The Portfolio Committee on Trade and Industry had appointed a panel of technical experts on copyright to review the Copyright Amendment Bill. The intention was that the panel would look at the use of technical terminology used, whether the terminology was aligned to the international treaties, and constitutional matters. The panel was asked not to address policy matters as the Committee had dealt with policy issues.
The parliamentary Senior Legal Advisor, together with a team from the Department of Trade and Industry, had reviewed the recommendations of the panel and had made technical amendments to the Bill based on the recommendations. The experts were not in attendance and the Legal Advisor presented the technical changes to the Bill along with the motivation provided by the experts for the changes.
Two matters relating to policy had been raised by the panel members. The first was a question of whether the fair use/fair dealing hybrid model met the three-step check of international treaties. It was a question of whether it was compliant with the treaties or not and an expert was looking into that matter. The second concern was whether the policy decisions were constitutional. The Legal Advisor had assessed the constitutional concerns from a high level perspective and she was of the opinion that the only concern was the retrospectivity and the sharing of royalties where the procedure was so unclear that it could not be declared procedurally fair. That had already been addressed as the Bill required the Minister to see how retrospectivity could be applied and to regulate specific procedures before that section of the Bill was implemented. The State Law Advisor’s Office and the Senior Law Advisor at the Department of Trade and industry were looking at the constitutionality of the Bill. Those issues would be addressed with the Committee when the relevant reports had been received.
The Legal Advisor went go through the latest draft of the Bill itself, noting each amendment that had been made.
Only one change was not immediately acceptable to the Committee and that was in Clause 22, Section 21.
Several panel members had suggested that any agreement relating to the commissioning of works had to be a written agreement so there was proof that the person commissioning the work would be paying for it. It was suggested that “agreement” be changed to “written agreement” in paragraph 21(a)(c). One Committee Member did not have a problem with the technical amendment, as long as it did not create an unintended exclusion. It was necessary to consider the intention and whether it could possibly lead to unintended consequences. The intention of the paragraph was to protect those people who had copyright but there might be unintended consequences for some artists who could possibly not prove that they had copyright. The point was flagged for further consideration.
A second concern expressed by Members was the question of alignment of the Copyright Amendment Bill and the Performer’s Protection Amendment Bill. Another Member asked whether a creature of Statute such as the Companies and Intellectual Property Commission could accredit in terms of the Broad-Based Black Economic Empowerment Act.
The intention of the Committee was to complete the Copyright Amendment Bill so that it could be tabled in the House of Assembly before the end of November, but that timeframe would depend largely on the public input to the clauses that were currently advertised and the reports on the three-step test and the constitutionality of the Bill.
The Committee addressed the issue of the National Gambling Act. The National Gambling Board had been dissolved by the Minister based on the findings of a forensic investigation regarding maladministration. The other problem that the Committee had become aware of was that policy decisions had to be made at a meeting of the relevant Minister and the Members of the Executive Councils from the provincial legislatures. However, there had been a problem getting a quorum in the meeting of the Minister and the MECs, which had resulted in policy decisions being put on hold.
The Committee had hoped that the Department of Trade and Industry would provide a comprehensive Bill the previous year but it had not come about. The Committee was faced with an obligation to move forward rapidly with the Bill that the Committee had received from the Department. It was essential to provide for a Regulator for the National Gambling Board and to deal with the matter of the quorum.
The Chairperson proposed that the Bill deal only with those two critical issues that were essential for the work of the Gambling Board. A counter proposal was that a third item be included in the Bill, that is, online gambling. The Committee already had a Private Member’s Bill on Online Gambling on the table and it was important to give online gamblers protection as well as, in the light of the massive fiscal shortfalls, to be able to tax the winnings of online gamblers. The Committee voted on the two proposals. The first proposal was carried and the second proposal was defeated.
The Chairperson noted that the journalist, Linda Ensor, had retired after many years of covering the Portfolio Committee on Trade and Industry, amongst other Committees. She was a committed journalist of integrity and the Chairperson and all Members of the Committee wished Ms Ensor well. Ms Ensor was currently in Japan.
Mr D Macpherson (DA) concurred with the Chairperson. Linda Ensor was a fine journalist who was not afraid to ask the tough questions. The Committee and Parliament would really miss her. He had spoken to her since she had announced her retirement and she had indicated that she would be re-incarnating herself in another guise in the journalistic profession. He suggested that maybe it would be appropriate for the Committee to write to Ms Ensor wishing her well for her future endeavours.
The Chairperson made some changes to the agenda. The BRRR would be presented to Members on 23 October 2018 because she wanted to ensure that the report did justice to the five year period of the current Parliament and gave a broad overview of where the Committee was at the beginning of the term of office and where it stood currently. The report would contain all the lessons learnt over that period. In its place the Chairperson would be dealing with some Committee business that required a quorum in the Committee.
The Chairperson mentioned that the whip was absent as he was in hospital with his son who was undergoing an operation.
Mr D Mahlobo (ANC) offered the support of the Committee to Mr Radebe.
The Committee moved onto the consideration of the technical expert panel input on the Copyright Amendment Bill. The experts were not in attendance but Adv van der Merwe would present the recommendations.
Copyright Amendment Bill technical expert input
Adv van der Merwe stated that the team had received inputs from four members of the panel of experts: Adv Joel Baloyi, Mr Andre Myburgh, Mr Wiseman Ngubo, and Ms Michelle Woods from the World Intellectual Property Office. The panel was a technical panel and the intention was that the panel would look at the use of technical terminology in the Bill, whether the terminology was aligned to the international treaties, and constitutional matters. The Committee had not wanted to find - when the Bill went to Parliament - that words had been incorrectly used in the Bill. The terminology had to be correct. The Committee had dealt with policy issues such as fair use, fair dealing and the hybrid model. Although asked not to address policy issues, the experts had found it very difficult to divorce policy from the wording. Where policy was affected by the wording, the task team had taken those points into consideration. The team now had a fourth draft of the Bill.
Two matters relating to policy had been raised by the panel members that required consideration. The first was a question of whether the fair use/fair dealing hybrid model met the three-step check of international treaties. It was a question of whether it was compliant with the treaties or not and Prof Schonwetter was looking into that matter. A number of academics had written on the matter of the three-step test, saying that the fair use principles could never adhere to the three-step test. However, Prof Schonwetter was aware of some well-respected scholars who had advised that that was not the case. He would provide advice to the Committee.
Secondly, there was a concern about the constitutionality of the Bill. Adv van der Merwe had looked at the Bill from a high level perspective to assess constitutional concerns and she was of the opinion that the only concern was retrospectivity and the sharing of royalties. The concern there was that the procedure was so unclear that it could not be declared procedurally fair. That had already been addressed and the Bill required the Minister to see how retrospectivity could be applied and to regulate specific procedures before that section was implemented. Adv Gideon Hoon from the State Law Advisor’s Office and Adv Johan Strydom, Senior Law Advisor at the Department of Trade and industry (DTI), were looking at the constitutionality. Those issues would be addressed with the Committee when she had received the relevant reports.
Copyright Amendment Bill – Draft 4
Adv van der Merwe informed the Committee that she would not be making a presentation but would go through the latest draft of the Bill itself, indicating each amendment that had been made.
The experts had raised the issue of whether every section in the Bill had been correctly captured in the long title. It was a technical point but the long title had been amended and currently made it very clear as to what was included in the Bill.
Clause 1 Definitions
A collecting society: The clause had been advertised. Experts and the public had indicated that the offences clause in the Bill meant that a definition of a collecting society was required. The definition required a collecting society to be a non-profit company that was owned by members who were holders of rights, and were the only members. Members had to grant mandates for the collecting society to represent them and collection of royalties had to be the primary purpose of the society.
Commercial: Ms Woods from WIPO had indicated that the definition excluded many indirect commercial activities. The recommendation was to remove the word ‘direct’ from the definition.
Person with a disability: Adv Myburgh pointed out that the Bill had a circular definition for a person with a disability and for accessible format copy as the one referred to the other. The team had changed the definition of a person with a disability by removing the reference to accessible format copy and explaining what the latter term meant, i.e., “…to access and use a work to be in a format that enables the person to access and use the work in the same manner as a person without disability.”
Clause 4 Section 6
Ms Woods had alerted the team to the exclusion of distribution rights in the Bill and had recommended the inclusion of Paragraph 6(a)(eC): “distributing the original or a copy of the work to the public;”. The clause had been advertised.
Clause 5 Section 6 Share in royalties regarding literary or musical works
Section 6A was not clear about whether an author could waive the right to share royalties should the author decide to do so. The original discussion about contractual agreements had not considered the waiving of rights. Section 6A(2)(b) was amended to read: “…the author shall, subject to any agreement to the contrary, be entitled to receive a fair share of the royalty…” It was clear that there was a right to share in royalties, but an agreement could read differently.
An amendment to paragraph 6A(3)(a) was proposed to make the paragraph clearer: “… between the author and copyright owner, or between the author and the person contemplated in subsection (2)(b). That clarified that the agreement was between the author and the person.
Paragraph 6A(5)(a) referred to a use and to not a person. There was a need to clarify the person. “…authorized by the author to use the work as contemplated in subsection 2(b)”.
Paragraph 6A(5)(c) was a consequential amendment.
Paragraph 6A(6)(a) created an anomaly because the paragraph excluded commissioned works by authors. However, it could not do so because the Act did not provide for such commissioned works. The words “…commissioned or who…” were deleted.
Clause 6 Section 7A Distribution rights
An amendment was made, as per 6(a)(eC), by adding subsection 7(a)(dC) “distributing the original or a copy of the work to the public;”.
Clause 6 Section 7B
The paragraph referred to the residence and citizenship of authors in the case of resale royalty rights. Ms Woods had explained that the Berne Convention and other treaties and laws were broader and related to anyone who was habitually resident in a country. In South African terminology, the word was ‘domiciled’, which had been included in 7B(4)(a)(i) and 7B(4)(b).
Paragraph 7B(4)(d): correction of the cross-reference by changing “section 9” to “section 7”.
Subsection 7B(5) dealt with resale royalties. Adv Myburgh had pointed out that it was a different type of right. A resale right was not a copyright right and, as the section was about copyright, the paragraph had been deleted.
Clause 8 Section 8 Nature of copyright in audiovisual works
The distribution rights had been added in 8(1)(dC) and the rental rights in 8(1)(dD). The inclusion of those rights had been advertised for public comment.
Clause 9 Section 8A Share in royalties regarding audiovisual works
When the Bill had been introduced to the Committee, it had included a lengthy process for recording the use of sound recordings. The public had been concerned about the process and DTI had proposed that the work used be recorded on a log sheet. The person had to register the fact of usage and submit a true and accurate report for the calculation of royalties. Paragraph 8A(6)(a) and (b) as well as paragraph 8A(7)(a), (b), (c ) made the same process applicable to audiovisual works because royalties were often not paid for the use of audiovisual works.
Clause 10 Section 9
All of the experts had explained that making the sound recording available to the public was an exclusive right in all the international treaties and therefore did not belong in Section 9. Paragraph 9(b)(f) had been deleted. A new paragraph 9(b)(f) referred to distribution rights and 9(b)(g) was added to include rental rights as per the recommendation of Ms Woods of WIPO to include those rights in the Bill.
Clause 10 Section 9A Royalties regarding sound recordings
Adv Baloyi had explained that there was no need to include the words “…or unless authorized by law…” in paragraph 9A(1)(a) as the law would never deprive anyone of copyright.
Paragraph 9A(1)(a)(iv) referred to making a sound recording available to the public. All experts agreed that it was an exclusive right and did not belong in that section. Paragraph 9A(1)(a)(iv) was deleted and consequential amendments made in the clause.
Paragraph 9A(2)(a) related to contractual freedom and allowed the owner of copyright to sign an agreement that he or she chose not to share in royalties.
Clause 13 Section 12A General exceptions from copyright
Paragraph 12A(1)(a) included the performance of a work. The Copyright Act had to limit itself to the use of work and not address performance; the Performer’s Protection Act addressed issues of performance. The words “…or the performance of that work” were deleted from Paragraph 12A(1)(a).
Adv Myburgh had stated that there was no basis for removing the moral rights of authors if the Bill was looking at fair use. He suggested that there should be no option but to record the source and name if using an author’s work. Paragraph 12A(1)(c ) had read:” … and to the extent reasonably practicable and appropriate, the source and the name of the author shall be mentioned.” The words “…and to the extent reasonably practicable and appropriate…” were deleted which removed any leeway for a person not to acknowledge an author and his or her work.
Clause 13 Section 12B Specific exceptions from copyright protection applicable to all works
Paragraph 12B(1)(d) was amended to address the same issue as in paragraph 12A(1)(a).
Paragraph 12B(2): correction of cross-reference from ‘j’ to ‘i’.
Clause 13 Section 12C Temporary reproduction and adaptation
A technical amendment was made. Subsection (1) was deleted as there was only one subsection and the convention in drafting was not to number a single subsection.
Clause 13 Section 12D Reproduction for educational and academic activities
The cross-reference in subsection 12D(8) was corrected by changing it from (5) to (6).
Clause 20 Section 19C General exceptions regarding protection of copyright work for libraries, archives, museums and galleries
Ms Woods had indicated that the compatibility of section 19C with the three-step test was difficult to assess. On the one hand, the provision did not allow for ‘any’ use of the copies but it also did not describe or limit the purpose for which the copies might be used. She had proposed that the Bill stated that the purpose was to make a copy for the institution’s own collection and not for anyone else. Subsection 19C(9): “A library, archive, museum or gallery may make a copy of a copyright work for its own collection…”
Ms Woods had added that in subsection (11), it was difficult for her to reconcile the use copies ‘for any other legal purpose”. It did not make sense and it was so broad that anyone could make copies. Her proposal was to make it clear that it was for preservation purposes and then to change the word “preservation” in the final phrase to “scholarship” so that subsection 19C(11) read: “…may reproduce for preservation purposes … and make such work available for scholarship, research and any other legal use.”
The Chairperson asked if that covered libraries where students sometimes tore a page out of a reference book and librarians had to copy that page from another copy of the same work in that, or another, library.
Adv van der Merwe pointed out that subsection 19C(11) related to a work that was no longer in print. However, she was sure that one of the other subsections gave that kind of authorities to libraries. She added that subsections 19C(12) and 19C(13) would address the concern.
Subsection 19C(15) was amended to change the reference from subsection(12), which had been withdrawn, to subsection (12A).
Clause 20 Section 19D General exceptions regarding protection of copyright work for persons with disability
The technical experts and even members of the public in the first round of submissions had expressed concern about subsection 19D(1) which stated that any organisation or person serving disabilities could make accessible copies available. The question was how to ensure that the Bill did not allow everyone to do so. The provision was too broad. However, accreditation of those who could make accessible copies available would bring in a new process involving applications, etc. The recommendation was that the Minister had to prescribe the persons who were allowed to make copies. The process would very simply be a call for organisations to submit names for approval and those names that were approved would be gazetted, enabling anyone to check whether the person was allowed to make accessible copies available. Subsection 19D(1) was amended to read: “Any person as may be prescribed and that serves person with disabilities…”
Mr Ngubo had suggested that the word “legal” be added to subsection 19D(3) to ensure that only legal copies of accessible format material might be imported and not pirated copies.
Clause 21 Section 20
Adv Baloyi had indicated that in subsection 20(2), the phrase “complain of” was confusing. What had been intended was the right to take legal action related to the infringement of the provisions of that section. The words “complain of” were replaced by “take legal action related to”.
Clause 22 Section 21
Several panel members had suggested that any agreement relating to the commissioning of works had to be a written agreement so there was proof of the agreement. It was suggested that the word “written” be included before the word “agreement” in paragraph 21(a)(c).
Mr Mahlobo said that he had been told that in case law, there were agreements that were not written. He did not have a problem with the technical amendment as long as it did not create an unintended exclusion. He just wanted to be sure about the inclusion in the light of case law.
The Chairperson recalled an extensive discussion about people disputing alleged verbal agreements.
Adv van der Merwe added that that was the reason for adding the word “written”. If the word was not inserted, it could be a verbal agreement and the Bill set out a very complicated process for validating verbal agreements. In 21(a)(c) which dealt with commissioning of works, the panel felt strongly that a written agreement was necessary.
The Chairperson stated that it was necessary to consider the intention and whether it could possibly lead to unintended consequences. The intention was to protect people who had lost their copyright because people referred to verbal agreements. However, if the Committee went to certain urban and rural areas, Members might find that nothing was put in writing at all. Although the intention was to protect those people who had got copyright but there might be unintended consequences for some artists who could possibly not prove that they had copyright.
Mr Mahlobo noted the proposal but stated that it had to be deflected because sometimes contractual law had been used in an exploitative way where people had been exploited because no written agreements had been entered into even though people had been able to perform, etc. If the recommendation was inserted, would it have any negative impact on those that the Bill was intended to assist? He suggested that the insertion be flagged while the Committee considered the intention of the insertion and who the Bill was intended to assist. He referred again to case law where verbal agreements had been accepted.
The Chairperson stated that the insertion was not rejected but the Committee would flag it.
Adv van der Merwe explained that the clause was dealing with a written agreement. The person who commissioned a work required a written agreement in order to show that he or she had copyright. If there was no written agreement, the author retained copyright. The written agreement therefore protected the author.
Mr Mahlobo accepted the explanation, but added that there was a history and the Committee needed to recognise the injustices of the past. Henceforth there had to be written contracts but for redress purposes the subsection had to be flagged. The circumstances for redress might be a little different.
The Chairperson confirmed that paragraph 21(a)(c): the insertion of “written’ in “written contract” would be flagged.
Clause 23 Section 22
Paragraph 22(b)(3): Adv Myburgh had pointed out that by inserting the phrase “in a literary or musical work by an author to a publisher” in the assignment of copyright, the Bill was removing the formalities from all other forms of work. The intention had been for copyright to revert to the author after 25 years, but that was limited to literary and musical works only. To resolve the problem, the phrase “in a literary or musical work by an author to a publisher” would be deleted at the commencement of the paragraph but the same phrase would be retained towards the end of the paragraph which read: “…Schedule 2; provided that assignment of copyright in a literary or musical work shall only be valid for 25 years from the date of such assignment”. The original intention was retained in that part of the paragraph.
Clause 24 Section 22A Licences in respect of orphan works
The resale royalty rights would apply if an artistic work was sold by the artist and when that buyer sells it on, the buyer makes a large profit. A percentage of the resale had to go to the creator of the work. However, the concern was about what would happen to the royalty if the creator could not be found. The team had decided to handle it in the same way as orphan works and therefore resale rights was included in section 22A.
Ms Woods had pointed out that the Bill created confusion because resale royalty rights was not a copyright issue. It was a different type of right. The proposal was to delete the words “or a resale royalty right” in subsection 22A(1) and to include the same steps used in managing orphan rights in subsection 22A(10).
Paragraph 22A(8) recognised an author’s right to claim royalties at any time but did not indicate against whom the royalties should be claimed. The panel of experts had proposed that the words: “from the particular account contemplated in subsection (7), or where the licensee has not made payment to that account, directly from the licensee.” be added to subsection (8).
Clause 25 Section 22B
Adv van der Merwe informed the Committee that in a number of clauses, authors had been left out. In the first amendment relating to authors, it was a question of alignment. Throughout the Bill, the format was authors came before copyright owners and that order had to be retained.
In paragraph 22B(2)(a), the words “or author” were deleted and reinserted correctly: “authors or copyright owners, or on behalf of an organisation representing copyright…”
Paragraph 22B(2)(b) limited the payment of royalties to section 5(1)(b) of the Performer’s Protection Act , 1967 (Act No 11 of 1967). However, work on the Performers Protection Act showed that royalties could be expanded so instead of limiting the reference to royalties to one section of the Performer’s Protection Act, the reference to the section would be deleted and the paragraph would refer to the Performer’s Protection Act as a whole. The words: “section 5(1)(b) of” were deleted from paragraph 22B(2)(b).
Paragraph 22B(7)(a): Adv Baloyi had suggested that adding the word ‘representative’ to collecting society was confusing matters as it was a question of whether a ‘representative collecting society’ was the same as a ‘collecting society’. The word “representative” was deleted.
Paragraph 22B(7)(a) also referred to any person who had acted as a collecting society – as defined in that chapter - in the 18 months prior to the commencement of the Copyright Act, 2019. If the Act had not yet been published, one could not act in terms of the Act. The words: “in terms of this chapter” were removed from 22B(7)(a). The paragraph then referred to anyone or any organisation that had acted as a collecting agent in the 18 months prior to the gazetting of the Act.
Clause 25 Section 22C
Paragraph 22C(1)(a): The word ‘author’ had to be included in the subsection as previously discussed.
In addition the subsection spoke about a ‘collecting society of rights’, which as Adv Baloyi had pointed out was yet another phrase which actually simply meant ‘collecting society. The words: “…of rights…” was removed from the paragraph.
Paragraph 22C(1)(b): ‘Author’ was included as discussed above. The paragraph also contained the same phrase ‘collecting society of rights’ and the words: “…of rights…” was removed from the paragraph.
Paragraph 22C(2)(b) was added to make it an obligation for any person who used sound recordings, audio-visual works or other relevant works, to provide the collecting society with a true and accurate copy of the records. As a collecting society would be a body of statute, it could only perform those actions permitted in law, making it necessary to add a paragraph lawfully allowing a collecting society to request any records of the commercial use of any work.
Subsection (4) created an offence. Paragraphs 22C(4)(a) and (b) were added to the clause making it an offence for anyone to fail to provide records to a collecting society. The experts had considered the offence necessary to give collecting societies teeth because the record was the crux of accounting for royalties. The paragraph had been advertised.
Paragraph 22C(2)(c): the word ‘licencing’ was added to describe which fees could be collected.
Paragraph 22C(2)(d), extended the powers of a collecting society to also negotiate ‘tariffs’ and the descriptor ‘licensing’ was added to fees. The paragraph had been advertised.
Mr Williams briefly took over the Chair
Paragraph 22C(3)(c) was amended to state that a reciprocal agreement regarding royalties had to be between collecting societies and not between countries, which would have been too complicated to manage efficiently.
Ms Theko asked about the removal of ‘performance of that work’ in paragraph 12A(1)(a). She did not understand the implications for the Performer’s Protection Amendment Bill.
Adv van der Merwe explained that paragraph12A(1)(a) was talking about users. Performers had to be dealt with in the Performers Protection Act. However, the Copyright Amendment Bill dealt with collecting societies for all artists, including performers. It spanned the Performers Protection Act so that it was not necessary to talk about collecting societies in the Performers Protection Act. Likewise, the Tribunal was also incorporated in the Copyright Act but it spanned the Performers Protection Act.
Ms Theko was still unsure about the impact on the Performers Protection Act. She was worried about unintended consequences. She asked that the task team ensure that the Copyright Act and the Performers Protection Act were aligned. What would happen in the instance of Trevor Noah who was a performer?
The Chairperson returned. No one responded to the question about Trevor Noah.
Mr Mahlobo suggested that, from a process point of view, when the technical amendments had been finalised, the task team had to examine the two Acts with a fine toothcomb for alignment and show that the changes to the Copyright Amendment Bill had been applied to the Performer’s Protection Amendment Bill and that there were no unintended consequences. That would give the Committee a degree of comfort so that the Committee did not wake up later and find an unintended consequence.
Mr G Cachalia (DA) asked if the technical report from the panel of experts would be made available in full to Members. He added that the report should also be made public. He wanted to know about any non-technical recommendations made by the panel, such as policy recommendations.
Mr Macpherson suggested that the technical team submit a final report to the Committee on any issues that they believed were still outstanding or still problematic.
Mr Mahlobo said that there was nothing wrong with making reports available as long as the Committee did not go backwards on matters that the advocate had said had been concluded. Where there was a technical amendment, the team had to advise the Committee on whether the recommended amendment was substantive or not. That was the main test. Substantive issues had been finalised by the Committee. The advocate had been very clear so far to say that the amendments had significance for the strength of the legislation.
The Chairperson noted that the Committee was going through the amendments subsequent to the technical expert panel’s input.
Clause 25 Section 22D Control of collecting societies by authors, performers or copyright holders
Adv van der Merwe stated that, as previously indicated, authors had to be added to performers, etc. The word “author” was added to paragraph 22D(30)(b).
Clause 25 Section 22F
Adv Baloyi had stated that when a collecting society failed and the CIPC had to take over and appoint an administrator, that administrator had to be a skilled person with the necessary experience. It had to be a requirement, not an option, that the Commission applied to the Tribunal for the appointment of an administrator and that the administrator was appropriately skilled. The required skills were added to subsection 22F(5). The clause had been advertised.
Clause 26 Section 23
Subsection 23(b) was deleted. Subsection 23(b) had repealed subsection 2 of paragraph (b) in the Act which dealt with a distribution right. That subsection had been repealed in error and so the repeal was deleted and subsection 2 of paragraph (b) remained in the Act.
Consequently, the deletion of subsection numbering (a) was a technical amendment as there was no need for an (a) once (b) had been deleted.
Mr Mahlobo asked which (b) had been deleted.
The Chairperson explained that it was (b) on page 41.
Mr Mahlobo asked for an explanation. If (b) were to be removed in order to retain (b) in the Act, how would it work technically?
Adv van der Merwe stated that in practice, the team would simply remove subsection 23(b) when redrafting the Bill and subsection 2 of paragraph (b) remained in the Act.
Paragraph 23(a)(1)(b): The words “copyright management” were included to qualify the type of information that could not be tampered with.
Paragraph 23(a)(1)(c):The paragraph referred to an “independent cause of action”. The experts had pointed out that no cause of action could be independent so the word “independent” had been deleted.
Clause 27 Section 27
A technical amendment had been made to paragraph 27(b)(6)(b). The paragraph referred to a single case and so “those’ had to be replaced by “that”.
Subsection 27(c)(9) had used the word “transactions”. However, in the rest of the Bill, the term “uses” had been used and so “uses” had to replace “transactions” in that subsection.
Clause 29 Section 28
The clause was being advertised, although the Committee had flagged it. The question in subsection 28(a)(2) and (b)(5) was about copies which infringed copyright in the country where the copies were made, those copies could not be brought into the country. The Committee had suggested that such copies could be brought into the country if they were made with the permission of the copyright holder. However, the experts had suggesting deleting that proviso because the opening was too broad and created a loophole.
Adv van der Merwe suggested that the matter be addressed once the public comments had been received.
The Chairperson clarified that word ‘user’ was not used to mean person in the Bill.
Adv van der Merwe clarified that only the words ‘use’, ‘uses’ and ‘used’ were found in the Bill.
Clause 29 Section 28R Prohibited conduct in respect of copyright management information
Ms Woods had explained that the words “in the course of business” in subsection 28R(b) would mean that the Bill was broader than international treaties and so the words “in the course of business” had to be deleted. At the same time, the subsection had not dealt with the right to communicate. It was recommended that the words “or communicate to the public a work” be added. The clause then included the right to communicate.
Clause 30 Section 29
Subsection 29(7) required a technical amendment. The word “who” was to be added after “member”.
Clause 37(2) had to include a specific reference to ‘section 1’ of the Intellectual Property Laws Amendment Act because the Act might be implemented in phases.
Adv van der Merwe explained that all of the technical amendments suggested by the panel of experts had been presented to the Committee. In addition, the task team had requested Prof Schonwetter to ensure that the Bill adhered to the three-step test of the international treaties. The question of constitutionality was being addressed by the State Law Advisor and the DTI Legal Advisor.
The Chairperson noted that the Committee had flagged one issue and Ms Theko had requested confirmation that the Copyright Amendment Bill and the Performer’s Protection Amendment Bill were in alignment.
Ms Theko wanted to ensure that the hybrid approach to fair use and fair dealing was retained in both Bills. She did not want to find that the key paragraphs were missing when the Committee came to check the Bills.
The Chairperson noted that Prof Schonwetter would address fair use.
Adv van der Merwe confirmed that Prof Schonwetter would address fair use and the three-step test. The task team would be working on the Performer’s Protection Amendment Bill that afternoon and would check that both Bills still adhered to the hybrid model.
The Chairperson asked Mr Cachalia about the report that he had been looking for.
Mr Cachalia noted that some technical amendments had been included in the Bill but he was interested in the non-technical matters that had been raised by the technical expert panel. He believed that the Committee and stakeholders should have sight of the entire report.
The Chairperson stated that the technical reports were for the Committee itself. The Committee had been seeking advice to pursue and to understand what the stakeholders had already communicated to the Committee.
Mr Mahlobo agreed that the technical team report belonged to the Committee. The experts had been doing technical work to ensure that the work of the Committee met the necessary technical standards. The panel had not reviewed policy. He did not want to re-open the process by looking at policy. The technical report had, actually, been dealt with. If Members wanted the technical report to satisfy themselves that the task team had addressed all matters, they could go through the reports but policy matters could not be re-introduced.
His request had been for the word ‘written’ as in ‘written contract’ to be flagged as that was the only amendment that changed meaning in the Bill. He wanted to be sure of the consequences.
Mr Mahlobo complimented the teams on a job well done and he looked forward to the report-back on the hybrid model as well as the matter of constitutionality. He stated that the Chairperson had done a good job of steering the Bill.
The Chairperson acknowledged that the process was not complete but expressed her gratitude for the work that the teams had done so far.
Mr Macpherson asked where in law the Bill could prescribe who the Commission could accredit in terms of the Broad-Based Black Economic Empowerment Act.
Adv van der Merwe responded that she understood his question. He wanted to know if the Commission, as a creature of statute, had that sort of authority. She stated that she would like to defer the question and give an opinion on the matter at the next meeting.
Ms Theko had heard the advocate say that the team would meet in the afternoon to check the alignment between the two Bills. She was happy with the response so far.
The Chairperson thanked Ms Theko for continuing to keep sharp focus on the Bill as the work of the Subcommittee continued to inform the process.
Mr Mahlobo knew that a number of accreditation authorities were empowered to implement legislation. The (CIPC) Commission would never assume the authority of other authorities empowered by other legislation to issue a written certificate that was not within the competence of the CIPC. If bodies wanted to undertake accreditation, they had to work with other bodies that were empowered in law to do so.
Mr Macpherson did not think that Mr Mahlobo understood. He had asked whether a creature of statute was allowed to reject an application on the basis of BBEEE accreditation. He did not believe that the BBEEE Act allowed for that.
The Chairperson noted that the matter had been flagged and the Advocate would be coming back to the Committee with a response after she had studied the issue. She asked that Members discuss the flagged matter with their parties so that they could give input at the next meeting on the Copyright Amendment Bill. The next couple of meetings would be on the Performer’s Protection Amendment Bill. She reminded Members that submissions based on the advertised clauses would be returned on 25 October 2018.
National Gambling Bill
The Chairperson said that the National Gambling issue was coming up but the various role players, i.e. the Committee, the advocate and legal team, and DTI, had different ideas of the process and where they were. It also seemed that the role players had different ideas as to when the Committee hoped to complete the National Gambling issue. The intention had been to complete the National Gambling Bill by 14 or 15 November 2018. She did not want to dictate discussion but she would like to see it in the National Assembly by the end of November 2018.
The critical issue with respect to the National Gambling Board was that it had been dissolved based on the findings of a forensic investigation regarding maladministration. Everyone knew that as the newspapers had printed reports on the matter. The Minister had then placed the National Gambling Board under administration. That was the critical point. The Board had since been stabilised and things had to move on. The decision had been, and still was, to establish a Regulator. The key technical amendment of the Gambling Act was the re-configuration of the National Gambling Board into a National Regulator.
Committee Members came from different provinces and were aware of the problems in Gauteng, KwaZulu-Natal and Mpumalanga, and many other provinces, if not all. The other problem that the Committee had become aware of was that to move on policy, one needed the meeting of the relevant Minister and the Members of the Executive Council from the provincial legislatures (MINMEC) to approve the policy, but one needed a quorum in MIMEC to make policy decisions. For various reasons some people did not attend so that a quorum could not be reached, which meant that no changes could come about. That was a way of destabilising the process. The Committee had to address the matter of the quorum. One way in which the issue of a quorum had been addressed in the corporate sector and even in the public sector, was to include a clause that said that if there was no quorum for the first, or sometimes second, meeting, the following meeting went ahead without the need for a quorum. The Chairperson also noted that a huge commission had undertaken a review of gambling in the country.
The Committee had hoped to be given a comprehensive Bill by the Department of Trade and Industry the previous year, but it had not come about. The Committee was faced with a certain reality to move forward. Apart from that, it was incumbent on Committee to ensure that Boards could work and develop policy and legislation. The Committee needed to address those critical issues that prevented the Gambling Board from working. The first thing was to create a Regulator for the Gambling Board and, secondly, to deal with the issue of a quorum.
Another matter that had come to the attention of the Chairperson when she was seeking advice was that the Public Protector was conducting an investigation into horse racing in Gauteng, which might impact on the amendments related to the National Gambling Board as the Bill dealt with all forms of racing, including dogs. The Public Protector had to be allowed to complete her investigation. The Committee was also awaiting certain clarification from the Portfolio Committee on Finance about interactive gambling but after the Steinhoff collapse, the Companies Act had had to be reviewed by that Committee.
Committee Members were aware that a Private Member’s Bill had been placed before the Committee in 2014. At that time, the Committee had mandated the Chairperson to write to the Minister, saying that the Committee was awaiting a comprehensive piece of legislation. Unfortunately, as a result of the need for further study, etc, the Bill had not reached the Committee until recently, and it was not the comprehensive Bill that the Committee had hoped for.
The Committee had the authority or the power invested in its Members through the Constitution, and then the Speaker, to amend any Bill placed on the table in the Committee.
The Chairperson proposed that the Committee deal only with the critical issues that were essential to allow the Regulator to continue with the work of the Gambling Board in the National Gambling Bill. That was her appeal. She noted that the Committee had a quorum and asked for someone to second her proposal.
Mr Macpherson gathered that the Chairperson wanted to focus on critical issues, i.e. the Regulator and the issue around quorum. How, from a process point of view, would it take place? Was the Minister going to introduce another version of the Bill, or was Committee going to do a Committee Bill? He was not sure how parts of a Bill could be discarded and only certain parts adopted. Secondly, he also thought there were other pressing matters that had to be included in the Bill.
The Chairperson suggested that the first question be dealt with before Mr Macpherson went on. She knew that a Bill had previously been tabled with only the critical issues included while other points had been set aside for a later Bill. To be absolutely sure about the matter, she had also clarified with Adv Jenkins - from the Parliamentary Constitutional and Legal Office - that a Committee could choose to address only critical issues in a Bill. A similar process was followed with the National Lotteries Bill. If had not been completed in three months, there would have been no National Lottery. In that case, the Committee had put forward a Bill that dealt only with the Chairperson of the Board as an interim measure. The same approach could be undertaken in respect of the National Gambling Act to get good governance back in gambling. It was on that basis that she was making the proposal.
The Chairperson asked Mr Macpherson to raise his second point.
Mr Macpherson was still not clear on process. How did one pick and choose from a Bill?
The Chairperson responded that that information was in the Induction File that he had received when he had joined Parliament and she was not going there. She would provide him with an Induction File if he required one.
Adv van der Merwe suggested the Committee could go through the Bill and do a redraft of what was required in the new Bill. The redraft would go through the Bill line-by-line and only include what was going to go in the Bill. One could, alternatively, do an A-list, but it might become messy because then one was rejecting clauses.
Mr Macpherson appreciated the response by Adv van der Merwe. It had not been too hard to get the response. He wanted to make a substantive suggestion about what else would be important in the new Bill. He suggested that online gaming or gambling was critical. It was not regulated or taxed in any way at all, and there was no mechanism to assist those who went down that route to gamble. There was no ability to tax online gambling. Only R1 million was collected from online gambling each year, which was nothing compared to the winnings that were taking place. Also gamblers had no rights or recourse. A Private Members Bill had been introduced some years previously. It had been called the Remote Gambling Bill.
The Chairperson said that she had earlier spoken about the Private Member’s Bill tabled by Mr Hill-Lewis and she had already indicated why the Committee had to take her proposed route.
An argument ensued between the Chairperson and Mr Macpherson in which the Chairperson attempted to get Mr Macpherson to stop speaking while he continued in an attempt to make his point. Mr Macpherson then threatened that the DA would withdraw from the Committee and there would not be a quorum. The Chairperson indicated that she would call an ANC Member of Parliament to join the Committee to make up the numbers.
Finally, in an attempt to end the argument, the Committee Secretary explained to Mr Macpherson that there was a process to be followed. He could not put his proposal on the table at that moment. The Chairperson had called for a seconder to her proposal and that had to be done before there could be discussion. Mr Macpherson stated that he knew that the Chairperson just wanted to push her proposal through but in a democracy one had the right to be heard.
Mr Williams seconded the proposal.
Mr Macpherson indicated that he wanted to add a third point.
The Chairperson asked if there was a counter proposal.
Mr Macpherson stated that the counter proposal was that a third item be included in the Bill that is, online gambling. The Committee already had a Bill on Online Gambling and it was important to give online gamblers protection as well as, in the light of the massive fiscal shortfalls, to be able to tax the winnings. It made sense, and was logical to do so.
Mr Cachalia seconded the proposal.
The Chairperson said that that proposal was essentially part of a private Members Bill. Mr Macpherson wanted the Private Member’s Bill to be introduced again.
The Committee Secretary indicated that the Committee had to vote on the first proposal. The Committee voted by a show of hands and the Secretary counted four ANC votes in favour of the proposal and two DA votes against the proposal with no abstentions. The proposal was carried.
The Chairperson stated that, although she was entitled to vote, it had not been necessary for her to exercise her right to vote as there was a quorum without her.
The Secretary then put the second proposal to the vote. Two DA Members voted in favour of the proposal and four ANC Members voted against the proposal, with no abstentions. The proposal was defeated.
Mr Mahlobo asked about the quorum. If people chose not participate, they simply walked out of meetings.
The Chairperson said that it was an issue in Parliament that parties that wished to make a political statement, attempted to collapse Parliament by leaving when the bell rang. She had once exercised her right to vote and her second vote as Chair when the issue of solidarity with Cuba had gone to the vote.
The Chairperson thanked all Members for their application to the Copyright Bill. It was one of the better engagements as critical issues had been raised. The Secretary would finalise the Committee programme and the Committee would look at the programme the following day.
Mr Macpherson stated that he was disappointed but not surprised by the way in which the Chairperson had behaved when he had tried to add a substantive matter. It was something that happened every time he tried to make a substantive point and it left a bad taste in his mouth. He pointed out that ANC Members were being disruptive even as he was speaking about the interruption of his statements. He added that the Chairperson attempted to mould things to the way she wanted them, but that it was a multi-party democracy. He was aware that what he had to say made people uncomfortable. He apologised about the route the country had taken. If people wanted to change the way that Parliament operated, they could bring about those changes themselves. He was unhappy about the way in which the resolution had been taken as he had not been allowed to put his substantive point right at the beginning. If that was how the Committee wished to operate for the remainder of the year because they were worried about being re-elected and wanted to use Bills to get themselves re-elected, they could do so. However, he was not going to let things be done in the way that had just happened.
The Chairperson said that if anyone thought Bills were election manoeuvres, that person should look at the Constitution and get a better understanding of the Constitution and the obligations of legislators to ensure that entities, especially Regulators, could operate legally. The Members had an obligation and it was her responsibility as Chair to ensure that nothing in the mandate of the Committee was at risk of not being implemented, purely due to an omission on the part of the Committee. She believed that the Gambling Bill was hardly an election manoeuvre.
The Chairperson thanked the Committee again.
The meeting was adjourned.
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