The Subcommittee approved the decisions reached on the Copyright Amendment Bill flagged clauses which it will present to the Portfolio Committee. The decisions were:
Clause 2 concerns were resolved and it was agreed that interface specifications are excluded from copyright.
Clause 3 was resolved and it was agreed that clause must be removed and section 5 of the Principal Act must be retained.
Clause 5: DTI has to still come up with a proposal to substitute the word “transfer”. As for the 50/50 split in royalties, Members proposed and agreed that the mechanics on how the split will happen in the value chain should be referred to the technical experts.
For “transfer” DTI presented three options: it can either be removed or changed or defined in the Bill.
Clause 7: The constitutionality of Section 7B on the possible retrospective application is yet to be reported to the Subcommittee.
Section 7B(3)(a)(i) was resolved and Members agreed that a person should be legally resident to be entitled to this right. A suggestion was raised that the exclusion must be very narrow.
Section 7C(2)(b) consensus was reached on the need for a transitional provision for words and phrases in the Bill that refer to the Intellectual Property Laws and Amendment Act (IPLAA) as these were subject to the commencement of IPLAA.
Clause 11 dealing with section 9A(10)(aA)(i) has not yet been resolved because it was agreed that technical experts should be tasked to propose a better process for a mechanism for the payment of royalties for sound recordings.
Ms L Theko (ANC), Subcommittee Chairperson, acknowledged the presence of the Departments of Trade and Industry and of Arts and Culture. The Subcommittee would consider its report on its deliberations on the flagged clauses of the Copyright Amendment Bill.
Adv Van Der Merwe, Senior Parliamentary Legal Advisor, presented the Report:
• Clause 2
The original concern was this appeared as if copyright did not cover computer programs. DTI indicated that "interface specifications" were made freely available to the public; thus cannot be subject to copyright. The Committee agreed that only interface specifications are excluded.
Members sought clarity on remedial actions when a speech or a public figure or any person is misquoted. DTI indicated that if a person is misquoted, they can direct their concerns to either the Press Ombudsman or the publisher.
• Clause 3 amending Section 5
The phrase “funded by” must be removed because the clause was highly contested during the public hearing and the submissions proposed that it must be removed. Members said the clause must be removed and section 5 of the Act must be retained.
• Clause 5 inserting Section 6A
The concerns were about the words “transfer” and “half” but the main concern was on contractual freedom.
- DTI indicated that it would re-look at the word “transfer”, and this was to by Members.
- On the 50% split in royalties, Members were concerned about its impact on contractual freedom. It was proposed that to protect artists the first step should be the requirement for an agreement between the parties. Failure to reach an agreement, the fall-back position would be a 50% split between the parties. The Subcommittee agreed this matter must be referred to experts to assist on how artists can be protected.
- The Subcommittee agreed that there must be provision for a contract template in the Bill.
Later in the meeting, Mr Radebe asked about DTI's progress on replacing the word “transfer” in clause 5 as well as if any work had been done on the contract template.
Dr Masotja replied that DTI had looked at “transfer” and devised a definition for the word to ensure consistency in the legislation. Another option was using “tenure” as a substitution. Another option was a separation of transfer from royalties.
In response to Ms Theko asking when the Committee could expect a response, Dr Masotja said that these options were presented for the Committee to consider the best option.
Mr D Mahlobo (ANC) suggested when people are tasked they should come back with a concrete response to avoid discussing the same issue for a long time.
• Clause 7
The concern with this provision was whether the resale royalty right was not restricting contractual freedom. DTI indicated that the right was not for all artistic works but limited only to the visual arts. DTI was tasked to look at the constitutionality of applying this retrospectively to resale and report back.
The concern was if an illegal resident could be eligible for the resale royalty right. DTI said that for this provision to be applicable, a person must first adhere to the minimum requirements of residency. However, a Member suggested the exclusion must be narrow. The Subcommittee agreed that the person should be legally resident provided the concern on international human rights agreements was taken into account.
As IPPLA is not yet operational, the Subcommittee agreed to a transitional provision noting that the terms and phrases relevant to IPLA are subject to the commencement of IPLA.
• Clause 11
The concern was about the cumbersome process for royalties on sound recordings. It was agreed to consult the technical experts and report back to the Subcommittee today. Standard terms and conditions should be effected and the section should be worded properly.
In response to the Chairperson asking DTI if it agreed with the Report, Dr Masotja said it agreed.
Mr B Radebe (ANC) thanked Adv van der Merwe and DTI on the work done. The Subcommittee would be able to present a credible report to the Portfolio Committee. The Subcommittee should adopt the report as a true reflection of what transpired in the previous meeting.
The Subcommittee adopted its Report and the Chairperson said the Subcommittee will report to the Portfolio Committee and it will guide the way forward.
The meeting was adjourned.
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