Performers' Protection Bill: briefing; Advisory Centre on WTO Law Agreement: ratification

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Trade and Industry

21 February 2017
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The Performers Protection Amendment Bill sought to address challenges facing the creative industry from non-payment of royalties; as well as lack of formalisation of the industry which exposed it to abuse, and piracy. The Bill was informed by various treaties. Issues introduced by the Bill included transfer of rights; equitable remuneration; consent for the use of performer’s work; and collecting societies for audio-visual performances. The Portfolio Committee (PC) was asked to consider ratification of all treaties relating to the Bill, and to legislate with the aim of making collecting societies statutorily regulated. The PC was asked to engage with the PC on Communications on the issue of local musical content being 80 percent for public broadcasters, and 60 percent for private broadcasters. It was also asked to foster coordination of enforcement agencies to deal with piracy and counterfeiting.

During the discussion, all parties agreed about the need for ratification of treaties associated with the Bill and the need for a road map and timeframes relating to that. There were calls for moving away from a silo approach to a coordinated and expanded Bill process. Consultation with artists was emphasised. There were questions about enforcement of legislation; unions for artists, and the protection of the rights of artists’ children. The DA challenged the DTI about so-called insinuations and innuendo to the effect that all who opposed the DTI were labeled propagandists. A DA Member remarked that the DTI had a legislative attitude of telling people what to do. The issue at stake was the requirement of 80 percent airing of local musical content by public broadcasters, and 60 percent by private broadcasters. The ANC countered that the DA was being opportunistic. The DA asked what the DTI’s response to submissions had been. It also questioned the DTI on its statement about live musical performance dying out. However, all parties agreed that ratification of treaties and the Copyright Amendment Bill had to precede the Performers Protection Amendment Bill. A motion of desirability was adopted, but the Chairperson pronounced that formal engagement with the Bill had to be deferred.

The DTI requested in a second briefing that the Portfolio Committee (PC) consider and approve South Africa’s accession to the Advisory Centre on World Trade Organisation Law (ACWL), which was an independent, impartial and non-political source of legal advice. Its mission was to provide developing and least developed countries with the legal capacity to take full advantage of World Trading Organisation (WTO) benefits. Free legal advice on and training in WTO law was provided to developing and least developed countries. Cabinet approved the submission of Protocol to Parliament in November 2016. Financial implications were limited to a once-off contribution and funds were already budgeted for that purpose.

The Committee showed readiness to approve the Protocol. It was agreed that there could be benefits to industrialisation, and that free legal support could save money. There was a question about the once-off contribution. The Committee approved the Protocol and agreed to recommend it to the House for approval.

Meeting report

Introduction by the Chairperson

The Chairperson asked if all Members had hard copies of the briefings, as there were problems with the power point technology, which would in due course be rectified. Apologies were received from Mr Williams, for medical reasons, and Mr Alberts, for party political reasons. She welcomed Ms Tom, the Chairperson of the Arts and Culture Portfolio Committee, and Mr Rabotake, a Member of that Committee. She welcomed the DTI.

Department of Trade and Industry briefing on the Performers Protection Amendment Bill

The briefing was presented by Mr Macdonald Netshitenzhe, acting Deputy Director General: Consumer and Corporate Regulation Division; and Ms Meshendri Padayachy, Deputy Director: Intellectual Property Law and Policy. Intellectual Property (IP) was divided into two categories, namely industrial property such as patents and trademarks; and copyright for literary and artistic works. The Performers Protection Amendment Bill sought to address challenges facing the creative industry from non-payment of royalties; lack of formalisation of the creative industry which exposed it to abuse, and piracy. The Bill was informed by various treaties. Issues introduced by the Bill included transfer of rights; equitable remuneration; consent for use of performer’s work; and collecting societies for audio-visual performances.

The Portfolio Committee was asked to adopt the Bill as it conferred rights to the vulnerable, and to consider ratification of all treaties related to the Bill. Consideration for legislation should be done with the aim of ensuring statutory regulation of collecting societies. The Committee was asked to engage with the Portfolio Committee on Communications on the issue of making local musical content 80 percent for public broadcasters, and 60 percent for private broadcasters. The Committee was also asked to foster coordination of enforcement agencies to deal with piracy and counterfeiting.

Discussion

The Chairperson told Members that they were fortunate to have been in a workshop, which would be followed by the current briefing. She asked for comments and questions of clarification from Members. She gave Ms Tom, Arts and Culture Chairperson, the opportunity to speak first.

Ms Tom (ANC, Chairperson of the Portfolio Committee on Arts and Culture) remarked that it was a good time to discuss the matter at hand, as February was language activism month. Everyone was encouraged to speak in their mother tongue, and to both speak and live the language. Portfolio Committee on Arts and Culture was of the opinion that language was connected to culture. To run from a language was to run from a culture. As the welfare of artists was within the Committee’s mandate, it had to oversee what the DTI was doing in that respect. The Committee therefore, needed timeframes. It was difficult to monitor the stories being told by the Department.

She asked about a road map and how long it would take. The PC on Arts and Culture required access to information it would need when the Bill was taken to Cabinet. An end to the silo approach was necessary. Artists were not organised. The challenges of working together were understood. The current process was more about the artists than the government. It was therefore, important to take them on board. Consultations should be held with the artists, and a meeting should be held with the Deputy Minister.

It was concluded that all stakeholders had to be in one room before there could be movement forward. Separate discussion would not be adequate. If the process was flawed the product would be flawed. Artists had to be consulted.

Discussions were ongoing with the police on the need to develop a plan to combat piracy. Artists were feeling the pinch, but were seen as criminals when they fought for their rights, which resulted in their loss of confidence in the police. Timeframes had to be set. It was important to give artists the needed opportunity to be heard. Such process would require coordination.

It would be good if artists could begin to feel benefits by the end of the year.

The Chairperson remarked that her Committee aspired to expand the way legislation and issues were dealt with. Things had to be opened up against an almost prevailing solo mentality. Mr Manamela could be brought in, as well as the Department of Planning, Monitoring and Evalauation (DPME), for constructive engagement. She welcomed Mr Grootboom from the PC on Arts and Culture.

Ms Van Schalkwyk (ANC) said that it was comforting to know that Ms Tom insisted on timeframes. There had been a lot of suffering, and there still was. She enquired about the progress of creating unions for artists, and if there was a need to transform collecting societies. The current form of these societies did not assist performers. It was regrettable that the Department was limited in scope. She also wanted to know why the societies (***I think) were restricted to actors and musicians.

There were people whose IP for medication was stolen in her province. She asked if the Department of Science and Technology (DST) would have to be waited on to run it (***not sure how to rephrase this). She asked about progress away from working in silos.

Ms P Mantashe (ANC) noted that enforcement of legislation was a challenge across departments. She asked if the DTI was aware of other ways to ensure that there was effective monitoring of enforcement.

Mr B Mkongi (ANC) welcomed the briefing, noting that attending to the matter at hand was long overdue. Vulnerability of actors and musicians should have been discussed since 1994. There were still complaints about lack of coordination between departments. People had to be given what they deserved. He liked the 80 percent and 60 percent arrangement of airing local musical content.

The shortcomings in distribution of royalties affected the families of artists, leaving such families destitute. He asked for the position of the Bill on protecting the children of artists who had not benefitted from their work. Channel 161 was showing repeats of films made in 1971. He asked if the people who acted in those films were known and if royalties had been relayed to their families. No mention was made of the historical damage that had been done. He also asked for an explanation on why South Africa was only a member of one treaty, as well as the process of ratifying treaties.

Mr N Koornhof (ANC) said that it would be difficult to adopt the Bill if South Africa was not a member of the treaties. He asked about timeframes to get the Bill through Parliament.

Mr Macpherson expressed his disappointment in the insinuation and innuendo that accompanied Mr Netshitenzhe’s comment on those differed on the Bill. It showed that opposition was being treated as propaganda, and this was irresponsible.

The Chairperson asked Mr Macpherson to enlighten her, as she could not recall hearing the word propaganda.

Mr Macpherson replied that it was used four times. It was Mr Netshitenzhe’s objective to paint those who differed from the Department as propagandists. It was not responsible to say that the Department had to be trusted. People had the right to differ. He asked for a definition of the Tribunal and what powers were conferred on it. There had to be a question mark behind participation in the Bill process. Elements were taken from the treaties and inserted into the Bill. He had seen submissions to the Department. He asked for what had been taken from what was labeled propaganda. Copies had to be made available to the Committee.

Mr Rabotake, Member of the PC on Arts and Culture, wanted to know what had been done about cultural heritage. It would be inappropriate if only a few artists were helped. South Africa had a rich cultural heritage. There was a tendency to only select according to the demands of the moment. There had to be a holistic approach.

The Chairperson asked who had been left out.

Mr Rabotake replied that choir music was an example.

Mr G Hill-Lewis (DA) noted that Donald Trump had the attitude that criticism against him was propaganda. The DTI had a legislative attitude of telling people what to do. South Africans would be told what music they could listen to. He personally listened to local and foreign music, not bothering about the source of such music. He was a fan of jazz and when he listened to a jazz station, they would not be playing louis Armstrong or Miles Davis because only 20 percent would go to them (***I’m not sure of what the point here is). People had to make decisions based on the free market. Stations like 5 FM and Lotus were on the brink of bankruptcy. People would listen to whatever station they choose.

The Chairperson did not agree that the DTI was legislating private lives. People could purchase what they wished to. The Bill was currently with the Committee, and no longer with the DTI. When the Committee was done with it, it would reflect the Committee’s idea, and that of the PC on Arts and Culture. The fact that all were South Africans was pertinent.

In responding to Ms Tom, Mr Netshitenzhe said that the issues she raised would be taken up and addressed appropriately. Ms Tom referred to timeframes, which was a concern to both the Department and the Committees. He agreed that there should be no silo approach. Education and awareness were important. Consultation with artists was indeed overdue. It should have been done in 2002, but at that point, it was only the so called needle time that was dealt with.

The SABC was asked if it dispersed royalties to people like Mahlatini. There was much consultation during which artists were encouraged to become members of collecting societies.

In terms of the ratification road map, it was pointed out that Articles from treaties were included in the Bill. People insisted on ratification during consultation. Articles were taken from the treaties, which meant that the ratification process had started. Language used in the Bill had to be in tandem with the treaties. The Department of International Relations and Cooperation (DIRCO) would also come into the picture. The State law adviser had to clarify whether treaties would conflict with elements in the Bill after being ratified. It was only after such clarification that there would be liberty to pronounce, and advise on the taking up of the ratification instrument.

Ms Tom asked how long ratification would take.

Mr Netshitenzhe replied that it could be done by the end of the financial year.

The Chairperson referred to timeframes in terms of departmental work. The department was asked to report back to the Committee in clearer terms.

Mr Netshitenzhe replied that the Department would do so.

In responding to Ms Mantashe’s question on collecting societies, he said that Art organisations were assisted to form collecting societies. They had to work in tandem with workshops in all provinces, and education. A knowledge of legislation was necessary, otherwise people ran the risk of being captured by lawyers. People were educated that unity was power. IP was broad and sometimes based on geography and trademarks. The name of the artist was the brand. Nestle had worked with indigenous groups on syrups that boosted the immune system. The Department of Environmental Affairs asked if the genetic resources were disclosed. A patent could be nullified if there was no consultation with indigenous groups about benefits. Currently, the focus was only on performers. In the case of choirs, someone wrote the music, some danced. The Bill covered choral music. Judgements were given in the Tribunal, but DTI inspectors did not have the capacity to deal with piracy. However, capacity was being built. The delays experienced were as a result of magistrates not being educated. Workshops were held with them (***not sure who ‘them’ refers to). People received penalties, admitted guilt and went back to do the same thing. Some had received five-year suspended sentences. It was therefore, necessary for work to be coordinated with SARS and the National Prosecuting Authority (NPA). The police and judges had to be educated and made aware. An interdict was part of enforcement.

In response to the issues raised by Mr Mkongi, it was pointed out only needle time was dealt with in 2002. As far as coordination was concerned, the DTI would work with the Committee as bureaucrats PC. It was impossible to legislate backwards, unless the music was still being played. The DTI would respond in writing about treaties.

In terms of the issues raised by Mr Koornhof and Mr Macpherson, it was pointed out that people wrote articles and talked on the radio without inviting the DTI. It was unfair that conclusions were being reached without allowing the DTI to supply correct information. The Tribunal used judges to preside over IP cases, but there were backlogs because of a lack of presiding officers. A recent case relating to needle time took three to four years to conclude. Advocates could be used in areas where a judge could not preside.

In response to Mr Rabutaki about selectiveness in relation to cultural heritage, it was pointed out that the DTI had to act within its mandate, and not intrude on the mandates of others. Choir music could present a problem in the sense that some choral songs were taken from churches. Patriotism was not only a matter of loving South African music. Besides, it also made economic sense. Broadcasters were not playing local songs. Foreign public institutions were not playing South African music. The Farlam Commission said that there had to be a condition to convey communication to the public. The Independent Communications Authority of South Africa (ICASA) was not to grant a license to a telephone company to use a musical ring tone if royalty was not paid. The DTI aimed to translate IP into economic rights.

Ms Padayachy replied that treaties were drawn on (***not sure what this means). Language and legislation had to be complied with a treaty before such treaty could be acceded to. Some treaties were not enforced at the World Intellectual Property Organisation (WIPO). 30 member nations were needed for a WIPO treaty to be enforced. The Bejing Treaty was not enforced, and the Marakesh Treaty only came into force in the previous year. Treaties were not internationally enforced, hence South Africa was not that far behind. In the meantime South Africa was preparing its legislation for that inevitability.

She talked about the role of submissions, noting that there were 115 written submissions when the first draft policy was published in 2013; while there were 122 submissions when the Copyright Amendment Bill was published in July 2015. The mandate of the DTI was to present on the Performers Protection Amendment Bill. The Department was very clear in explaining the different forms of intellectual property, and why there was separation of the Copyright Amendment Bill and the Performers Protection Amendment Bill. Some of the issues fell within the Copyright Amendment Bill, which was yet to be brought before the Committee. Submissions on the Bill published in July 2015 queried the merging of issues together. Hence, those issues were separated. A distinction was drawn between the Intellectual Property Act, which was the main Bill, and the Performers Protection Amendment Bill. The Bill was the result of public consultation. The Tribunal sat in terms of the Copyright Act. Its terms of reference were within that Bill. A repeat fee was charged every time SABC and channel 104 played reruns of Isidingo. However, the act of selling Isidingo to Argentina was exploitation. The two rights and royalties were yet to be paid to performers. Performers signed their IP away in contracts. Repeat fees could not be extracted from broadcasters, as there was no structure.

The Bejing Treaty prescribed four categories under which royalties could be collected. It was necessary to move away from sole dependence on contracts where performers had possibly sold away those rights. Four economic rights existed and commercial exploitation of repeat fees was part of them. The DTI was considering doing away with the current systems of repeat fees and royalties, and replacing such fees for those collected under the four Bejing categories. A performer would receive compensation for a product sold overseas. In terms of the Intellectual Property Act, the principal form of income for a performer was either a live performance (which was dying out) or radio. The Copyright Commission report made mention of a tariff. In the instance where the percentage of tariff paid was 10 percent, South Africa was one of the lowest in the world. A court judgement existed to the effect that the three percent had to be increased so that people could get an income.

Ms Mantashe remarked that anyone who attacked the DTI whilst pretending to care about issues to be redressed was an opportunist. The DA claimed to be fighting for redress of the previous dispensation, but when the DTI tried to do so they were attacked. The ANC was not surprised, since such attitude was part of the DA.

Mr Macpherson replied that Ms Mantashe was doing the same thing Macdonald (Mr Netshitenzhe) was doing, just in a different way. People were learning from Donald Trump.

The Chairperson asked that he refer properly to him as Mr Netshitenzhe.

Mr Macpherson replied that he would adhere to that, but wished to repeat what he had said about Donald Trump. He asked Ms Padayachy about the splitting of the two bills. She already stated that submissions informed the splitting of the two Bills. He asked why the Performance Protection Bill was introduced first; and why the Bejing provisions were inserted, if SA could not stake a claim for revenue because it was not a signatory. Introducing the Performers Protection Bill first, instead of waiting until South Africa became a signatory to the treaties seemed like putting the cart before the horse. The proper step would be to ensure South Africa was a signatory to the treaties, introduce the Copyright Bill, and finally, the Performers Protection Bill.

Mr Hill-Lewis said that anyone who criticized was seen as being unpatriotic. The DA would not be intimidated by Trump politics in the Committee.

The Chairperson asked that Mr Trump not be involved.

Mr Hill-Lewis continued that he disagreed about live music dying out. There was a proliferation of live music in bars, and many live performances elsewhere. He sought clarity on what the 3 percent was a percentage of.

The Chairperson asked that written responses be submitted to the Committee by the morning of the coming Thursday. Hard and soft copies of the documents should be made available. She proceeded to raise a motion of desirability, which meant that the Committee had to comment on whether the legislation was desirable pursuant to the new rule set out on page 172, clause 6(b) on adopting a motion of desirability.

Ms Mantashe proposed the said motion of desirability and was seconded by Ms Van Schalkwyk.

The Chairperson said that she could then speak formally. She had studied the legislation, and found that it referred to a Bill that was yet to be brought before the Committee, which could pose problems. It was possible that the Copyright Bill might not come before the Committee, although it probably would. However, she expressed her desire to go see the Copyright Bill on its way to Parliament before engaging formally with the Performers Protection Bill. She believed that even though the Copyright Bill would reach the Committee, it was not guaranteed. She would therefore like to delay the process. The Committee could have discussions about the Bill, but was not to embark on formal engagement with it.

Mr Netshitenzhe was asked to supply documents need to expedite the other Bill.

DTI: Ratification of the Protocol of Accession of South Africa to the advisory centre on World Trade Organisation law

The briefing was presented by Ms Lizell Reinecke, COO: International Trade and Economic Development Division. The purpose of the briefing was to request the Committee to consider and approve South Africa’s accession to the advisory centre (ACWL). The ACWL was an independent, impartial and non-political source of legal advice. Its mission was to provide developing and least developed countries with the legal capacity to take full advantage of WTO benefits. Free legal advice on and training in WTO law was provided to developing and least developed countries. Cabinet approved that South Afica become an ACWL member on 26 August 2015. Cabinet also approved that the protocol be submitted to Parliament for ratification, in November 2016. Financial implications were limited to a once-off contribution. Funds were budgeted for that purpose. Free legal advice would enable South Africa to fully utilise industrial development tools, without violating WTO rules and opening itself to legal challenge.

Discussion

The Chairperson noted that there was approval by Cabinet in August 2015. It had to go through the general assembly and was only approved in 2016. The process took 14 months. She asked Members to make recommendations on the ratification and not merely rubber stamp it before taking it to the House.

Mr Mkongi remarked that the presentation was very clear. Adopting it would not be rubber stamping, as the Committee wanted the ratification. It was linked to trade agreements with other countries, with benefits to industrialisation. Other countries had acquired new terminologies and technologies and South Africa did not have the muscle to fight them. He urged the Committee to move for ratification endorsement as a Committee and present it to Parliament.

The Chairperson said that the cost of disputes was onerous to South Africa. The ratification provided an opportunity to reduce costs quite considerably. Support could be extremely costly. Article 8 dealt with priorities in the allocation of support in dispute settlements proceedings. If two countries were entitled to support in a dispute settlement, etc., and were involved in the same proceedings, support would be granted in terms of the following priorities: least developed, members accepted in the agreement, and members who ceded to the agreement. The General Assembly would adopt regulations on the allocation of support in WTO dispute settlement proceedings that reflected those priorities. Signing of the ratification could assist South Africa financially in raising issues in WTO disputes. It would cut across regulations for financial support. The country could have access to international legal support. She asked if there was only an accession fee, and if that was the only payment other than paying own people to go overseas.

Ms Reinecke replied that there was a once-off fee, and thereafter a modest fee levied by the ACWL. It was based on hourly rates. In terms of South Africa’s B classification it amounted to 300 Swiss francs per hour. It was still far less than if South Africa had to appoint Counsel. There was a schedule of what could be charged.

The Chairperson noted that there were 33 developing country members. The protocol supported South Africa. There was a multi-lateral system and equity.

She read out the formal statement to the effect that the Committee had considered the protocol, and recommended that the House approve the protocol in terms of section 231.

Mr Koornhof moved the motion for approval and was seconded by Mr Mkongi.

The Chairperson thanked Members. The recommendation would be ATC’d.

 

Mr Hermans told members that there would be a consideration of the first draft oversight report and the adoption of minutes on Thursday, 28 February 2017.

 

The Chairperson concluded that her decision to delay the Performers Protection Amendment Bill implied that the Committee programme had to be revised. There would not be any Friday meetings during February. There could be a meeting on 24 March, which would be a long Friday. It would be confirmed on the coming Tuesday.

 

The meeting was adjourned.

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