Call for Comment on Specific Clauses
The Committee completed deliberations on the current draft of the Copyright Amendment Bill and specific clauses of the 14 June Bill would be advertised for public comment until 9 July 2018.
Three main areas had been flagged the previous week on the Copyright Amendment Bill: retrospectivity of the royalties; commissioned works and orphan works, and penalties for non-compliance and infringements of copyright. The Committee did not accept the recommendations by the Department of Trade and Industry that it would be unwise to make the payment of royalties retrospective. DTI argued that there might be unintended consequences, and there were too many factors to take into account consistently and accurately, which meant that the clauses could be legally challenged. The Committee was adamant that redress for those who had not been paid royalties in the past was an essential part of the Bill and that DTI would have to find a way to make it happen.
A final decision was not made on the way in which copyright would be handled for commissioned and orphan works. The parameters for how long a work could be ‘shelved’ could not be agreed upon. The Committee decided that, as the clause would be advertised for public comment, Members would allow public comment to inform their decision. Penalties for infringement and non-compliance were provided for separately in the Bill, with the infringement clause allowing a more lenient penalty for first offences. Should there be non-compliance in registering the use of material or failing to submit a report, artists or originators would not be able to claim royalties due to them. Penalties for those offences were contained in clause 11: a fine or imprisonment for a period not exceeding five years or to both a fine and imprisonment, or, if the convicted person was a non-natural person such as a company, to a fine or a minimum of 10% of its annual turnover.
Penalties for infringement were divided into a first offence and second and subsequent offences. The penalty was for each article to which the offence related. In the case of a first offence, a person would be liable to a fine or to imprisonment for a period not exceeding three years or to both a fine and imprisonment; in the case of a non-natural person, the penalty was a fine of a minimum of 5% of its annual turnover. For a second or subsequent offence, a person was liable to a fine or to imprisonment for a period not exceeding five years or both; if the convicted was a non-natural person, the penalty was a fine or a minimum of 10% of its annual turnover.
Some Members of the Committee did not support the penalties as they believed that a minimum of 10% of a company’s turnover was excessive and could destroy the industry. The majority of the Members believed that the only way to remedy the years of non-payment of royalties was to be tough on offenders. It was decided that the Committee would await input from the public before making a final decision on the penalties. Other amendments made were for clarity or technical amendments.
The Committee concluded deliberations on the Copyright Amendment Bill for this phase and the selected clauses would be advertised the following week for written comments by the public.
The Committee Report to its Sugar Industry Oversight was finalised for submission to the National Assembly emanating from its visit to sugar cane farmers and sugar industry associations. The Report had been completed after the presentation by DTI and the South African Sugar Association two days previously. The Report gave time limits for various reports that had to be submitted to the Committee. The first plan for immediate transformation actions had been received. A timeframe had to be given for the amendments to regulations which would regulate access and payment to sugar mills by small farmers. It was recommended that the Sugar Act amendments should be completed within 12 months of the commencement of the new administration in 2019. Other recommendations addressed infrastructure such as roads and access to water; the review of sugar tariffs and the feasibility of developing downstream industries for alternative markets.
Five Members of the Committee had been on a study visit to the United Kingdom to understand how matters relating to the 'Debt Intervention' Credit Amendment Bill were dealt with in that country. The Chairperson noted that Members had learned a great deal on that study tour. She noted that even in the UK, the enforcement agency did not have the capacity to do more than take a random approach to monitoring but it ensured that all institutions were monitored at least once every two years. Members were impressed by how well-trained consumers were in financial literacy and financial management. Pamphlets were distributed regularly to ensure that consumers were kept abreast of financial issues. The Committee made recommendations intended to improve the standard of financial literacy and management in South Africa. The Committee Report also urged the Minister to expedite the review of the National Credit Act.
The Chairperson opened with a few general comments at the end of a very busy quarter. She referred to the style of operation within the Committee. No matter what personal opinion Members had of those over whom they had oversight, it was important to respect people and to treat them with dignity. She wanted the Constitution observed by everyone in the Committee, herself included. She thanked everyone for working so hard.
Mr D Macpherson (DA) asked to add parliamentary communication to the agenda. He expressed concern about the statement that had gone out on behalf of the Committee congratulating the CIPC on its new digital financial recording system. Statements could not be put out on behalf of the Committee when the statement had not been discussed in the meeting. Statements could be made as coming from the Chairperson or the ANC study group, but not on behalf of the entire Committee.
The Chairperson responded that she would continue to issue statements about things such as launches as those were not substantive matters.
Mr B Radebe (ANC) stated that, as the Chairperson, she had the right to put out statements on behalf of the Committee.
Mr S Mbuyane added that the agenda had already been adopted and so the matter could not be entertained. It was the Chairperson‘s right to communicate whatever she wished about DTI and its entities over which they had oversight.
The Chairperson stated that she believed that amendments came after the adoption of the agenda.
Mr Radebe said that there was no agreement that it should be on the agenda. Members wanted to get on with the meeting as there was soccer that afternoon and, while it might not be important to some people, he and his colleagues wanted to watch the game. Soccer was just as important as rugby.
Mr Macpherson read out the committee media statement to which he was referring.
The Chairperson noted she had said that the item was on the agenda. She would not entertain deliberations at that point.
The Chairperson welcomed Department of Trade and Industry(DTI), Department of Arts and Culture (DAC), Companies and Intellectual Properties Commission (CIPC), and State Law Advisor Office.
Copyright Amendment Bill
Dr Evelyn Masotja, DTI Deputy Director-General: Consumer and Corporate Regulation, presented responses to the flagged clauses DTI had to respond to. Three main areas had been flagged: retrospectivity of royalties; commissioned works and orphan works; penalties – examples and recommendations.
1. Clauses 4, 6A, 7A, 8A :Retrospective payment of royalties
DTI did not support a retrospective approach as it might have unintended consequences. However, DTI supported the intentions of supporting those artists that had not benefitted to date. There had been different Acts in the past and different royalty rates so there were too many factors to take into account consistently and accurately, which meant that the clauses could be legally challenged. Also, how far back would one go? DTI wanted to look forward, ensuring that there would be no abuses in the future. DTI’s recommendation was subject to the Committee’s view. It might that some artists would be found and others not and then it would relate to orphan works. If the Committee wanted to be retrospective, it would be necessary to link the above clauses to orphan works as well.
2. Clause 22: Commissioned works
DTI had requested a legal opinion on commissioned works. The general understanding about commissioned works was that the one who commissioned was the one who owned. The question was: how was the author to be treated? Some countries like UK, Australia, Canada were more generous to authors than most countries as the first owner of the commissioned work was the author, unless there was a written contract stipulating otherwise. South Africa was unique as there were very few broadcasting associations and one might need to look at the area differently from other countries. SA had only three Broadcasting Organisations: SABC, MultiChoice and ETV. Actors, especially those in “soapies”, such as Generations, Uzalo Rhythm City, Backstage and Scandal might lose work if the ownership lay with authors and not with the commissioners. With commissioned works, there had to be clarity around employment as the ownership vested with the employer if an employee expressed a creative effort as an employee.
If a commissioned work was not commercialised, or was shelved, the author could approach the Tribunal which could intervene and provide the author with a licence to access the work. If the work was used for purposes other than what it had been commissioned for, the author became the owner. That was similar to what was in the Bill, and DTI supported that view. That should be advertised for public comment.
Mr Macpherson asked the Chairperson for an opportunity to discuss the issue as it was critical.
The Chairperson agreed that a decision had to be made.
Mr Macpherson stated that on the face of it he agreed that there had to be recourse for an author whose work was not used for the purpose for which it was intended when commissioned. However, the wording for inclusion in the Bill was different to the policy proposal. The second bullet defined when the commissioned work had to be broadcast or whatever the case might be. There might be an indefinite delay. Mr Macpherson wanted the period for which the work could lie dormant to be specified, for example, 12 months. He wanted specific timelines for when the work should be used for the agreed purpose.
The Committee did not want an argument concerning what a “reasonable” period of time would be.
The Chairperson reminded Mr Macpherson that the clause was one of those going for public comment, so the question was if there would be any value in going over it again before the public comment stage. Those clauses that were new and had not been advertised had to be advertised. The Committee had been over the clause a number of times and the Chairperson suggested that, if the Committee agreed in principle, then there was no need to debate it endlessly at that stage. She did hear what he was saying about re-wording the clause.
Mr Radebe agreed with Mr Macpherson that the parameters were important, but the Committee needed the opinions of the public and those involved in copyright. The support staff had to alert certain specific institutions that the sections were being advertised so that they did comment. The Committee could not decide on behalf of those people. After the comments had been received, the Committee could go back to the nitty-gritty of the clauses.
The Chairperson agreed with Mr Radebe that interested person and institutions had to be alerted when the clauses were advertised. That was the usual practice and it was important that it happened.
Mr Mahlobo agreed Mr Radebe. It was a matter of principle and the amendment was not going to be the panacea for every part of the work. The legislation could not address every instance but should contain overarching principles to guide engagements in that particular field. The Committee had to remember that the legislation was not for themselves but for the people and Members should not make assumptions about what the people wanted. On the basis of their responses, the Committee could make decisions that would be rational and cogent, and the Committee could ensure that all the mechanics were in place. The Committee should advertise the specific clauses for public comment for a reasonable period.
Mr Macpherson was happy for it to go for public comment as the policy intervention and the proposed wording was not the same. He agreed that an author should get a licence to broadcast a commissioned work etc., but the Bill said that the author would become the owner of the work, which was different from the licenced position. If it was advertised as it was currently, the meaning would be different, and authors would assume that the Tribunal would make them owners of the work.
Ms Theko agreed but there was a need for a balanced approach and the Bill needed to recognise the author’s rights and the use of the Tribunal. She wanted it to be advertised as it stood. She supported what Mr Radebe and Mr Mahlobo had said but she understood the point made by Mr Macpherson.
The Chairperson asked Adv van der Merwe if she could clear up the issue.
Adv Charmaine van der Merwe, Parliamentary Law Advisor, said that the proposal by DTI on the slides was different from what they had crafted together in the Bill. The author became the owner if the work was not used. In law, it was necessary to stop the position and then create the new position. They had crafted clause 22 - Section 21(c)(3)(a) on page 31. When a person commissioned a work, that person would have a limited copyright dependent on the purpose of the work as agreed in the contract, for example, a portrait for over the fireplace was fine but if the owner wanted to sell it, the purpose changed. If SABC commissioned a work for broadcast but shelved it, the owner could go to the Tribunal and the Tribunal would ask why it had not been used, how long the SABC had had the work, etc. If the SABC said it would be used the following year, it would remain the copyright of the SABC. The wording was not perfect but there could be improvements after public comments had been submitted.
The Chairperson noted the difference of opinion in the Committee, but the opinions of the public would be coming and that would assist in ensuring that the legislation was appropriate. Practitioners and the Department of Arts and Culture (DAC) all need to feel comfortable with the legislation. Committee Members were not practitioners and so one needed to hear what the practitioners wanted.
Ms Mantashe was disappointed that the DTI did not agree with the retrospective approach as it would have unintended consequences. She wanted to know if that was the final decision. It meant that the people who needed redress would not be assisted in any way. The Bill would have no meaning. The people who had problems that should be redressed, were not being assisted.
Mr Radebe said that the Bill should be advertised. He assured the DDG that it was not an arbitrary retrospective provision. It could be limited in any one of several ways. Practitioners would advise. The Committee could choose a reference point and decide how far back retrospectivity should go.
Mr Macpherson vehemently disagreed with Mr Radebe’s proposal as it was extremely arbitrary in nature. Did one start with Khoisan art? How did one track down what the uses had been over the years? The Committee needed to remain within the realms of the Constitution and he did not believe that the recommendation by the DTI was a random one and that there were probably legal principles behind the recommendation. To advertise that royalties would be retrospective would create confusion and he could not support that.
Ms Theko had heard what the Department was saying but she wanted the advertisement to be published as she wanted to see what came back as inputs and suggestions. It was necessary to redress this and the Committee could not sit there and not attend to redress. She suggested going back 50 years.
Mr Zwelakhe Mbiba, Deputy Director of Cultural Development: Department of Arts and Culture, stated that the question of redress was very important. For example, ‘The Lion Sleeps Tonight’ had been taken by Disney and converted and re-used. Disney had made millions of dollars. DAC had assisted the family with litigation against Disney. The case did not go to court as Disney had agreed to an out-of-court settlement. He agreed on the need to advertise the clause for public comment.
Adv van der Merwe explained that the retrospective provision under discussion was about the author sharing royalties going forward. It was not about people whose work had been abused in the past. It was a new provision in the copyright system and was not in previous legislation. It was about going forward. When the copyright owner made a second stream of income from the work, the author should share in the payments. If the Committee wanted the provision retrospectively, the Bill would have to state that works created before the Amendment Act fell within the operation of the Act, but a method would have to be found to determine the royalties. There were practical problems in making royalties retrospective. It would mean that someone had to find the author who could have made the work 120 years previously. Was that the type of thing that the Committee wanted? She was aware that they were talking of photographs of families taken in the 1940s and 1950s.
The drafted clause was the least intrusive possible but provided protection going forward. It was based on discussion in the Sub-Committee, but she agreed that the Committee needed input from the public. The concern was not retrospectivity. Retrospectivity itself was not unconstitutional. The concern was that there would be a greater impact on rights and property because it was retrospective, and that impact had to be of concern. However, the fact was that there were works out there where the copyright owners were making huge sums of money whereas authors had received a pittance for the work. The Bill could not put a copyright owner in a position where they were unable to implement the requirement.
The Chairperson noted that when it came to retrospectivity, the relevant legislation would guide the retrospectivity. Making the legislation retrospective to perhaps the 1965 Copyright Act would give a starting point. She was just giving some guidance, but the same principle had to be adopted in all issues. It could not be an arbitrary date in the past. There was no consensus, but the clause would be advertised for comment.
Mr Macpherson asked when the Committee had agreed that retrospectivity would be advertised.
The Chairperson informed Mr Macpherson that the decision had been taken in his absence as he had not attended that particular meeting. She asked Adv van der Merwe to provide the technical reasons for advertising.
Adv van der Merwe replied that it had first been discussed in the Sub-Committee where she had pointed out that the agreements would only apply after the commencement of the Act. That was not what Members had wanted. The decision had been to draft a clause on retrospectivity. From a legal position, new clauses added by the Committee had to advertised for public comment. If something arose from the previous public comments, it could be included without further public comment but if, during deliberations, the Committee realised that there was a gap, the clause had to be advertised to include public comment in the legislative process.
3. Clause 27: Penalties for non-compliance and infringement of copyright
Dr Masotja noted that a process was necessary to ensure that copyright works were appropriately recognised. DTI had looked at other countries in addition to Singapore and the USA, as requested, to see how they addressed penalties for copyright infringement. The Committee had requested DTI to look at China and Saudi Arabia.
On China, there was no information on non-compliance but there were penalties for infringement of copyright. Chinese legislation allowed civil liability for copyright infringement. One was required to cease the infringing act, eliminate the effects of the act, make a public apology or pay compensation for damages. The infringer was obliged to compensate for the actual injury suffered by the copyright holder. Where the actual injury was difficult to compute, the damages would be paid on the basis of the unlawful income of the infringer. The amount of damages would also include the appropriate fees paid by the copyright holder to stop the infringing act. There was no criminal liability for infringement in China.
The Chairperson requested that the one-pager be distributed. It was a view on the Singapore model. She welcomed the input from the public as the input could assist in developing an informed response.
The Chairperson asked if one could get any form of financial help if someone had taken one’s rights and one was impoverished.
Adv van der Merwe responded that the Legal Aid Board could assist one to institute a civil action.
Dr Masotja stated that, in respect of Saudi Arabia, there was no example of a penalty for non-compliance. For infringements of copyright there were penalties for civil liability. Firstly, was a warning and secondly, there was a fine not exceeding the equivalent of R870 000. Thirdly, the violating establishment was closed for up to two months and fourthly, all materials used or intended to be used for infringement were confiscated. There was also a penalty for criminal liability of imprisonment up to six months.
Mr G Cachalia (DA) could understood looking at different jurisdictions but asked why the Committee was looking at Saudi Arabia as its legal systems were a little suspect and it was not a democracy.
Mr Mahlobo called for a point of order saying that Mr Cachalia’s intervention had cast aspersions on another country. Members could not cast aspersions on another sovereign state and a member of the United Nations. They needed to be afforded the respect they deserved. The Committee had requested examples from different parts of the world and the UN had not declared Saudi Arabia a pariah state.
The Chairperson stated that the request of the Committee had been to bring a variety of examples. The Committee was not agreeing or disagreeing, it was simply making Committee Members aware of what was happening in other parts of the world.
Mr Cachalia stated that he was not casting aspersions, although he might have opinions at variance with his colleagues on Saudi Arabia’s hand chopping and treatment of women, but he was questioning why Saudi Arabia was used as an example. He was not questioning China and US as they were pertinent. He questioned the wisdom of taking a country that was not a democracy and whose jurisprudence was not similar to SA’s.
The Chairperson said it was just an example, and it did not matter whether it was relevant.
Mr Macpherson asked the Chairperson to instruct DTI to answer Mr Cachalia. In terms of the rules, he had to have an answer to his question.
The Chairperson stated that it would be her ruling as to the way forward.
Mr Radebe stated that it had been the decision of the Committee to ask for those examples, not that of the DDG. Mr Cachalia could not question the DDG.
The Committee argued whether the Committee had asked for Saudi Arabia.
Ms Mantashe said that the Committee had not given the names of countries but had asked for a range of examples. Certain people were trying to derail the meeting.
Mr Radebe had made his point. The Committee had decided on the need for examples. One could check the Hansard, if there was doubt.
Mr Cachalia stated that he had asked why that example had been chosen and he requested that the DDG be permitted to respond.
Mr Mahlobo said that Committee had asked for examples but there was no specificity about the countries. The Member should ask questions without insulting other countries, as they were leaders and the behaviour was not respectful. They should ask a question but not to be disrespectful and insulting. DTI could not be expected to respond. Members had no licence to be disrespectful and insulting.
Dr Masotja replied that at the 6 June 2018 meeting, DTI was asked to provide examples of penalties in other countries but on 7 June 2018, the Committee had made a specific request for Saudi Arabia and China.
The Chairperson expressed her annoyance with Mr Macpherson who did not wait to be recognised before speaking. Respect and tolerance had declined in the country and parliamentarians had to set an example for schools, suburbs and townships. She often did not agree, but she was never disrespectful. People had died for the Constitution. There was a record of events and he could consult the Hansard. Mr Cachalia was a timekeeper and there was no clock in the room. It was 11:45 Fubbs/Mr Cachalia time.
The DDG indicated that she was still on the question of penalties. Under the Competition Act, there was no question of non-compliance. However, there were penalties for infringements: a fine not exceeding R500 000 or imprisonment for up to 10 years or to both, in the case of a contravention of section 73 (1). In any other case, the fine was up to R2 000 or imprisonment up to 6 months or both.
The Companies Act provided for administrative fines for non-compliance. The Commission or Panel could impose an administrative fine of a maximum of the greater of a) 10% of the respondent’s turnover for the period during which the company had failed to comply, and b) the maximum prescribed fine of R1 000 000. When determining the amount of an appropriate administrative fine, a number of considerations had to be taken into account, including the nature, duration, gravity and extent of contravention; loss or damage; behaviour of the; the level of profits derived, etc. The DDG had not included the actual manner in which the turnover was prescribed.
Adv van der Merwe stated that on page 18 of Draft 2 of the Bill, the annual turnover had been defined as the total income of a non-natural person, during the year immediately preceding the calculation, of all transactions to which the Act applied. That had been borrowed from the Companies Act.
The Chairperson asked whether the ‘year’ referred to calendar year or financial year?
Adv van der Merwe replied that the Bill referred to a non-natural person in case someone was conducting business with an unregistered company, and the word referred to a calendar year.
Mr Cachalia asked if the offence was criminal or civil and was it an offence for which a person was convicted, or would the person be ‘guilty of an offence’. (clause 9A(4)(a))
Mr Macpherson spoke on the wording of clause 9A(4)(c) pointing out that turnover or income was used for a business entity but not for a natural person.
The Chairperson pointed out that the clause referred to a non-natural person.
Adv van der Merwe stated that she had taken the word ‘offence’ from comments by the Department of Justice and Constitutional Development on the Credit Amendment Bill. She agreed that the word ‘a’ had been omitted but that non-natural was anybody operating as a business, even if it was not registered as a company. It excluded any concept of citizenship. It was an entity, not a person.
The DDG indicated that, on the question of penalties, DTI had also looked at the National Credit Act which allowed the Tribunal to impose an administrative fine for non-compliance which could not exceed the greater of 10% of the annual turnover or R1 000 000. Factors similar to those in the Companies Act had to be taken into consideration by the Tribunal.
The DDG indicated that that was the end of her presentation on the flagged issues.
Adv van der Merwe took over and noted that of the three flagged clauses, retrospectivity and commissioned work had been dealt with. Penalties was currently being discussed. At the previous meeting, there had been a discussion about the current offences in the Act which were all infringements. The Act demanded that infringement and non-compliance would have to be placed in separate chapters in the Bill. Clause 11 on section 9 would contain the penalty clause. Clause 27 dealt with infringement. She asked if the current offences should be increased. The current offences for infringement, were first offence: 3 years and/or R5 000 and for the second offence: 5 years and/or R10 000. The penalty for non-compliance for a non-natural person was a minimum of 5% of turnover for a first offence and a minimum of 10% of turnover for a second offence.
Mr Mbuyane said she had presented what the Committee wanted: 5 years and minimum of 10% of turnover.
The Chairperson explained that the advocate was giving the Committee a choice and asked her to repeat it.
Adv van der Merwe explained that the penalty for infringement had been separated from the penalty for non-compliance. For infringement, there was a penalty for a first offence and a stricter penalty for a subsequent offence. In the case of non-compliance, there was only one penalty.
Ms Theko agreed with the separation of non-compliance and infringement, and proposed adoption of the clause, if required.
Mr Macpherson said there was a difference between non-compliance and infringement. For a non-natural person to be given a fine of a minimum of 10% of turnover was totally unreasonable and could not be supported by the DA.
Mr Radebe suggested that as it be advertised for public comment. The Committee should not argue about it, but the clauses should go out to the public for comment.
The Chairperson agreed, saying that the public might surprise the Committee with their responses. Clause 27 on infringement and clause 11 on non-compliance would be included in the advertisement.
Ms Theko requested clarity from Adv van der Merwe on section 9(e).
Adv van der Merwe explained that section 9(e) dealt with communicating sound and making sound available. In Sub-Committee meetings, both Members and experts had thought that they meant the same thing. However, the Companies and Intellectual Properties Commission (CIPC) had explained that it was not the same thing. Communicating a sound recording would occur, for example, when a member of the public walked into a shop and heard music playing. Making the sound recording available to the public, on the other hand, meant that a person could choose the time and place to hear the music, for example, streaming of music. It should be in two separate sub-sections to make it clear that they were separate issues.
Ms Theko noted that the advocate had separated the two types of sound recording into section 9(e) and 9(f).
The Chairperson asked how one dealt with the music played by a person who was reviewing a sound recording in a music shop. If he or she bought the recording, the artist would earn royalties but what happened if the person did not purchase that recording.
Mr Radebe asked how the advocate was going to create 9(f). What the additional clause about the recording would be like.
Ms Theko read the drafted section 9(f) aloud and explained that 9(e) would be up to the word ‘or’. ‘or’ would change to ‘and’ which would then link the rest of the sentence as section 9(f).
Ms Meshendri Padayachy, Deputy Director: Intellectual Property and Policy at DTI, explained that an example of communicating to the public was the musical ambience in a restaurant. One communicated a message to the public via music. Giving the public access to music was allowing the public to select whatever music they wanted and whenever they wanted in the form of a digital platform, i.e. streaming of music. It was important to note that two copyright treaties had been incorporated: World Intellectual Property Organisation (WIPO) and WIPO Performances and Phonograms Treaty (WPPT). The WIPO copyright treaty put the two rights together but WPTT, which was the copyright for sound recording, had two separate clauses for copyright.
The Committee decided that rather than going through the detail of the Bill again in its current form, the Committee would advertise the relevant clauses and discuss them after public input had been received.
Dr Masotja indicated that DTI and CIPC requested an amendment to revised clause 23(b)(3). The initial target in that revision had been publishers and composers but to protect authors and composers, the clause had to be re-worded stating that copyright was being given ‘to’ publishers and not ‘by’ publishers.
Mr Kadi Petje, Senior Manager: Copyright, CIPC, said that the policy position was that they wanted to make sure an author or composer was able to get copyright back after 25 years as authors and composers had suffered for a long time. But it did not include the policy intervention. He read the first two lines of the amended clause: “No assignment of copyright in a literary work to a publisher, or in a musical work to a publisher” (provided that it would only be valid for 25 years).
Dr Masotja explained that it was not a clause that had to be advertised but DTI and CIPC wanted to re-work the clause. Ms Padayachy wanted to respond to the page circulated to Members on the Singapore model.
Ms Padayachy noted a member of the public had asked about the fifth factor in the Singapore model. She explained that a hybrid model had been incorporated into the Bill which acknowledged four specific factors. The fifth factor mirrored the fourth one and the fifth one closed the system again. That was why there were only four factors in SA model. The position in the Bill agreed with the letter from the member of the public.
Ms Theko asked the advocate about the proposed change from “by” to “to” and the implications. Was it closing the copyright system or opening it up. What did it mean in terms of ‘fair use’ versus ‘fair dealing’?
Adv van der Merwe explained that the proposed change from “by” to “to” had nothing to do with ‘fair use’ or ‘fair dealing’. It was about asking that work be assigned to a publisher instead of being assigned by the author. It was all about who was being protected.
The Chairperson indicated that the Committee would come back to that clause later. The DTI, CIPC and Parliamentary Legal Advisor left the room to finalise the clause.
After the Committee had considered its Committee Reports and Minutes, the Parliamentary Legal Advisor returned to present the changes made by the legal team to clause 23.
Adv van der Merwe informed the Committee that ‘author’ was defined as the originator of any work, literary or musical, etc. The amendment stated, “no assignment of copyright by an author to a publisher”. That would allow for the reversionary right in clause 23(b)(3).
Adv van der Merwe told the Committee that the team had also finalised section 9(e) and (f). The amendment would also apply to sections 6, 7, 8, 11. “communicating the sound recording by wire or wireless means to the public or making the sound recording available to the public so that any member of the public may access the sound recording from a place and at a time chosen by that person.”
The Chairperson proposed that the amendments be accepted. The principle was to advertise certain clauses, and, for that, the Chairperson required a mandate from the Committee. A copy of the process that would be followed was handed out to Members. This was approved by the Committee.
Committee Report on its oversight visit to sugar cane farmers and sugar industry associations
The Chairperson announced that the Report had to be addressed as it had not been listed in the Announcements, Tablings and Committee Reports (ATC’d).
The Committee Secretary, Andre Hermans explained that the recommendations were procedurally out of order as some points were asking other Ministers to do things. The report could only make recommendations to the Minister of Trade and Industry. The technical staff had amended the report but required Committee approval.
The Chairperson pointed out that the South Africa Sugar Association had three months within which to submit their long-term plan. The Committee would require the report by the end of July. The short-term plan for transformation had been received within two weeks, as required.
There was no time limit on the date for the amendment to regulations pertaining to the relationship between black cane growers and the sugar mills regarding the payment system. The Chairperson suggested that a time limit be put in the report. The Committee had been thinking of three months. The Chairperson proposed a timeline of end of July, which the Committee accepted. The Minister would have to report to the Committee on the situation regarding mills within three months. The Amendment of the Sugar Act did not have a timeline. The Committee had hoped that it would be done by the end of year.
Ms Theko asked which Act they were considering amending. She suggested that the Act be fully detailed in the report, i.e. it was necessary to include the full title, number and year of the Act in the report
Ms P Mantashe (ANC) suggested that the Act should be completed within 12 months of the commencement of the new administration in 2019.
The Chairperson emphasised that a speedy resolution to the review of the sugar tariffs was very important.
Mr Macpherson suggested another recommendation, which was that the Minister of Agriculture, Forestry and Fisheries as well as the Minister of Land Reform and Rural Development assist black emerging farmers. The private sector was assisting them, but they were not seeing the hand of government assisting the farmers.
The Chairperson suggested that the other Ministers were assisting but could do more.
Ms Mantashe asked for feedback on 8.2 which was about the sugar mills. She noted that the other work identified had been completed.
Mr Macpherson tabled the addition he had proposed.
Ms Theko proposed adoption of the report and Ms Mantashe seconded, with an amendment. All Members of the Committee accepted the Report.
The Chairperson reminded everyone that time was of the essence. The Study Visit matter would be handled after the report on the Copyright Amendment Bill. The change to the agenda was accepted by the Committee.
Committee Report on its Study Visit to the United Kingdom
The Chairperson stated that the Members who were on the study visit to the UK were Ms Mantashe, Ms Nthangwini, Mr Williams, Mr Macpherson and Ms Fubbs, Chairperson
The Chairperson stated that the report had to be finalised and she had asked Members to consider recommendations. She emphasised that the report was based on the recorded comments of Members. She had been through the report page by page. She noted that Members had learned a great deal on that study tour. She noted that even in the UK, the enforcement agency did not have the capacity to do more than take a random approach to monitoring, although it ensured that all institutions were monitored at least once every two years.
Ms Mantashe liked the fact that people were trained and given a certificate after training. The Chairperson and Mr Mantashe agreed.
The British term ‘solicitor’ referred to an attorney in South African terminology. That needed to be noted in the report. The Rand conversion had to be included whenever there was a reference to Pounds. The conversion should be current with a footnote giving the conversion date. SA did not have a Payzone outlet. Ms Margot Sheldon was asked to find out what a Payzone was and give the SA equivalent.
Loan sharks were illegal in the UK. Mandatory credit life insurance had warmed the heart of the Chairperson. She asked the Committee Secretary, Mr Andre Hermans, to ensure that a letter of thanks was sent to the British Parliament which had been in the middle of its credit legislation when the Members had visited Parliament.
The Chairperson asked Members to consider recommendations.
Ms Mantashe had liked the practice in the UK, where the general public was financially literate, and pamphlets were issued to enhance their financial literacy. She suggested that the Committee proposed that the Minister engaged with the Minister of Education regarding financial management in schools.
The Chairperson recalled that it had been made very clear that, in certain parts of the UK, different laws prevailed. For example, the Scots had a very open system. Those differences needed to be clarified in the report. The Researcher had to check that what had been said in the report applied to the entire UK or only to some parts of the kingdom.
Ms Mantashe asked whether, in the interest of educating the public, NCR could not distribute pamphlets about debt, etc. in all languages.
Mr Macpherson wanted the first recommendation to be reworded to recommend a consultation with the financial industry and not give an instruction to the industry. He asked who was going to facilitate financial literacy and financial training. Who was going to actually do it? Training should be the job of the National Credit Regulator (NCR) or was the Committee outsourcing a function of the NCR? He suggested that the second recommendation should be that the Minister reviewed the National Credit Review Bill and expedited the tabling of that Bill.
Mr Macpherson suggested that recommendation three should ask the Minister to consider making debt counselling available to low income consumers, as was common in the UK. He thought it was pre-emptive to tell credit providers about the levy.
Mr Radebe stated that the Committee should not undermine the literacy training done by NCR. Also, a levy could not be called for by the Portfolio Committee.
Ms Mantashe stated that the recommendation did not take responsibility away from the NCR but added a financial literacy pamphlet distribution.
The Chairperson requested the Committee Researcher to propose the revised recommendations.
Ms Sheldon added all the comments made.
Mr Macpherson asked the Committee to add one amendment to Recommendation 1, “to consider”. The Chairperson agreed.
1) Engaging with the Minister of Finance to consider introducing a levy for credit providers for the NCR to facilitate financial literacy and free debt advice for consumers.
2) Engaging with the Minister of Basic Education to consider including compulsory financial literacy and management in the curriculum.
3) Improving the distribution of consumer information by the NCR in all official languages.
4) Expediting the review of the National Credit Act, 2005, including the implementation of measures to confiscate the proceeds from convicted illegal lenders and providing more access to debt counselling to low-income consumers.
The Chairperson requested a mandate from the Committee for her to scrub the documentation and correct all technical errors.
The report was proposed for adoption by Mr Macpherson and seconded by Ms Mantashe. There was no objection to the adoption of the report.
Consideration of Minutes
Minutes of 10 and 23 May and 5 and 6 June 2018 were approved by the Committee.
The Chairperson announced that she had just received some correspondence, perhaps pertaining to SABS but would not read it then as it was four pages in length.
Media statements by Committee
Mr Macpherson declared that a statement had been issued by Parliament the previous day, relating to the ease of doing business with the portal released by the CIPC. The statement read: “The Portfolio Committee of Trade and Industry wished to congratulate the CIPC….” He expressed his concern about the statements issued by Parliament or the Chairperson communicating on behalf of the Committee on a decision that had not been taken by the Committee. He asked that no statements be made on behalf of the DA unless the party had been consulted. He was happy for Parliament to communicate on behalf of the Chairperson or the ANC. He asked, through the Chairperson, that Parliament desist from communicating on behalf of the DA.
The Chairperson took responsibility for the statement. She had been in a rush and had given a draft to the communications department. It was intended to state that the Chairperson conveyed her congratulations, but she had not made a careful check of the final copy. Mr Macpherson had made a good point and she did not want Parliament to be blamed for an error she had made. She had written as the Committee Chairperson in the light of the visit to Germany and the Committee’s visit to CIPC, but she had not read the statement and proof read it. She did not want a complaint to be made to Parliament. She recalled discussions with CIPC about improving IT systems. CIPC had indicated that it was working with a bank to digitise its systems and she had been very pleased when she saw that it had been done. She had learnt her lesson.
Mr Mbuyane stated that the Chairperson’s apology was accepted.
The Chairperson thanked everyone for tackling the Bill so seriously. The Bill was not complete, but the Committee Secretary would inform the public that certain clauses were advertised for public comment.
The Committee Secretary stated that the Committee had concluded deliberations up to that point and had agreed to the clauses that would go for further public comment and the Committee staff would comply with the necessary rules on how many days were given the public for comment. The following clauses, or sections of those clauses, were to be advertised: clauses 1, 5, 7, 9, 11, 15, 22, 25, 27, 30, 37.
He asked the Committee if the staff should submit the draft as it existed to the Technical Panel or whether the staff should wait until the latest public comments had been received and the Committee had deliberated.
Mr Cachalia suggested he wait for comment and subsequent deliberations and then send the draft through.
Mr Radebe agreed.
The Committee Secretary explained that Senior Counsel Adv Trengove had asked to be briefed by the Legal Advisor, which she would do the following week. Adv Trengove would then forward his opinion within three weeks. Adv Trengove’s opinion would be sent to Members as soon as it was received.
The Chairperson asked the support staff to keep the Chairperson briefed on anything that happened that might need her attention. She thanked all Members as they had really applied their minds to the Bill. She thanked the Departments, CIPC and the Legal Advisor.
The meeting was adjourned.
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