Deliberations on Intellectual Property Laws Amendment Bill

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Trade and Industry

16 August 2011
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The ANC presented the document, “Responses from Experts to Questions Posed by Committee on 29 July 2011”, numbered IP10. Several issues in the Bill were addressed, including the public domain, transitional arrangements, public hearings, the definition of derivative traditional performance and indigenous community, the database, and registration. The presentation stopped at page 20 of the document because that was as far as the Working Group on the Bill had reached in its deliberations.

The Committee proceeded to consider the 27 July working draft of the Bill, referred to as IP1, starting with clause 2 dealing with the insertion of section 8K into the Performers' Protection Act. The DA raised concern about the Bill’s provisions on international agreements, specifically in relation to reciprocity. The ANC felt that this was a fair question and debated it thoroughly. The DA suggested expert advice to be consulted, while the State Law Advisor proposed a tightening of the relevant clause (8L), which the ANC agreed to consider. For the Bill’s clause on regulations and guidelines, the DA made a proposal to reword sub-clause 8M(1)(c) in order to clarify its provisions and limit its scope. The ANC said that 8G already covered the DA’s concerns, whereas the FF+ noted agreement with the DA. The DA also suggested that experts be consulted on the issue, which the ANC rejected. However, they did agree to look at a redrafting of the clause.

On clause 3 regarding amendments to the Copyright Act, the ANC said that all the definitions in 3(b) should be flagged because they repeated themselves. In clause 4, the DA questioned whether oral tradition was sufficiently protected to be eligible for copyright in 28B. The ANC thought otherwise, arguing that it was protected by the clause as currently worded. The FF+ raised concern about the timeframe of 50 years in the same clause, arguing that hereditary works could have been in existence for much longer than that. The Committee agreed to consider removing that limitation.

Debate ensued on 28D, which covered copyright ownership. The DA was concerned about the clause’s stipulations for the trust, which would take up ownership if no owner was identified. The DA also questioned how royalties would be allocated in the event of shared ownership. The ANC said that 28I covered these concerns, and felt that 28D’s intent was clear. The Committee deliberated this issue for a considerable amount of time before agreeing to postpone further debate until they reached the clause covering the trust itself.

After taking a short break, the Committee listened to the Law Advisors, who presented their opinions on some of the contentious issues discussed earlier. The Committee then returned to its deliberations, taking up the issue of a copyright exemption for education, as articulated in 28G. The DA also raised concern about 28G in regard to copyright being used in a way contrary to its original intent.

The Committee consulted with officials from the Department of Trade and Industry (dti) about their regulatory impact assessment reports (RIA). The officials explained the reports and the Committee responded to their presentation. The DA requested an opportunity to engage with the teams that conducted the reports, which the ANC agreed with. The ANC was also worried that the reports were outdated.

The Committee closed the meeting by considering the program for upcoming meetings. The meeting was adjourned in order for the working group on the gambling review to proceed with its own meeting.

Meeting report

Responses from Experts to Questions Posed by Committee on 29 July 2011
The Chairperson asked Ms S van der Merwe (ANC), Head of the Working Group on the Intellectual Property Laws Amendment Bill, to present a report from the working group meeting.

Ms van der Merwe referred to the document, titled “Responses from Experts to Questions Posed by Committee on 29 July 2011”, and said the leftmost column had the Committee’s questions and the experts’ responses were tabulated in the columns to the right. She would talk in broad terms for concepts but would reference exact lines when necessary. She said it was important for the drafting team to speak to the experts to gain a greater understanding about what had been drafted.

In her presentation, she referred to page 5 of the document, which articulated the public domain issue. Whether these rights would be perpetual or not would be a policy decision, but it would be discussed with the various legal teams. She noted the “Shabangu” column on page 6, which stated that this issue was vague and needed to be addressed. Ms van der Merwe suggested that transitional arrangements may need to be formulated. On page 8, she referred to the issue of public hearings and said the DA did not support further public hearings on the Bill, and stated that she felt it was not necessary to do so either, while noting that the public was free to comment on the Bill at any time. On page 11, she referenced the definition of derivative traditional performance and said it had been flagged because discussion on the issue had become a sort of existentialist argument that took up considerable time. She added that such a discussion was better suited for philosophers than the experts. She raised the question of how something can be identified if it existed only in the minds of people and not in actuality. Ms van der Merwe then turned to the “Von Braun” column on page 15, which discussed the issue of what constituted an indigenous community. She articulated the expert’s opinion that indigenous community referred not to ethnicity but rather common cultural practices, and stated that a new draft would be considered for the issue. She noted two areas that the Committee would have to deliberate on itself because they were matters of policy, particularly the question of a database (noting a new tightened definition) and whether a community would have to set up a juristic person in order to register as such. She stopped at page 20 of the document because that was as far as the working group had gotten and said the remaining ten pages would be discussed at their next meeting. She said the experts would be allowed to meet with the team to provide feedback on the unresolved issues. Finally, she suggested to that the Committee pick up where they left off in the current working draft of the Bill so that issues could be flagged.

The Chairperson thanked Ms van der Merwe for her presentation and said that the pace of deliberations would need to be increased but would wait for the updated program to discuss that issue. She agreed with Ms van der Merwe’s suggestion, and thus said the working draft of the Bill (dated 27/07/11; Redraft 1.3; no IP1) would be considered clause-by-clause beginning with 8K on page 18.

Deliberations on Intellectual Property Laws Amendment Bill
Clause 2 (Performers' Protection Act amendments)
The Chairperson read the clause which referred to the National Council, then read 8L, Compliance with International Agreements, which she said warranted careful consideration of the Committee. She proceeded to read 8M, Regulations and Guidelines.

Ms van der Merwe asked to pause before going onto the next clause, which dealt with amendments to the Copyright Act.

Mr T Harris (DA) stated that he was two pages behind the Chairperson and asked for her to go a bit slower, adding that they just breezed through three potentially contentious issues.

The Chairperson agreed that international agreements was a point of emphasis. She further asked if a copy of the Copyright Act of 1978 was on hand, to which the Committee Secretary responded that it was. She backtracked to 8J, Disputes, because she felt it was an important issue.

Ms van der Merwe said the question of disputes had been put forth to the experts and then would be dealt with by the working group.

The Chairperson responded by saying the Committee would wait to deal with 8J. She then asked Mr Harris to make his point about international agreements.

Mr Harris raised concern that if no other country was following the Bill’s proposed model for traditional knowledge, but reciprocity was allowed, that would be problematic. He said that the proposed definition for indigenous community was not adopted as the international standard by WIPO, and stated that individuals in other countries could misuse the law to get protection in South Africa.

The Chairperson said Mr Harris’ point on reciprocity was a fair question and asked if there were any further comments on the issue.

Mr X Mabaso (ANC) said the Committee should remind itself that the legislation was complementing and influencing international practices at WIPO. He said some innovations would get appreciated at that level.

Mr Harris referenced 8L(3)(a), articulating his concern of a backdoor avenue for people in other countries to get protection in South Africa. He did not think this was sufficient.

The Chairperson asked for input from the both the Parliamentary and State Law Advisors.

Adv Charmaine van der Merwe, Parliamentary Legal Advisor, addressed the concern about reciprocity. She said that if an individual’s country did not have a law protecting their intellectual property, then there would be no reciprocity in South Africa. She named a multitude of countries that had systems recognising traditional intellectual property, and it was those countries that reciprocity could be entered into.

Adv Mongameli Kweta, State Law Advisor, commented that the relevant Minister would specify the country in notice in order to ensure that agreements have been entered into and ensure that South Africa would benefit as well.

Mr Harris provided a hypothetical example to explain his concern. He said if Kenya had similar legislation protecting traditional intellectual property and was acknowledged by the Minister in South Africa, then a Kenyan community that claimed ownership to a song could have protection in South Africa before a South African group who claims ownership to a similar song. He stated that this could lead to disputes.

Adv van der Merwe said that such a case could occur but that the necessary terms of compliance would have to be followed and if a group in South Africa wanted to challenge this, they could do so pursuant to the dispute resolution clause in the Bill. She added that this was precisely how copyright and trademark worked both globally and in South Africa.

Adv Kweta said this would be an unintended consequence and stated that the provision could be revised. He suggested tightening it up to ensure that the Minister would have to specify only countries which South Africa had entered into agreement with.

Mr Harris felt that the experts should be consulted on that proposal.

The Chairperson asked for Adv Kweta’s proposal to be inserted into the draft for consideration.

Ms van der Merwe suggested compiling these questions to be asked.

The Chairperson said that dispute resolution was already noted as an issue.

On clause 8M Regulations and Guidelines, she asked Adv J Strydom, dti Legal Advisor, to clarify this clause.

Adv Strydom said this was a common kind of provision, an enabling clause to allow the Minister of Trade and Industry to make subordinate legislation in the form of regulations. He said the Minister would be given fairly wide powers as well as guidelines to enact regulations. Regulations would have the same status of law as the Act itself, while guidelines would provide guiding principles for the Minister but would not have the status of law.

The Chairperson noted that all the issues discussed would be tackled at a later time.

Mr Harris intervened to return to 8M(1)(c), suggesting to tighten the sub-clause to limit its scope to traditional works and traditional performances in order to make the provision clearer.

Ms van der Merwe said that this was covered in 8G.

The Chairperson said the term ‘functions’ in 8M(1)(c) specified the limitations.

Mr Harris reiterated his suggestion to add the words “traditional works and traditional performances” to the sub-clause.

Mr A Alberts (FF+) noted agreement but said it depended on how existing collecting societies were covered by current law.

The Chairperson asked for the law advisors’ opinions on whether 8G sufficiently limited 8M.

Adv Strydom said 8M would only be inserted in the Performance Protection Act, thus inherently limiting its scope. He added that 8M(1)(c) with 8G limited the Minister’s power, saying it was not unfettered. However, he expressed that he had no qualms with Mr Harris’ suggestion.

Ms van der Merwe recommended adding the definition of collecting society, which was articulated on page 5.

Mr Harris said the definition on page 5 was not useful for the regulations and guidelines clause. He said this clause was not copyright but rather traditional works and performances, and suggested referring this issue to the experts.

The Chairperson disagreed, saying this was not an expert issue and the Committee could resolve it.

Mr J Smalle (DA) responded to Mr Harris’ proposal by saying it would take away the grey area without changing the context. He said it would close a door that could be abused.

Mr G Selau (ANC) said it was understood what Mr Harris was attempting to achieve, but 8G was specifically and sufficiently designed to deal with restrictions.

The Chairperson stated that Mr Harris’ suggestion for limitation was appreciated but reiterated that there was no need for an expert.

Mr Harris expressed dissatisfaction with the Chairperson’s decision, saying the Committee needed expert opinion.

Ms Zodwa Ntuli, dti Deputy Director-General: Consumer & Corporate Regulation, commented on 8M(1)(c), suggesting that the drafting team take another look at it. She said that consultation with the Minister of Finance should be specifically limited to funding.

The Chairperson asked to see a new draft as soon as possible and proceeded to clause 3 on page 21.

Clause 3 (Copyright Act amendments clause)
The Chairperson read clause 3(a).

Adv Strydom said that 3(a)(k) did not make sense as worded, saying a community could not be a work. He also advised keeping the Performers' Protection Act on hand as well when reflecting on the amendments.

The Chairperson agreed about having the Performers' Protection Act and instructed members to bring it to future meetings.

Adv Strydom proposed a wording change to 3(a) in order to clarify its meaning.

The Chairperson moved to 3(b) and read the clause.

Ms van der Merwe said that all definitions were to be flagged for consultation because they repeated. themselves.

The Chairperson agreed to refer all definitions.

Clause 4 (Insertion of Chapter 2A in Copyright Act on copyright in traditional works)
The Chairperson read clause 28B(2), which provided for traditional works eligible for copyright. To this, she noted Ms S van der Merwe’s earlier remarks about this being a philosophical issue. She said the term “collective memory” in the clause covered the issue of something existing only in the mind. She continued to read through the clause and asked if 28B(4)(c), referring to benefit sharing agreements, would fall under the dispute resolution mechanism.

Adv Strydom stated that the dispute resolution mechanism was very wide and benefit sharing agreements would be subject to adjudication by the relevant body.

Adv van der Merwe said the clause in question was currently being considered by the experts.

Mr Harris raised a question about oral tradition in regard to 28B(2), stating that it currently was not protected by the clause. He asked if this had been referred to the experts as well.

Mr
MacDonald Netshitenzhe, dti Director: Commercial Law and Policy, commented that not everything in copyright law needed to be in writing, and therefore oral work would be subject as well.

The Chairperson replied she did not think that explained what was requested and that it was still unclear.

Adv van der Merwe read 28B(2), emphasising the part that states “or otherwise reduced to a material form or was capable of substantiation from the collective memory of the relevant indigenous community.” She said this did not require something to written down for it to be protected.

The Chairperson once again remarked that “collective memory” covered oral tradition and said that the Committee needed to move on to other issues.

Mr Harris commented to the Chairperson that she was the one who referred his question to the law advisors and apologised for “wasting everybody’s time.”

The Chairperson responded that no comment was a “waste of time.”

Mr Alberts asked if there was differentiation between traditional and hereditary derivative works. In reference to 28B(3)(a)(ii), he asked why there was a limit of 50 years prior to the commencement of this Act with regard to copyright eligibility.

The Chairperson said the 50 years stipulation would need to be clarified. A hereditary work could be much older than 50 years, noting the concept implied hundreds or thousands of years.

Mr Netshitenzhe said that the 50 years provision had to be removed because hereditary works could have an indefinite existence.

The Chairperson said that this would be looked at for redrafting.

Mr Selau agreed to simply remove the 50 years.

The Chairperson advised to flag the issue and return to it later. She began reading 28B(4) before deferring to the law advisors for their opinion on the previous matter.

Adv Strydom said that he did not think she was being fair to the Committee to move on from the 50 years issue if it was going to be removed.

The Chairperson responded that she was waiting for the redraft so that the Committee could consider it in that form. She returned to 28B(4) and then moved to 28C, National Database.

Ms S van der Merwe said that 28C had been referred to the legal teams for the working group to deal with, as it was still under consideration.

The Chairperson noted this and said it should be left alone for now.

She read 28D, Copyright owner, and noted the importance of the definition of “author.” In 28D(2), she pointed to a linguistic error, remarking that “more than one indigenous communities” should be singular rather than plural. She noted that 28D(2) had been dealt with previously.

Mr Harris raised a concern about 28D that if authorship could not be identified, a community could lose ownership and royalties to the trust articulated in 28D(2).

The Chairperson said this concern had been raised previously.

The Chairperson read 28E, Nature of Copyright in traditional works. She asked for the Committee to carefully consider this clause.

Mr Harris said he was concerned about how funds would be allocated to communities sharing ownership. He also suggested specifying that a derivative work was not original so that one work was not given two types of protection. Further, the right to communicate to the public on page 33 should be extended to literary, artistic, and musical works.

Ms S van der Merwe said she did not understand the DA’s argument about the ownership of copyright. She said that 28D had clear stipulations; if the ownership could be identified, the community would attain the copyright. If it could not, then ownership would go to the trust. She did not feel that anyone was losing out.

The Chairperson noted that this issue had been previously discussed, and questioned whether everyone understood the matter.

Mr Harris said he was concerned that if ownership was vested in the trust, would the benefits still flow to the community. He also expressed concern about the allocation of benefits between multiple communities claiming ownership.

The Chairperson stated that a specific clause (28I) was dedicated to the trust.

Ms S van der Merwe referred to 28D(2) where it stipulated that the trust would “be administered for the benefit of all indigenous communities.” She said the intent was clear, and that ownership would only be attained by the trust when an owner could not otherwise be identified. The trust would not allocate benefits to one specific community but to a broader group. It must be ensured that the trust would do its job properly. She certainly did not want a situation where the communities were not protected and benefitting. Nevertheless, she did not understand why there was a query about ownership in regard to this clause, and she asked the law advisors for their opinion.

The Chairperson asked the Committee if anyone else saw ownership to be an issue here.

Mr Harris clarified his position, providing an example of what he saw as the problem with this clause. He said if two communities had a dispute over ownership, and consequently ownership was taken up by the trust, then the royalties would be shared not between those two specific communities but to all indigenous communities. He said this presented a clear ownership issue.

Ms P Lebenya (IFP) said her understanding of the issue was that if two communities claimed ownership, the benefits would be split amongst them rather than the trust dispensing them to all communities.

The Chairperson responded by referring to the dispute resolution mechanism which would be employed for such situations.

Mr Smalle remarked on 28D(2), saying that it could be interpreted as being very wide since it referred to “all indigenous communities.” He asked if the clause could be written to be more specific to the case at hand.

Ms S van der Merwe said the issue here was not about disputed ownership, but rather if an owner could not be identified. She noted that the provisions of 28D(2) would not be applicable if ownership could be shared. The trust would utilise the benefits for a broader goal of aiding all indigenous communities.

Ms Ntuli made a point about appointments to the trust, noting that there were presently no limitations to the number of people that could be appointed by the Minister. This could present budget problems and she suggested adding a limitation of ten people or whatever the Committee felt was appropriate.

The Chairperson noted the suggestion and said the issue would be dealt with when the Committee considered it.

Mr Alberts returned to 28D(2) and said it might imply that works lacking an author could be exploited for commercial purposes. The trust only came into play when there was an aspect of commercial exploitation.

The Chairperson remarked that an issue could arise if someone from another country claimed ownership to something which had no identifiable owner in South Africa. She asked what would happen in that case, even before there was an economic benefit, noting the lack of protection in such a situation.

Ms S van der Merwe noted that ownership of copyright implied commercial exploitation and said the trust should own the copyright if no one else claimed it, because otherwise nobody would own it. In reference to 28D, she was comfortable with the wording but still wanted to hear from the law advisors.

Adv C van der Merwe said that identification of ownership was something that needed to be discussed with experts to determine if this would be an easy or more difficult task. In respect to the sharing of ownership, she did not see a problem with adding a sub-clause to 28D in order to articulate the terms of sharing. On 28D(2), she felt the wording “to be administered for the benefit of all indigenous communities” could be problematic. She advised the Committee to consider proposing a redraft in order to better specify the intended beneficiaries of the trust’s ownership.

The Chairperson noted that the Committee had still not reached the part of the Bill dealing with the trust itself, and it would be examined once they arrived there. She felt that shared ownership was a clear concept, and that the issue here was ownership per se, in its most basic form. She requested that the law advisors ensure that this was sufficiently robust as articulated in the Bill.

The Chairperson moved to page 33, reading 28E(1)(h) and (i), then advanced to page 34 and read 28E(2) regarding the nature of copyright in traditional works. She said the Committee would take a break for tea before considering the next clause, Term of protection. She also instructed the Committee to look at 28E holistically before proceeding.

Mr Harris said he wanted to flag the issue of what Nedlac’s role was in communication to the public.

Mr Alberts remarked that 28E looked like a conglomeration of the existing Copyright Act. If that was the case, the Committee must look at whether it would be allowed to make amendments to what could and could not be done with regard to copyright. He also suggested that the Committee look at relevant case law to clarify some ambiguities in the clause.

The meeting was adjourned for a fifteen minute tea break.

The Chairperson resumed the meeting and allowed the law advisors to present what they worked on during the break.

Adv van der Merwe said that 28E(1)(c) dealt with the various types of works in addition to sound recordings that were covered by the clause. She echoed Mr Alberts’ point about the notion of amendments being made to the Copyright Act, but said the problem would be that it would be like starting the Bill over again. It would be more logical to deal with 28E after the Copyright Act was considered as a whole rather than simultaneously.

Adv Strydom prefaced his comments by saying they would likely be received as unsatisfactory. The nature of the subject matter on page 33, specifically 28E(1)(i), was difficult to deal with. This provision was coming verbatim from clause 7 of the Copyright Act, and thus if there was an issue with it, the problem existed in current law. The word “unless” presented a problem and could be subject to redrafting, and some broadcasting right was being conferred.

The Chairperson read 28F Term of Protection.

Ms S van der Merwe remarked on the clause’s stipulations regarding time frames, noting that the question of hereditary works being in perpetuity had been referred to the law advisors.

The Chairperson said the experts would come back to that issue in the working group and proceeded to read 28F(2).

Mr Harris said that there should be a distinction between hereditary and derivative works in this clause, as well as who owned the work.

Ms van der Merwe reiterated that the issue of time would be returned to.

The Chairperson added that the issue of perpetuity had been referred and would be dealt with at a later time.

She read 28G dealing with general exceptions regarding protection of traditional works. She noted that she did not have any notes from prior meetings on this clause, indicating there were no qualms with it. She raised a point about 28G(5)(d), saying that it sounded like an exemption for copyright consent when something was used for educational purposes. She referred to the public hearings that noted the issue of the burden of intellectual property costs on education. She asked whether she understood the clause correctly.

Adv Strydom responded that her understanding was indeed correct, as the clause’s heading explicitly said “exceptions.” No prior consent was necessary if it was being used for education purposes, such as research.

Mr Smalle remarked that books were not totally free, as they were purchased in one way or another and someone makes a profit from the printed book. He posed an example of copyrighted works being used for a supposed educational purpose, and questioned whether commercial benefits should be protected in such use.

The Chairperson said she understood Mr Smalle’s point but stated that the Internet allowed free accessibility to books and documents. She noted that Mr Smalle’s concern had been brought up in the public hearings.

Mr Netshitenzhe said the principle should be dealt with generally, stating that educational institutions should be allowed to make a certain amount of copies without consent. He noted concerns about the cost of education and the public’s feeling that the issue of exceptions was not good enough to educate students.

The Chairperson said the Committee would move on to consider 28H Royalties, and asked if anyone had any further comments on the previous section.

Mr Harris made a comment on 28G, stating that if someone was using a community’s work in a contrary way to that community’s will, this provision allowed them to continue doing that. He suggested adding a stipulation that allowed for the indigenous community to have a say, because it was unprotected under these circumstances, as written.

Ms S van der Merwe replied that the copyright was protected prior to the Act’s commencement, or rather retrospective.

Adv Strydom referred to previous comments from Dr Oriani-Ambrosini, who was not present at this meeting. He said this was an issue of constitutionality and expropriation. He offered an example of dancers performing a particular dance for ten years prior to the commencement of this law, and making commercial benefit from doing so. He asked how these dancers would be impacted by the enactment of this Bill. He supposed that the past actions would be unaffected, but the future was less certain. No vested right of those dancers was being expropriated by this Bill; however, if they continued to dance for commercial benefit, a provision in the Bill would require a portion of those benefits to be provided to the proper owning community in the form of royalties. To Mr Harris’ point, he said this Bill could go a bit further, asking why these dancers were allowed to contravene conventional intellectual property laws for ten years.

Adv Kweta said that when the Bill becomes law, 28G(4) would ensure that royalties were paid for this type of use.

Mr Smalle advised that there should be a time frame after the Bill becomes law for groups to consider and adjust their use before being obliged to pay royalties.

Adv van der Merwe said Mr Smalle’s point was well taken. She further made note of a “drafting gremlin” in 28G(4), stating that royalties should be paid to the work’s author, not the trust fund, and apologised for the mistake.

The Chairperson informed the Committee that she had to leave the meeting in order to attend another obligation in Parliament, but said she would return when finished. She asked Mr N Gcwabaza (ANC) to take over as Chairperson in her absence. She acknowledged a new program and discussed the arrangements. She asked if the working group would be able to meet on Friday 19 August, to which Ms van der Merwe noted she would not be able to attend. She said this meeting would be closed before the working group considered the gambling legislation.

Ms S van der Merwe noted that her agenda said there would be a regulatory impact assessment (RIA) briefing today.

The Chairperson acknowledged this, and said she would be leaving but would try to sort out her obligations and return shortly.

Mr Gcwabaza took over as acting Chairperson and asked for input from the Department.

Regulatory impact assessment (RIA) presentation
Ms Ntuli said officials from the Department had conducted a RIA on the Bill to ascertain the costs of the policy and regulating instruments to be put in place. She said cost-benefit analyses were normally outsourced to an independent service provider, which was the case in this situation

A director from dti said the cost-benefit analysis looked at the risks and challenges of implementing the Bill. There was some difficulty determining quantifiable costs and benefits, and considered issues such as racial equality, enforcement, the database, and transitioning from the current law to this Bill.

Ms Ntuli said this legislation should not put any unnecessary additional costs of compliance onto the people. She noted the registration process and legal challenges, and remarked that intellectual property fees in South Africa were far lower than the international standard. She felt the value of protecting this notion could not be outweighed, and added that the Bill was justified and needed in South Africa.

Mr Gcwabaza allowed for the Committee to respond to the presentation and ask questions.

Mr Harris said he wanted to engage with the RIA teams, which had been previously offered by dti, to further discuss the details of their reports. He then asked why IP9 was labelled a confidential document only for the eyes of the members and IP8 was not. He also said the assessment reports came to contradictory conclusions. He felt it would be entirely appropriate for the teams to brief the Committee on these documents.

Mr Mabaso asked Ms Ntuli if the costs she referred to were incurred by the intellectual property owner, the state, or a combination. He also asked how it can be ensured that intellectual property owners become aware of the Bill’s impact, because they would need to know this in order to weigh the benefits versus the losses in their decision making.

The Chairperson returned to the meeting and replaced Mr Gcwabaza in her normal position.

Ms S van der Merwe said she was worried about the dates of the assessments, which were done in 2009. She noted that one stated that there was insufficient information to reach a conclusion. She remarked that original bill had been redrafted with some fundamentally different structures and advised that it be reviewed afresh by the assessment teams.

Ms Ntuli clarified that dti’s relationship with the independent service provider was governed by the contract they entered into, and the Department wanted to respect that contract. She said the independent assessment team that worked on these reports could be brought in for engagement by the Committee, but she could not coordinate the entire team for this meeting. She said the confidentiality was due to the terms of the contract with the independent service provider.

Mr Harris said he still had unanswered questions, but accepted Ms Ntuli’s invitation to engage with the assessment team. This would enable the Committee to bring them up to date on the new draft Bill.

The Chairperson agreed with Mr Harris by saying that she thought it would be a good idea to accept Ms Ntuli’s offer to engage the team. She hoped this could happen soon, even if it was just a small representative of the team.

Ms Ntuli said she would try to get the team together for the Committee to engage with.

Mr Harris said a representative should be present for each report, IP8 and IP9.

Mr Netshitenzhe answered Mr Mabaso’s question, saying that the costs referred to were those incurred by the state in implementing the Act.

A director from dti said that RIA needed to start in the initial stages of the policy process, but they were not instructed to conduct RIA until later in the process. It would have been a futile effort to go back and start from the beginning. There were side engagements in the process as well, such as considering how much current trusts were costing the government.

Ms Ntuli said the process of assessing the Bill’s impact was not over, and if the revised version significantly deviated from the original, they could conduct another analysis. The issue here was timing, and further noted that after the Bill’s enactment, analyses would be conducted three, five, and ten years after becoming law, as was the standard for all legislation.

The Chairperson asked Mr Gcwabaza if all the questions had been answered.

Mr Gcwabaza said they had been but he wanted clarification as to what teams dti was referring, and whom they intended to bring to a future meeting. He would not have an issue with representatives from the Treasury or Presidency coming, but did not feel the same about the independent service provider. He also suggested that the Committee highlight the areas of concern for the representatives to address rather than have them consider the report as a whole. He felt that this would indicate that the Committee did not trust dti’s report.

The Chairperson said she did not see the point in moving further with the Bill at the moment. However, she said the Committee’s concerns needed to be addressed speedily.

Mr Alberts said he had not officially received the WIPO 2009 report.

The Chairperson said she was almost certain that report had been received. The only outstanding report was the response from WIPO to the Committee’s letter. She had received initial notice that they received the letter, and when the response arrived it would be distributed accordingly.

Mr Harris sought verification that representatives from each of the assessment reports would be attending a future meeting.

The Chairperson responded that dti would pursue this request in a proper manner, and asked Ms Ntuli if this was correct.

Ms Ntuli said that the WIPO document referred to by Mr Alberts’ was not submitted directly to dti as it should have been, but that they did receive a copy from Mr Harris. In regard to the assessment reports, she said that the Committee’s guidance was important, but she felt they should engage with the independent service provider.

The Chairperson said the Committee clearly stated they did not want to engage with the independent service provider. She said she welcomed the transparency from dti.

Mr Harris once again called for representatives from both assessment teams to engage with the Committee.

The Chairperson cut Mr Harris off, saying the Committee’s request could not have been clearer.

Mr Selau said he felt the Committee and dti made their positions very clear, but he asked that the entire team be present at the meeting.

The Chairperson said she was not going to change the request, which was to have at least one representative from each team. She noted that banking input had been received.

Committee Programme
The Chairperson said the program called for the oversight report to be looked at and adopted on 24 August. She noted the Trade Law Centre Conference and invitations were also on the program. The venue was announced to be at the Waterfront. For the minutes, she said the matter had been put off twice and said they would be considered and adopted at the next meeting. She asked Mr Gcwabaza if this was fine and she instructed the Committee to close the meeting and commence the working group session, which was to consider the gambling legislation.

The meeting was adjourned.


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