Performers’ Protection Amendment Bill: consideration of submissions

This premium content has been made freely available

Trade, Industry and Competition

08 November 2018
Chairperson: Mr D Mahlobo (ANC) (Acting)
Share this page:

Meeting Summary

The Committee was briefed by the Senior Parliamentary Legal Advisor on the public submissions on the Performer’s Protection Amendment Bill as well as its response to those inputs. The Department of Trade and Industry also presented its views on the public input.

There were no inputs on the proposed deletion of cinematograph film or the new definition of performance. However, various views were presented in respect of the definition of “fixation’ but the Legal Advisor believed that it could be deleted as the Bill already defined ‘audiovisual fixation’ and would not be using ‘fixation’, except in its literal sense. A proposal regarding the definition of ‘producer’ was rejected because the submissions had suggested a circuitous definition. The suggestions in respect of sound recording were not taken on board as the Bill was to provide for sound recordings as well as sound tracks.

Submissions either suggested other terms for ‘equitable remuneration’ or wished to distinguish between remuneration for musicians and performers. However the Legal Advisor informed the Committee that the term ‘equitable remuneration’ had been in the original Act but had been removed in 1997 and that removal was probably responsible for the inequitable remuneration found in the industry. Furthermore, the intention was for performers and musicians to be able to relate to either royalties or equitable remuneration, depending on the norm in the relevant industry.

The inclusion of standard terms and conditions and minimum content in respect of contracts was accepted by the public although many were against the contract. The Legal Advisor pointed out that most inputs were from large organisations and not performers themselves who were the ones suffering from the power imbalance when signing contracts. The Committee was adamant that including minimum standards was legitimate and stood by its intention to protect performers. There were also suggestions that the Minister would be exceeding his power if he promulgated such regulations. Again the Committee stood firm, also suggesting there may have been a misunderstanding of the limitations of standard terms and conditions. The Minister would prescribe minimum standards, but not a contract per se. The Committee warned that the regulations had to be carefully constructed.

Some of the large media companies complained that keeping track of the use of performers’ work would be burdensome and that the minimum sentences for transgressing the law were draconian. The Committee could not agree and warned that if large media houses did not put systems in place to record the use of performers’ work, it could be viewed as having an intention not to pay royalties. The Committee agreed to ensure that the courts had discretion in terms of meting out minimum sentences.

Submissions requested stronger digital protection measures but the Department noted that it was the first time that digital measures had received protection and the bill should not make it impossible to use the exceptions brought into the Copyright Bill. The Department agreed to include definitions related to technological protection measures or copyright management information in the Bill or via reference to the definitions in the Copyright Amendment Bill as the same definitions would apply.

The clause-by-clause reading of the Bill and the adoption of the Bill would take place the following week.


Meeting report

Opening remarks
The Acting Chairperson welcomed the Committee Members who were in attendance. He had to wait a few minutes for a quorum of six Members. The working documents would be the Performer’s Protection Amendment Bill (PPAB), a presentation from the parliamentary Legal Advisor and a presentation from the Department of Trade and Industry (DTI). Members had also been given a landscaped document summarising the submissions received in response to the call for public submissions on additional clauses in the PPAB.

The Acting Chairperson recapped the process of the (PPAB). On 17 October, it had been decided to advertise additional clauses with a closing date of 1 November 2018.  The Committee had received permission from the National Assembly to expand the scope of the Bill. Having received, reviewed and collated the inputs, the Legal Advisor and DTI would present only on those matters. The Legal Advisor would brief the Committee on the public submissions and the response to those inputs. DTI would add its own responses to the inputs. Those clauses would be discussed by Members and drafted for the next meeting.

The Acting Chairperson stated that the Committee would go through a clause-by-clause reading for an in-principle agreement of each clause, except for those clauses presented at the commencement of the meeting. The Committee would not adopt the Bill that day. At the next meeting there would be a presentation of any amendments the technical team was requested to make. The Chairperson stated that there should be consensus by the following week.

Adv Charmaine van der Merwe, Senior Legal Advisor, Parliamentary Constitutional and Legal Services Office, informed the Committee that the Bill had been certified as constitutional as it stood. A further opinion would only be needed if the Committee had concerns about particular clauses.

The Chairperson alerted the meeting that although the necessary approvals had been sought and given to hold the Committee meeting, the Members were required to vote in the House of Assembly as it was a three-line whip and therefore all Members were obliged to vote.  He wanted that recorded. They would leave the meeting to vote and then return.

Mr B Radebe (ANC) asked that the Secretary confirm that he had received permission to call the meeting.

The Committee Secretary stated that he had sought permission to hold the meeting and approval had been granted by the Chairperson of the House and the Chief Whip of the majority party with the proviso that the Members voted in the House of Assembly when required to do so.

Ms E Ntlangwini (EFF) informed the Chairperson that, at some stage, she would have to go and debate in the House but she would return when she had spoken.

The adoption of the agenda was proposed by Mr A Williams (ANC) and seconded by Mr Radebe.

Apologies were received from the Chairperson. One Member sent an apology as he was debating in the House. Other Members did not send apologies as they were in the House.

The meeting was suspended for a few minutes while the Members went to vote.

On return, the Chairperson asked Adv van der Merwe to take Members through the clauses.

Presentation on Public Comments on the Performer’s Protection Amendment Bill – Senior Legal Advisor
Clause 1 Definitions
Adv van der Merwe informed the Committee that no inputs had been received in respect of the deletion of the definition of “cinematograph film” (Clause 1(c)) nor the substitution of the definition of “performance” (Clause 1(f)).
Clause 1(b): Definition of broadcast. The request was to remove “by wire” from the definition. The DTI would have to advise the Committee.
Clause 1(e): Deletion of the definition of “fixation”. A different definition was proposed for “fixation”. However, the intention was to remove the definition from the Bill as it dealt with both “audiovisual fixation” and “sound recording”, both of which had been defined. The Record Industry SA had suggested retaining “fixation” as it was used elsewhere in the Act. However, fixation was only used to describe the act of literally fixating something and that did not require a definition as it was a commonly used term.

The Chairperson asked DTI for a view on removing ‘by wire’.

Dr Evelyn Masotja, DDG: Consumer and Corporate Regulation Division, DTI, proposed that the words “by wire” be retained although DTI had noted international practice. The definition of broadcast could include wire to allow for flexibility and options, even though it was not as prevalent as digital any longer.
The Chairperson stated that the intention of the Bill was to be inclusive and not exclusive. He recommended that the Committee reject the submission and leave “by wire” in the Bill as suggested by DTI. Adv van der Merwe had explained why there was no need to retain a definition for “fixation”.

The Committee agreed to the proposals.

Clause 1 Definitions (cont)
Clause 1(h): New definition of “producer”. Adv van der Merwe stated that one proposal was to add “or legal entity” to “person”. However, in SA law, “person” included both natural and legal persons. Another proposal was to replace the descriptors “who takes initiative” and “who has the responsibility” with “who produces and creates” as the former were unclear. Adv van der Merwe explained that the problem with using “produce” in the definition of “producer” was that it was a circuitous definition. The wording in the Bill had come from the treaties. DTI could advise if she was wrong.
Clause 1(j): New definition of “Sound recording”. The International Federation of the Phonographic Industry (IFPI) stated that the rights of a sound recording should not be affected by its incorporation in audiovisual works. The definition stated that sound tracks that were associated with an audio-visual work were not included in “Sound recording”. The rights were provided for separately in the PPAB and they differed. The sound recording was about the fixation of sound. DTI could advise.

Dr Masotja stated that DTI supported the position by Legal Advisor in respect of sound recordings and sound tracks in that both definitions should be retained.

The Chairperson asked if the Committee agreed with the proposals by the Legal Advisor and DTI.

The Committee agreed to the proposals.

Clause 2 Section 3(4)(a) and (g) Royalties/equitable remuneration
Section 3(4)(a): Adv van der Merwe stated that public submissions had suggested the replacement of the term “equitable remuneration”. However, the phrase “equitable remuneration” was the phrase used in the treaty. Another submission requested the use of the word “and” between royalties and “equitable remuneration”. Adv van der Merwe explained that in legal terms, unless otherwise stated, the word ‘or’ always included ‘and’. Public submissions suggested that the clause should distinguish between royalties and equitable renumeration for audio-visual performers and for musicians as there were big differences between the two groups. However, neither the Act, nor the Bill defined either term, so the term would be interpreted in relation to the relevant industry. It was not necessary to distinguish between the two as it would complicate the Bill.

Dr Masotja agreed that the two industries had different models of remuneration. However, when it came to a pre-purchase of rights, a performer could do so if he or she was willing to do so, as long as the performer was aware of his or her rights, and it was a contractual arrangement. However, remuneration should still be equitable. Both terms, ‘royalties’ and ‘equitable remuneration’ were used as per the treaties.

Mr A Williams (ANC) noted DTI’s view that there was an established meaning for equitable remuneration which was practised in the industry but the reason for passing the Bill was because the industry had been exploiting performers for the past 150 years. If it was not defined, then the situation in which the artists had been exploited for over 150 years would continue. He thought that it should be defined to stop the exploitation.

Mr Radebe was sceptical about the pre-purchase of rights because of the imbalance of power between the artist and the producers or marketers. The Committee should exert care about that matter.

Adv van der Merwe responded to the question about equitable remuneration. “Equitable remuneration” had been in the original Act but had been repealed in 1997 which suggested why there had been exploitation. The problem in considering a definition was that the term ‘equitable remuneration’ was too broad to define, except circuitously. Pre-purchase was not included in the Bill. That would not prevent people from making such an arrangement, but it would not be enforceable by law.

The Acting Chairperson noted the responses of Adv van der Merwe and stated that the Committee was happy with the decision not to include ‘pre-purchase’ in the Bill. He agreed that it was good to align with international treaties, but the technical team had to make sure that it worked in the South African context and was appropriate in South African law.

The Committee agreed to the recommendations by the Legal Advisor and the DTI.

Clause 2 Section 3(4)(h) and Clause 4 Section 5(a)(vii) Distribution rights
No input was received in response to the addition of distribution rights on the advice of the panel of experts. 

The Chairperson noted that the Committee had previously agreed with the paragraphs on distribution rights and those paragraphs remained unchanged.

Clause 3 Section 3A(3)(a) and (b)(1) Standard Terms and Conditions and Minimum Content
Adv van der Merwe informed the Committee that the public supported the standardised terms and conditions. The Bill could not engage in Labour legislation but the standard terms and conditions would be in regulations. The regulations would refer to the Labour legislation.

A number of comments said that a formal agreement should never be imposed on a sector. However, the standard terms were essential for a contract. There would be flexibility. The trade associations would be consulted regarding the regulations but the standard terms could not be left in the hands of the trade associations because the current, unsatisfactory, conditions would continue to prevail. Inputs suggested that there was no market failure that demanded legislating standard terms and contracts. Adv van der Merwe ventured a suggestion that the Committee would disagree with that view. Other comments suggested that existing contracts had suitable provisions for remuneration. That was clearly not the case. 

Adv van der Merwe did not see a need to amend the clause but suggested that it should perhaps be worded in a more palatable way, perhaps by removing the word ‘compulsory’.

The DDG added that the agreement was very important but the Bill could not seem to suggest that the Minister was given too many powers. It was about minimum standards and not specified contracts.

Ms Mantashe agreed with the notion of including standard contracts as Members had seen artists die in poverty. The technical team knew where the Members stood on the issue.

Mr Williams agreed with Ms Mantashe. The Bill had to specify minimum standards for performers. The Bill only existed because of the lack of protection for performers. The Committee could not allow the status quo. There had to be minimum requirements so that the performers could make some money out of the work that they were doing in South Africa. It could not be wishy-washy.

Mr Radebe said that even in the Copyright Bill, the Committee had decided that the Minister could not prescribe a contract per se between two persons but it could be regulated moving forward that a performer had to see minimum requirements in a contract.

The Acting Chairperson said that, in the main, the responders to the Bill were not individual performers but large organisations.  The Committee had decided that the Bill would not prescribe a contract, but a contract would be compulsory because that was the kind of jurisprudence the country had. There was nothing in law legislating general conditions of a contract. There were general conditions that ensured that exploitation could not happen. The Committee was not budging on that point. The word ‘compulsory’ was not going to be removed. It would remain and the Minister would prescribe the general conditions which would be the minimum required in a contract. So that there was no rigidity, people could add to the basic minimum. Contracts used in the tendering system in South Africa had general minimum conditions to prevent exploitation. The Bill was not defining the maximum requirements so the Committee was not budging on the issue.

Secondly, the Acting Chairperson noted that there was an issue when a contract was entered into by two parties, following which a third party was subcontracted and the third party exploited the performer. If the main client found that people had been subcontracted, there had to be a way to intervene to prevent exploitation. Presenters at the public hearings had told the Committee about brokers who abused people. The country could not allow such injustice. If the laws were wrong, the lawmakers were there to rectify the laws.

The Acting Chairperson observed that the Bill was trying to be treaty-compliant but that could only happen if there was, firstly, compliance with SA laws and a protection of national interests. The technical team should first think nationally and then globally as the country was part of the global village.

The Committee agreed with the technical team’s proposals and the Chairperson’s decision not to remove the word ‘compulsory’ from the clause about minimum standards for contracts.

Clause 3 Section 3B(2) Making equal remuneration subject to a contract
No substantive inputs had been received.

The Committee agreed that the clause would remain unchanged.

Clause 4(c) Section 5(1A) Recording and Reporting
Clause 4(c) Section 5(1B) Criminalisation of the offence

Adv van der Merwe stated that there was a requirement to record and report on the use of work. Failure to comply was an offence.

Public submissions had suggested that subsection (1A) should only apply to licenced users of sound recordings and audiovisual works. They had proposed that the subsection read “(1A) A licensed user who, for commercial purposes…”. However, Adv van der Merwe stated that the Bill included “for commercial purposes”, i.e. it related only to licenced use. The recording and reporting was only in respect of commercial usage, which implied authorisation. She suggested that the subsection could be amended slightly to ensure clarification.  DTI would have to clarify the situation but it was no different from performance protection.

Amongst other issues was the concern that Subsection (1A) implied that all performers’ rights under sections 3 and 5 were downgraded from exclusive rights to remunerative rights. DTI would have to give an opinion on that matter. There was a suggestion that there should also be consequences for someone who negligently failed to register an act. However, the advocate explained that intent was the best standard as it was wide enough to include intent where the person should have foreseen what would happen and failed to take action (dolus eventualis). A company that failed to record usage because it had no systems would be acting with intent. It was difficult to attach criminal liability to negligence, as, by its nature, it was unintentional.
Multichoice complained that the system was burdensome. It was also not clear why the failure to submit a report should be a criminal offence. The minimum fines were draconian. Other submissions welcomed the criminalisation of non-reporting as it was a key problem in the music industry
Adv van der Merwe recommended allowing the courts discretion as had been done in other clauses. The courts would be careful to exercise that discretion.

Dr Masotja stated that DTI’s position was that reporting should be for those who used the work for commercial purposes otherwise people who should be licensed, but were not, would think that it was okay not to report. The clause should be left as it stood. DTI agreed that the Bill should not restrict reporting to only a collecting society. DTI wanted flexibility. The courts should be given discretion as had been done in other instances. As to the downgrading of the rights of remuneration versus exclusive rights, DTI did not see the conflict. There was alignment and the Bill actually provided more rights for performers, i.e. economic rights and moral rights.

The Acting Chairperson called for comments.

Mr Williams stated that the clause was similar to the previous one and that the Committee had to be tough or nothing would change. People would continue using performers’ work and they would not get paid for it. The Committee should not be pushed back. The inputs were from those who had been exploiting the performers over the past decades. The Committee wanted to protect the performers. That was why the Bill was there. It should be hectic if people did not report.

Ms Mantashe agreed with Mr Williams. She had listened to the tone of MultiChoice when it had presented. She recalled that when big companies had been forced to comply with equity, they had budgeted to pay fines rather than be restricted. She aligned herself with of all Mr Williams’ comments.

The Chairperson agreed that the clause should remain as it stood. ‘Licence’ would create exceptions so the word ‘commercial’ should remain. ‘Negligent’ was to be taken out and ‘intent’ had to be inserted. The
Committee agreed with giving discretion to the courts regarding minimum penalties as had been done in the Copyright Bill. There was close correlation between the two Bills.

The Committee agreed with all proposals by the technical team and the Acting Chairperson’s summing up.

The Acting Chairperson reminded the DTI that the quality of the regulations was critical to ensure relief. The ANC had fought against injustices and so, the injustice against performers had to end. The Committee could not afford to permit injustice in that industry. Members should take more interest in the regulations as they were the mechanics of the rules of the game.

Clause 6 Section 8D(3) and (4) Regulations
Adv van der Merwe stated that the section 8D provided for the Minister to make regulations for the minimum standards in contractual dealings and included guidelines for a performance grant consent. The concerns were that it gave the Minister powers that were too broad.

Adv van der Merwe asked Members to look at introductory section in the clause which said that: 8D(3) “The Minister must make regulations prescribing compulsory and standard contractual terms to be included in agreements to be entered in terms of this Act, which contractual terms must include:...” and what the Minister had to include was detailed in the section. It contained only the essentials. The concern was unfounded.

The Acting Chairperson noted that the issue of regulations had been discussed in detail. Certain important things had to be determined as minimum requirements. He added that when the Regulations were drafted, they had to be explained so that everyone understood what was required and how additional issues could be added to the contract.

Clause 7 Section 8E to 8H Technological Protection Measures and Copyright Management Information
The clause dealt with digital protection. The Bill had initially referred the reader to the Copyright Act but the clauses had been taken from the Copyright Act put into the Performer’s Protection Amendment Bill. There were concerns that the measures were not meaningful digital enforcement mechanisms. The measures allowed too broad an exception. The advocate understood what the submissions were saying but it had been a conscious decision to put in baby steps as it was the country’s first venture into digital protection. However, she did agree that definitions were required. The definitions from the Copyright Act could be pulled in.
The Acting Chairperson stated that the only proviso was that the issue of definitions should not mean that there had to be further public comment. It was necessary to complete the Bill as soon as possible because people were suffering.

Mr Williams asked if there was any protection on digital sound. Was the advocate proposing that later on there should be another amendment to the Bill?

The Acting Chairperson explained that there was already protection in the Copyright Bill and that the PPAB could make reference to it or pull the sections from the Copyright Bill.

Mr Radebe asked for the DTI input before the Committee responded.

The DDG stated that digital protection was in the Copyright Bill and that protection had been extended into the PPAB. DTI recommended that the technological protection measures (TPM) not be tightened too much as there was a question of access. There was a need for a balance between access and the concerns of digital copyright holders. There was a need to assess the implementation as that might prove that the concerns were, in fact, not valid concerns.

Ms Meshendri Padayachy, Deputy Director: Intellectual Property Law, DTI, agreed with the previous presenters. It was about a need to strike the appropriate balance.  As in the Copyright Amendment Bill, there were limitations and exceptions. The TPM locked the work up to protect the authors, rightly so, but DTI did not want it so stringent that educational institutions and others were locked out. DTI did not want so many protections that the exceptions introduced in the Copyright Bill could not be used by the education sector.

Ms Mantashe said that the DTI had used a new abbreviation, TPM, which she did not understand and she was worried that DTI wanted to rob the Committee of something.

The Acting Chairperson explained that TPM meant technological protection measures. The Committee had to understand how government used acronyms. There was always a new one.

Mr Williams was sceptical. He understood that the Bill wanted to protect schools and allow the use of documents. But where would one freely use a performer’s work for educational purposes? He needed examples because he did not know what they were talking about.

Ms Padayachy asked Members to remember that it was the first time that both pieces of legislation were introducing digitalisation and so the Department was being cautious. As an example, she referred Mr Williams to the practice of schools taking learners to watch performances, which were followed up with appropriate study. The Bill intended to allow schools to use parts of the performance for analysis and other academic purposes. It was not that the students would be allowed to record the performances and share them with their friends.

The Chairperson noted that no change had been suggested. Although the PPAB was piggy backing on the Copyright Amendment Bill, there were some peculiarities in the PPAB around the question of performers. The question around technology had to be seen in the light of the legislation being amended because of an evolution in processes. The platform was not easy to regulate but if the platform was not regulated, one could not safely do business in that space. The internet space gave endless opportunities, but there were risks.

Clause 8 Section 9 Offences
No inputs.

Clause 9 Amendment to certain expressions in Act 11 of 1967
No inputs.

Clause 10 Transitional provisions
No inputs.

Adv van der Merwe had included a positive comment because there had been so many negative comments about the Bills and the Bills were being bullied by big business: “The amended legislation is reasonable and brings our industry in line with International standards and will help protect performing artists from abuse.”

The Chairperson summarised the clauses that had been presented and the decisions taken. There were no additional clauses to be advertised. He assured Members that their views had been captured. He thanked the public for the submissions and the team for the hard work in putting the Bill together.

The Chairperson stated that he was ready for a clause-by-clause reading for agreement in principle. It would not be a long process. He asked Adv van der Merwe to lead the process.

Clause-by-Clause Reading for Agreement in Principle
Long title
Adv van der Merwe stated that she would not go through the long title as it listed the clauses included in the Bill.

Clause 1 Definitions
The definition of ‘fixation’ had been deleted; the definition of ‘broadcast’ had been changed; deletion of ‘cinematographic’ as a term as it was outdated and replaced by ‘audiovisual’. The definition of ‘communication’ had been changed, the definitions of ‘performance’ and ‘performer’ had been changed to make place for traditional performers and works, and a definition for ‘producer’ had been added. ‘Producer’ was important because the Bill did not refer to copyright holders but producers. The definition of ‘Tribunal’ was aligned to the re-established Tribunal in the Copyright Bill. There was a substitution for ‘reproduction’ and the insertion of ‘sound recording’.

Ms Theko asked whether the Copyright Act was going to be used without any reference to the year of the Act.

Adv van der Merwe clarified that the Copyright Act was defined in the Intellectual Properties Laws Amendment Act (IPLAA) and so when the Bill was amended it could not refer to anything else. However, in the transitional provisions, the Bill contained a meaning for the Copyright Bill to serve as a reference until the IPLAA was implemented.

The Chairperson noted a slight amendment in terms of ‘fixation’.

Clause 2 Section 3A and B Protection of Performers’ Moral and Economic Rights
Clause 2 contained a long list of substitutions for section 3 of the principal Act relating to the protection of performers’ moral and economic rights. Actual rights, including distribution rights, were included.

The Committee approved Clause 2 in principle.

Clause 3 Section 4
The clause allowed for the insertion of sections 3A and 3B in Act 11 of 1967. It dealt with the transfer of rights and the protection of producers of sound recordings. Any consent had to be contained in a written contractual agreement between the performer and the producer. If a performer consented to exclusive rights of fixation then the producer enjoyed the exclusive right of that recording. Section 3B(2) spoke to equal remuneration between a performer and a producer of a sound recording.

The Committee approved Clause 3 in principle.

Clause 4 Section 5
Clause 4 amended section 5 of Act 11 of 1967, as amended by Act 8 of 2002. Section 5 dealt with limitations. Section 5 dealt with limitations, including audio-visual and sound recordings. 5 (a) dealt with audiovisual work and fixations royalty or equitable remuneration; 5 (b) dealt with an audiovisual fixation or sound recording of a performance and how it could be used. Paragraph (c) required the recording and reporting of the use of sound and audiovisual recordings and dealt with the offence and being liable to a fine. Paragraph (d) dealt with consequential amendments while (e) related to the Tribunal which had been defined in the Copyright Bill and (f) dealt with ‘royalties/equitable remuneration’. Paragraph (g) dealt with the discharge of obligations. Other amendments related to various changes made in the Bill.

The Chairperson added that the team still needed to include the point about the discretion of the courts in respect of minimum penalties which would be borrowed from the Copyright Bill.

Clause 5 Section 8
The main amendment was consequential in nature, dealing with fixation and sound recording, but the team had added ‘for purposes which are regarded as exceptions in terms of the Copyright Act’. It was bringing changes from the Copyright Act.

The Committee approved Clause 5 in principle.

Clause 6 section 8D
The clause had been discussed in detail by the Committee. It related to regulations that could be made by the Minister in relation to compulsory and standard contractual terms and in respect of guidelines for performers when granting consent.

The Committee approved Clause 6 section 8D in principle.

Clause 7 sections 8A and 8B
Where the Bill had initially referred to 28Q and 28R in the Copyright Bill, those references had been deleted and replaced by 8E, technological protection measures, and 8F, exceptions in respect of TPMs. 8G dealt with copyright management information and 8H dealt with exceptions in respect of the copyright management information.

The Committee approved Clause 7 sections 8A and B in principle.

The Chairperson asked the EFF Member if she agreed.

Ms Ntlangwini stated that she had been part of the discussions and therefore she was in agreement.

Clause 8 section 9
The team amended section 9 to be able to provide the offences and penalties for the contraventions of 8E, F, G and H and for the fine, or imprisonment not exceeding five years, or both, in respect of the amendment. Many of the amendments were merely technical in nature.

The Committee approved Clause 8 in principle.

Clause 9 section 10 amendment of certain expressions
Phonogram and fixation was replaced with sound recording so that the principal Act was amended. Consequential amendments would ensure that any references to phonogram and fixation in the principal Act would automatically refer to the amendments.

The Committee approved Clause 7 sections 8A and B in principle.

Clause 10 – Transitional provisions
The reason for the transitional provisions was that the Intellectual Properties Laws Amendment Act (IPLAA) had not been implemented, so if the Bill wanted to make use of any definitions in the IPLAA, they had to be included in that clause. Twelve definitions from the IPLAA were listed in the transitional provisions until the IPLAA was implemented.
Clause 10 (b) stated that section 8D of the principal Act would be deemed to be operational, but only in that it allowed the Minister to make the regulations contemplated in section 8D(3) and (4) as added by the Performers Protection Amendment Act, 2019. The IPLAA had to be implemented for the Minister to make those regulations, which it had not been. The deeming provision allowed the Minister to make regulations as if the IPLAA had been implemented.

Section 11 Short title                                                                              
The Chairperson hoped that the President would sign the Bill into law before the end of the fifth Parliament.

He noted that there had not been a large number of changes except for the offence and the penalties.
The drafting team would finalise the issues discussed in the meeting. The following week the Committee would do a clause-by-clause reading for adoption.

Committee business
Mr Radebe informed the Chairperson that the Deputy President would be answering questions in the House the following week and there would be a three-line whip. Also the Minister would be debating in the House and Members would want to attend. He asked that the Secretary to present the programme.

The Chairperson said that the Committee did not want to be interrupted when Members were dealing with important issues so the situation where Members had to rush off to vote should be avoided. The Committee would complete the Copyright Bill the following week and before Friday the following week, the Committee would have concluded the PPAB.

The Committee Secretary stated that the Committee had scheduled the PPAB for Thursday but the Deputy President would be answering questions on that date. The options then were to meet either Thursday at 17:30 or on the Friday. The problem was the three-day rule. The Committee would have to meet on Thursday to be ready for the debate on 21 November 2018 when the Minister would be available. An alternative was to have all three Bills ready for 27 November 2018 which was the other date that the Minister would be available. There were caucuses on Thursday mornings.

The Chairperson suggested that it be done on Friday.

Mr Radebe said that he did not want to do it on Friday because it would not meet the three-day rule. Friday was cutting it too fine.

The Committee agreed to meet after the House sitting on Thursday.

The Chairperson agreed that the meeting would start at 17:30 on Thursday. That would give the technical team time to ensure that the document was clean.

The Secretary stated that although the Committee had permission to meet on 13 November 2018, the House programme on Tuesday had several reports that would call for division and so it would not be wise to try and hold a meeting on 13 November in the afternoon. However, there was a meeting on Tuesday morning to address the legal opinion on the Copyright Bill. He pointed out that all meetings on Tuesdays would start at 11:00.

The Chairperson asked the Advocate to make the changes to the PPAB and to present them to the Committee on Tuesday.

The Secretary stated that on Wednesday, the Committee could meet in the morning or afternoon as the Security Cluster would be answering questions in the House.

The Chairperson determined that there would be a short meeting on the National Gambling Amendment Bill on Wednesday morning.  On Thursday, the Committee would meet at 17:30.

The Chairperson commended the good work of the technical team and thanked the Committee and all who had made the work easier by submitting comments on the Bills.
The meeting was adjourned.


Share this page: