team chaired by Mr N Gcwabaza (ANC) be established. A briefing together with the terms of reference of the Task Team would be given on 10 August.
 
Comments to media about oversight visit to Companies and Intellectual Properties Commission In response to the Chairperson’s opening comments in the meeting, Mr Harris said that the CIPC had reported that 196 applications had been processed in June 2011 compared to the nearly 3000 in June 2010. There was clearly a problem at CIPC. He pointed out that the media intervention had had an effect as the Minister would be giving a briefing at the end of August.

The Chairperson noted the view of the legal counsel present for the Intellectual Property Bill and that the call for a State of Emergency was a serious matter. The oversight visit was by the Committee and not by individual members. 

Mr Radebe said that the DA member’s actions was politicking and grandstanding, but that it was not wise for members to throw stones. Lots of issues had been raised during the oversight visit and the Committee had been awaiting responses before debating and had not jumped the gun. He felt that this kind of grandstanding would damage relationships in the Committee. As a matter of protocol, committee members had to have a modicum of decency and courtesy. It was not the DA which had made the Minister takes certain steps. He felt that thinking like that would bedevil Committee relationships.

Ms C Kotsi-Ramotsamai (COPE) said she begged to differ with Mr Radebe as she felt that his way would be stifling debate.

Mr Alberts said everyone had a right to freedom of expression. As opposition parties they had the right to use the press. However the Committee could request the political parties not to raise issues in the media.

The Chairperson said that when communicating with the public, members had to be cognisant of the office of the Chairperson.

Consultants to the IP Bill
The Chairperson noted that Adv Ms Tshepo Shabangu had asked to be relieved as consultant. The Chairperson said that from time too time the Committee might engage with experts who were not on the list.

Ms van der Merwe asked that agendas be given at least 24 hours in advance.

The meeting was adjourned.

 

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