Copyright Amendment Bill: consideration of Legal Opinion

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Trade, Industry and Competition

13 November 2018
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The Portfolio Committee on Trade and Industry had had several concerns about the constitutionality of the Copyright Amendment Bill, particularly in respect of the clauses that dealt with retrospectivity. The Senior Legal Advisor had recommended a phased in approach for implementation of the Bill with those clauses not being implemented until regulations had been written pertaining to the implementation of retrospectivity.

The Office of the Chief State Law Advisor had been requested to provide a legal opinion on the constitutionality of the Bill. The Principal State Law Advisor had been assisted by a senior legal advisor from the Department of Trade and Industry and a senior legal advisor in the parliamentary Constitutionality and Legal Services Office.

The Committee was informed that it had been an extremely difficult opinion to write and that another legal panel might well come up with a different opinion. The opinion provided the legal context in which the clauses had been viewed and provided references to judgements in the Constitutional Court. The difficulty lay in Clauses 5, 7 and 9. The State Law Advisor was of the view that it was quite conceivable that there might be instances where prejudice could result (i.e. deprivation) that would not be balanced by the benefits that the proposed amendments envisaged to achieve. If the deprivation tests were applied to that provision, the legal opinion could not argue that there was no deprivation. As the clauses were identical except that Clause 5 referred to literary work or musical work, Clause 7 referred to visual artistic work, and Clause 9 referred to audiovisual works. The opinion was, therefore, that deprivation applied to all three clauses and the Constitution did not permit arbitrary deprivation.

The Senior Legal Advisor admitted that the regulations could make the clauses constitutional if appropriate management and procedures were put in place. However, as those procedures did not yet exist, he could not guarantee that they would prevent the deprivation from being arbitrary. He added that the Act could not be challenged in the Constitutional Court until the three clauses had been signed into law and the intention was not to sign them into law until the regulations had been written.

Clause 13 dealt with exceptions and limitations to copyright but the State Law Advisor was of the view that the relevant exceptions or limitations were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. There were no constitutional issues with the other clauses under review.

There had been a concern that the Bill was giving the Executive too much power. The Committee was also determined to ensure that the regulations were adequate for the purpose and met the requirements for public consultation. The Committee decided to include in the Bill a requirement that the regulations be sent to Parliament before they could be published. Parliamentary procedures would then apply which meant that the public would be invited to make submissions on the regulations and, if deemed necessary, public hearings could be held, and amendments could be made, if deemed necessary.

The Committee also decided to include a proviso that a socio-economic impact assessment should be carried out by the Department of Trade and Industry and a report produced prior to the finalisation of the regulations. Those two tenets needed to be added to create more certainty and provide checks and balances. In addition, the vague commencement date for the three clauses had to be replaced with a specific date for the implementation of those clauses.

In respect of the collecting societies, the Committee decided to address the question of transformation by including elements of transformation that the collecting societies would have to adhere to.

Members were frustrated that the legal opinion had been written on 9 November 2018 but the Committee had only received it that day and it had been difficult to prepare for the discussion at that late stage.

One Member asked about the exemptions in clauses 13 and 19 where there was an importation of the fair use concept found in America. The Committee had seen the opinion given by Dr Tobias Schonwetter but it had not been a legal opinion. The Member wanted a senior counsel’s opinion on how importing fair use into South African law would impact on South African law. The Member was not against fair use but one could not accept foreign law into South African law without anyone understanding it. That was a dangerous position.  The Member supported the fact that authors had to be protected and should get their rights down the line as their products were exploited, but, because of the treaties and international reciprocity, South Africa would have to do the same for foreign talent when their works were used in South Africa, including the works of highly paid Hollywood actors. There should be a balance between money paid to SA authors and that paid to foreign authors. South Africa would be repatriating a lot of money in terms of a national obligation.

The majority of Members accepted the State Law Advisor’s legal opinion and voted against requesting a second legal opinion from a senior counsel. The Committee was ready for a clause-by-clause reading of the Bill.

Meeting report

Opening remarks
The Chairperson noted that Sunday, 11 November 2018 had been Remembrance Day.  It was a war in which South Africans of all racial groups had participated in, but it was only very recently that Black African South Africans were actually acknowledged as having fought. It was a memorable event for her as she had been in London when the United Kingdom had belatedly recognised the heroism of black Africans and she had been personally invited to meet the Queen on the occasion. She never forgot the anniversary and noted that Sunday had been the 100th anniversary of the end of the war.

She thanked Mr Mahlobo for chairing in her absence. He had chaired very effectively and managed to get everyone to agree. She did not have occasion to “call home”. She thanked all Members of the Committee, and especially thanked the whip of the Committee.

On her return, she heard that for the rest of the year, Committees would only sit from 11:00 on Tuesdays, much to the delight of all parliamentarians. She went along with the decision of the Office of the Speaker.

The Chairperson said that the Federal Republic of Germany indicated that the President of the Federal Republic, Dr Frank-Walter Steinmeier, would be paying a state visit to South Africa from 19 to 21 November 2018. There would be approximately 16 representatives from the German corporate, industrial business sector. The German Minister of Economic Affairs and Energy would also be a member of the delegation. The delegation had requested to engage with the Portfolio Committee on Trade and Industry for half an hour or so, the following Tuesday. She noted that the Portfolio Committee had benefitted from such an engagement in Germany. She put it to the Members of Committee that notwithstanding the decision that Parliament should only meet from 11:00 on Tuesdays, the Committee might have to start earlier. It was normal practice to meet earlier or later if there were international visitors. She had to confirm the date as the notification said Tuesday, 21 November but, of course, Tuesday was 20 November.

The Chairperson asked if she could have an in-principle agreement that the Committee meets with the delegation.

Mr B Radebe (ANC) said that Germany was a strong trading partner of the country and, out of respect for the Head of State; the Committee had to be courteous enough to honour a request to meet with them. He requested that the Chairperson go ahead and make the arrangements.

The Chairperson also informed the Committee that all Chairpersons had been requested to ensure the completion of priority legislation. All legislation had to be finalised for the National Assembly by 30 November 2018 which really meant that the Committee should complete its work by 21 November 2018. A fall back position would be about 25 November 2018.

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

The Chairperson added that the parliamentary programme for Wednesday the following week had been changed, which impacted on the Committee programme, but the Secretary would bring the changes the following day.

Consideration of the Copyright Amendment Bill
The Chairperson asked Mr Mahlobo to explain exactly how far the Committee had gone the previous week.

Mr Mahlobo indicated that the legal team had been requested to take the Committee through the legal opinion and then Members would have the opportunity to give input and to consider the Bill in the light of any constitutional issues raised in the legal opinion.

The Chairperson called on Adv Johan Strydom, Senior Legal Advisor at the Department of Trade and Industry, to present the legal opinion.

Opinion re: Legal Validity or Constitutionality of Certain Provisions of the Copyright Amendment Bill, 2018
Adv Strydom explained that Adv Gideon Hoon, the Principal State Law Advisor in the Office of the Chief State Law Advisor was attending another Committee meeting but he (Adv Strydom) had been part and parcel of the discussions and he had been asked to present the opinion to the Committee. Adv Hoon and he had also discussed matters with the Senior Legal Advisor in the Constitutionality and Legal Services Office, Adv Charmaine van der Merwe, who had made valuable input.

Adv Strydom informed the Chairperson that it was a lengthy opinion so he would refer to certain portions of the legal framework and then he would refer to certain specific provisions in the Bill. Clauses 5, 7, 9 were exactly the same and so the opinion for Clause 5 applied equally to Clauses 7 and 9. In addition, the State Law Advisor had been requested to give an opinion on Clauses 3, 13, 22(b), and 23(b). He referred the Committee to the executive summary which summarised the conclusions.

Clause 3 (Amendment to section 5(2) of the principal Act) and the consequential amendment to Clause 22(b) Substitution of section 21(2) of the principal Act)
The Legal advisors held the view that the proposed amendments did not interfere with current copyright and thus no deprivation resulted. Clause 22 was consequential to Clause 3.

Clause 5 (insertion of section 6A in the principal Act – in respect of subsection (7) only)
The State Law Advisor and Adv Strydom were of the view that it was quite conceivable that there might be instances where prejudice could result (deprivation) that would not be balanced by the benefits that the proposed amendments envisaged to achieve. If the deprivation tests were applied to that provision, the legal opinion could not argue that there was no deprivation.

Clause 7 (insertion of section 7A in the principal Act – in respect of subsection (7) only)
Same as in paragraph (B) above.

Clause 9 (insertion of section 8A in the principal Act – in respect of subsection (7) only)
Same as in paragraph (B) above.

Clause 13 (insertion of sections 12A to 12D in the principal Act)
The legal Advisors were of the view that the relevant exceptions or limitations were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Clause 23(b) (Substitution of section 22(3) of the principal Act)
The reversion was right and fair.

Clause 25 (Insertion of Chapter 1A in the principal Act)
The legal advice was that there was adequate justification in law for the principle of one collecting society per intellectual property right.

Adv Strydom referred the Committee to the Legal Framework which provided the legal context in which opinions had been formed. That section was followed by a discussion in which Adv Hoon and Adv Strydom explained how they had reached their conclusions. He specifically noted that, in law, Intellectual Property was considered intangible property and so copyright had to be dealt with as property. The most contentious clauses were clauses 5, 7, 9. Copyright was assigned before the commencement date of the current amendment. If the tests of deprivation were applied in respect of those clauses, the legal advisors found it very difficult to say that there was no deprivation. There would be a signed and legally recognised contract which, for example, allowed a publisher to produce a book, bearing whatever costs were necessary. With the commencement of the Amendment Act, the publisher might have to pay additional royalties to the author, over and above the terms of the contract signed by the two parties. The question was: was it fair to ask the publisher to pay out additional royalties without due regard to the costs incurred by the publisher just to recoup the original cost of the contract?

Adv Strydom stressed that the opinion dealt with a very difficult matter and there could be other opinions if different legal persons were asked for an opinion. He thought that clause 38, the barring clause: “which date may not precede the regulations of section 5, 7, 9” to be very important as there was unconstitutionality in the Bill as it stood, but there was ample scope to advance an opinion to the contrary on reading clause 38. It would not be not possible to test the regulations in court until the regulations had been put in place and the President had signed the legislation into law.

Adv Strydom believed that the limitations could be viewed as fair deprivations and justifiable. The Bill did not provide for a limitation on collecting societies but could they be limited to one society per right for proper oversight.  He noted that Parliament had, in many instances, allowed a limitation of bodies for sound administration.

Adv Strydom wanted it on record that the legal opinion had been presented as requested by the Committee and the Committee would have to decide how to fairly proceed. He assumed that the Committee would like advice about proceeding. He saw no reason, based on policy, for not keeping the provisions in the Bill intact as they might eventually be considered correct once the procedures and processes had been dealt with through regulations.

Mr Mahlobo thanked Adv Strydom and Adv van der Merwe. At the previous meeting, it had been agreed that the legal opinion would be presented and he thanked them for doing so. The opinion in respect of clauses 5, 7 and 9 showed that the Committee had applied its mind. It was not an easy Bill as it was broad but 7A had to be read with 7B. The Committee might consider a small insertion so that there was no void in the law. There had been a concern that the Bill was giving the Executive too much power. He wanted to add that those regulations - to be prepared by the Minister - had to be heard by, and approved by, Parliament so that, in response to the public submissions, the regulations would be subject to the parliamentary process of engaging with the public and calling for submissions on the regulations.

Mr Mahlobo added that the regulations could not be finalised without the socio-economic impact assessment. The ANC was of the view that those two tenets needed to be added to create more certainty and a check and balance of powers. That would address sections 5, 7 and 9. The barring was, therefore, conditional: it was subject to a parliamentary process and it was subject to a socio-economic impact assessment.

Mr Mahlobo noted that, in respect of the collecting societies, the Committee had decided to address the principle of right of association so the single society per right was not in the Bill and the Committee wanted to leave it out. However, something else had been inserted in respect of collecting societies and that was the question of transformation was to be added in Clause 25 paragraph 22B(4)(c).

Mr D Macpherson (DA) was frustrated that the legal opinion had been written on 9 November 2018 but the Committee had only received it that day and it was difficult to prepare for a discussion when an opinion was not received before the time. It had been promised the previous day. It was very difficult to apply his mind when it was thrown on the table during the meeting.

Mr Macpherson asked why, when requiring an opinion on the National Credit Amendment Bill, Senior Counsel had been hired to give the opinion but for the Copyright Bill, it was sent for an in-house opinion. The opinion was very thin. References were not always given and the conclusion was thin. The advocate was banking on regulations to prop it up and make the legislation legal. That was wrong. Legislation had to be sound from the get-go.

Mr Macpherson believed that Adv Strydom’s opinion that IP was not tangible was very wrong. IP was tangible and so he was concerned that that misunderstanding could have clouded his judgement of the matter. The opinion was thin on detail and rationale and the short time given to Members to consider the opinion was just unacceptable.

Adv A Alberts (FF+) referred to clauses 7A, B, C where the Advocate had admitted that there might be constitutional problems with the way that the clauses were drafted at the moment but it might be cured by the subclause 7B although, of course, no one knew what the content of those regulations might be. He could not see how the Minister could cure the Bill through regulations. He could not think of any examples as to how it could be done and asked Adv Strydom if he could enlighten the Committee with some examples.

Adv Alberts referred to the exemptions in clauses 13 and 19 where there was an importation of the fair use concept found in America. The Committee had seen the opinion given by Dr Tobias Schonwetter but it had not been a legal opinion. He wanted to see a senior counsel’s opinion on how importing fair use into South African law so that the Committee could understand how fair use would be used in South African law. Members had to have an understanding of fair use in the law. That was not to say that any Members were against fair use, but one could not accept foreign law into SA law without anyone understanding it. That was a dangerous position. 

Members needed to know how balance would be created between the rights of authors and the exceptions created. Members should also understand that part of the amendments were designed to enhance conditions for authors who were often poor people who were exploited. When it came to certain situations where an author would not get any royalties, there had to be sufficient argument in terms of law, and morally as well, for those authors to accept that they would not get any royalties. That was why there needed to be an understanding of fair use in SA law and how it would affect authors.

Adv Alberts added that he would appreciate time to study the legal opinion.

Mr G Cachalia (DA) stated that he had been adequately covered by his colleagues. He fully endorsed the request for a senior counsel opinion on fair use and, at the same time, an opinion by senior counsel on the constitutionality of the Bill.

Mr Radebe thanked the advocates for the legal opinion. He appreciated the work that they had done but, as Adv Strydom agreed, it was only one opinion. Someone else might have a different opinion. The Committee could not use the opinion. For example, during the National Credit Amendment Bill, a legal opinion had been obtained, but at the end of the day, the Committee had made the decision. The Committee was ready to deal with the clause-by-clause reading on Thursday that week.

Mr Radebe said that Adv Alberts had been very clear about the elements of fair use in discussing the Bill, so he wanted to know what had changed. The Committee had used comparative studies and there was nothing wrong with taking something from another country. Nelson Mandela had said that ‘we should take the best from the East and the best from the West”.

Mr Mahlobo said that the Committee was at the end of the process. The Committee had gone through difficult times over a long period and had done well. He agreed that the opinion should have been circulated earlier but the request for an opinion by senior counsel was a new view that was disingenuous as the Members should have said that they wanted a senior counsel view upfront. The Committee had given the work to two senior advocates and they had been assisted by Adv van der Merwe who had worked very well with the Committee. From a process point of view, he was convinced that the Committee had done well.  Members needed to focus on the issues in the opinion and not raise other issues.

Mr Mahlobo referred to the balances and checks. The ANC contended that the Committee had dealt with that adequately. Clauses 5, 7, 9 had always had to do with retrospectivity and the legal advisor had been aware of it and had indicated that the Minister’s regulations would be a caveat but that process needed balances and checks that was where the parliamentary process came in.  The commencement clause allowed for a staggered implementation so that the process was correctly implemented. The DA had always asked that contractual agreements be included and respected.

Mr Mahlobo believed that Members were bringing issues just to hold the Committee back. He proposed that the Committee accept the opinion. If there was a different view, he wanted to hear it on Thursday when the Committee came together to do the clause-by-clause reading. That was a firm proposal.

The Chairperson asked Adv Strydom to clarify the comment that he had made that deprivation was always expropriation but that expropriation was not always deprivation. Could he just clarify expropriation and deprivation in terms of the Constitution?

Adv Strydom said that expropriation automatically encompassed deprivation but not all forms of deprivation were tantamount to expropriation. There were more stringent strict requirements for expropriation. Expropriation was a stronger form of interference with rights than deprivation.

The Chairperson said that Adv Strydom had outlined the opinion in terms of retrospectivity. Her limited legal knowledge of the Constitution was that the Constitution expected legislation to effect redress. She asked if redress applied to the principles of expropriation and deprivation.

The Chairperson wished to address technicalities and asked for the attention of Members. With respect to the request made by the Committee for a legal opinion, it would have been better to have the copy of the opinion earlier but she was pleased to have Adv Strydom taking the Committee through. The point about the timeliness of receipt of the opinion was recognised and acknowledged.

Secondly, the Chairperson stated that the external legal opinion was not an issue because it was not essential and Parliament had, until recently, only taken internal opinions. That was what the parliamentary Constitutionality and Legal Services Office was intended to do: to provide a legal opinion. She wished Members to be persuaded that it was not essential to request an external opinion.

The Chairperson asked Adv Strydom to respond.

The Chairperson added that Parliament was the premier institution and Members were required to be present when Bills were discussed.

Adv Strydom said he could not be his own judge. He had given his opinion as requested. He offered no apologies for the opinion. The conclusions on page 24 were merely a concise summing up of the paragraphs which dealt with the body of the opinion. Regarding IP, he confirmed that it was called in law, intellectual or “immaterial’.

He told Adv Alberts that section 7A was dealing with a number of things and the ambit was wide. All that he was saying was that section 7A could not be read in isolation. It had to be read in connection with section 7B. There had to be procedural fairness; research had to be conducted; there had to be certainty as to what the scope and ambit of the application would be. The constitutional challenges might be addressed by way of what was eventually found in the regulations and also the clauses could be kept in abeyance until the issues had been resolved. He could not say with absolute certainty that the regulations would fulfil the constitutionality requirements, but it was a real possibility. The commencement clause also allowed that the clauses would not be implemented until some sense of the management of the process had been arrived at.

Adv van der Merwe said that Mr Mahlobo had proposed that the Committee should add that the regulations should come to Parliament for approval. That was absolutely acceptable and had been done with the National Credit Amendment Act. That would address the fears of the public that the Minister might not do the necessary consultation. Parliament was constitutionally obliged to consult.

Adv van der Merwe added that Parliament could not delegate legislation and have a concern in the back of its mind that the legislation might not be constitutional. When Parliament delegated power to the Minister to make the regulations, it did so with the thought that the Minister would act constitutionally and within the scope of the law. The Committee had considered the matter at length and one of the proposals was that someone who felt aggrieved could approach the Tribunal or the CIPC and would get a decision after a hearing. It would not be a blanket approach but decisions would be made on a case by case basis. The problem was that the Bill could not incorporate that approach because it might not be the only solution. The Minister should consider that and other possibilities.

Adv van der Merwe asked whether the proposed requirement that Minister first did a socio-economic assessment should be in the Bill or did the Committee simply expect Minister to do it. She proposed that the commencement date of the Act in Clause 38(2) be more specific. She asked whether she could amend the date.

Adv van der Merwe confirmed that the decision to request a Senior Counsel opinion was a decision of the Committee, but it did have a cost implication, although that should not deter the Committee. She reminded the Committee that the CLS Office had been set up to provide Committees with assistance in respect of the constitutionality of a Bill. In respect of the National Credit Amendment Act (NCAB), that had been a Bill that had borrowed processes from other countries and had attempted to adapt them to the SA context. It had never been done before and it had been a little more complex, which was why the Committee had called for an opinion from senior counsel. As far as fair use was concerned, one had heard a lot from one side of the sector but there had been voices of the actors and performers who were satisfied and felt that the Bill would protect them. DTI had also indicated that internationally there had been support and praise for the Bill.

Dr Evelyn Masotja, DDG: Consumer and Corporate Regulation Division, DTI, had noted the opinion and the issues raised. DTI would be working on the socio-impact assessment and was already considering the practical issues that would inform the regulations.

The Chairperson asked for a formal proposal.

Mr Radebe supported Mr Mahlobo‘s proposal made earlier in the meeting.

Mr Mahlobo repeated his proposal which was to get the wording correct on 7D which needed to speak to the comments on the regulations and the requirement for parliamentary approval, as well as the requirement for a socio-economic impact study. Those changes could be made before Creda finalised the printing. It was a technical amendment and not substantive but it was fundamental in terms of the checks and balances. He thanked Adv vd Merwe but the Committee had to take the decisions and would ignore the advice, but would look at the points made in the conclusion. He agreed with the suggestion made by Adv van der Merwe about the date. It was not a new matter but had already been discussed by the Committee.

Mr Cachalia had heard the advocate talk of cost. The cost of getting it wrong was huge as it would affect people, education, etc. and the Committee needed to be mindful of getting it right. The Bill had received scathing attacks from lawyers and academics. Surely the Committee had to ensure that the Bill was not dogged by contestation? He agreed with the need for a second opinion. There was a clear presumption in law about retrospectivity etc. Even the Chairperson had referred to it. The Committee would be remiss if it did not look into the importation of fair use law and the constitutionality. If the Committee did not get a second opinion to address the issue, it was heading for craziness.

Mr Macpherson said that when he measured the opinion that had been delivered against what Adv Budlender had given in the NCAB; they were two different documents in terms of how they reached the conclusion and the substance of the conclusion. He referred to page 23 of the legal opinion which said that there were numerous examples but the document did not give the examples. It was problematic that an impact assessment was to be done after the Bill, and like the assessment for the NCAB, it would probably never be done. Without an assessment, it was impossible to tell what legislation did on a broader scale. It was problematic to write legislation without considering a socio-economic impact assessment. He was having the same discussion again. One could not understand what impact legislation would have without the assessment. He seconded Mr Cachalia’s proposal.

Adv Alberts thanked Adv Strydom for his answers and asked for clarity on retrospectivity and regulations by the Minister which might or might not be constitutional. Did the matter fall under section 36 of the Constitution where certain rights could be curtailed, and if so, could subsidiary legislation be used as per section 36 to curtail rights, or was that also an uncertainty?

Adv Alberts asked the DDG about the socio-economic impact assessment, which was a very important study. Would the assessment be undertaken in-house or would it be outsourced or a combination of both? He would like the study to look at the various interpretations of fair use. Under fair use, what percentage of a work could be copied e.g. 10%, 40% or 100%. That would give the Committee some idea of what fair use was instead of having it litigated all the time. It would not be poor artists but film makers and publishers who would certainly go to court and it would be good if the Committee could establish sufficient certainty that it would not be necessary to approach the courts endlessly.  

Adv Alberts noted that commissioning had been taken out as an exception so if a work was commissioned, royalties still accrued to the original authors. Could the DDG do an economic assessment of what the effect of that would be? He supported the fact that authors had to be protected and should get their rights down the line as their products were exploited, but what worried him was that, because of the treaties and international reciprocity, SA would have to do the same for foreign talent when their works were used in SA. That would mean that SA would be paying more money to overpaid Hollywood actors because their work had been used in SA, e.g. by SABC. He thought that there should be a balance between money paid to SA authors and that paid to foreign authors, and consideration given to the amount of money that would have to be repatriated overseas. SA would be repatriating a lot of money in terms of a national obligation.

The Chairperson asked Mr Radebe to close off Committee comments.

Mr Radebe stated that he could not agree with Mr Cachalia and his request for a new opinion from senior counsel. Mr Cachalia should have said so previously. The socio-economic assessment study had to be finished before the regulations were promulgated so that the report could be considered against the proposed regulations. He reminded Members that every person had a right to go to the court and the Committee could not run away from litigation. The ANC accepted the legal opinion and would work with it going forward. He noted that the framework of Roman Dutch law was itself imported at one stage.

The Chairperson asked the Committee Secretary to take the Committee though a voting process in terms of
whether the Committee should request a legal opinion from a Senior Counsel as proposed by Mr Cachalia and seconded by Mr Macpherson.
In favour: three Members (DA/FF+)
Opposed: five Members (ANC)
No objections.
The motion was not carried

Second proposal: That the procedure in section 7(b), be supported by a firm commencement date, the regulations be subjected to a presentation to Parliament together with a technical socio-economic impact assessment report as proposed by Mr Mahlobo and seconded by Mr Radebe.

In favour: five Members (ANC)
Opposed:  three Members (DA/FF+)
No objections
The motion was carried.

Mr Macpherson stated that he had proposed that the Committee receive the socio-economic impact assessment report (SIAS) before the legislation was approved so that the Committee understood the impact of the legislation.  

The Chairperson stated that that proposal had been put to the Committee before and had not been accepted. She was looking at new proposals.

Mr Cachalia informed the Chairperson that there had been a proposal on looking into the constitutionality of the Bill in respect of retrospectivity.

Mr Mahlobo stated that the reason that the ANC had insisted on clauses 5, 7 and 9 was that they all dealt with retrospectivity and the ANC had made a determination that the clauses were to be included.

The Chairperson informed Mr Cachalia that, in terms of retrospectivity, the issue had been addressed.

Further discussion
Adv Strydom referred to page 16 para 22 of the opinion. The quote from Veldman versus Director of Public Prosecutions (Witwatersrand Local Division) in the Constitutional Court judgement contained a fundamental principal and was clearly put. In fairness, had it not been for subsection 7 para (5) and the amendment, he would have conceded that it was trite retrospectivity:

“Generally, legislation is not to be interpreted to extinguish existing rights and obligations. This is so unless the statute provides otherwise or its language clearly shows such a meaning. … also central to the rule of law is the principle of legality which requires that the law must be certain, clear and stable…”

Adv Strydom added that the whole process had not been defined but there was a real chance to confront the uncertainty. The constitutional fears might be allayed. Primary legislation had to be substantive but the issue of retrospectivity could perceivably be allowed by the Constitution, depending on the detail of the regulations. He could not, at that stage, say whether those regulations yet to be written would make the Act constitutional. As to subordinate legislation, there was no barrier to any legislation, so it could well be subordinate legislation.

Adv van d Merwe said that there was case law that dealt with regulations affecting rights and the Bill of Rights. She referred the Committee to the case of Dawood versus Minister of Home Affairs, 2000, and the Constitutional Court decision where the court had confirmed the constitutionality of the regulations, and that, provided that the legislation was properly clarified, the right to make regulations could be delegated. The Act had to be properly executed.

Dr Masotja acknowledged the inputs of Adv Alberts. DTI would be looking at outsourcing the work, but the Bill did provide for commissioned works. She stated that while there were lots of calls for litigation, others were happy with fair use. DTI would be looking at the nitty gritties around the issue in the assessment.  There was legislation that said that fair use was not going to allow the wholesale copying of everything. There were safeguards and the context had to be taken into account. With fair use, people had to be responsible and not copy volumes.

The Chairperson thanked Adv Strydom.

Committee business
The Chairperson noted that the discussion on the legal opinion had taken longer than anticipated. Lunch was from 12:30 and the House sitting was at 14:00, but she would like to chart the way forward. The following day, the Committee could look at both the National Gambling Bill and the Performer’s Protection Amendment Bill. The revised Committee Programme would be available the following day.

The South African Sugar Farmers Development Association (SAFDA) was celebrating its third anniversary on Saturday 24 November 2018 at uMgungundlovu sports ground in KwaZulu-Natal. An invitation had been issued to the Committee and Members who could attend, should do so.

Mr Radebe was unable to attend but he believed that some Members of the Committee should attend as the Committee had had a good engagement with SAFDA. In principle the Committee accepted the invitation and Members would attend where they could.

The Chairperson asked whether the legal opinion had been accepted in principle. In order to deal with the clause-by-clause formal consideration of the Copyright Amendment Bill, Adv van der Merwe had to produce a clean document for Thursday.
Dr Masotja informed the Committee that she had circulated documents on the WIPO and Berne Treaties for information, as previously requested. It was information and not for discussion.

Performer’s Protection Amendment Bill
The Chairperson asked if Adv van der Merwe could conclude the Performer’s Protection Amendment Bill in the next few minutes.

Mr Mahlobo informed the Chairperson that when the Committee had concluded its work on the Bill, the only thing outstanding was the question of the word ‘transformation’ and the technical team had been requested to insert three elements of transformation as indicated by the Committee. Secondly, no legal opinion had been sought and the Committee was ready to go clause-by-clause. It was not even a substantive issue.

The Chairperson stated that the latest version of the Performer’s Protection Amendment Bill contained the amendment required by the Committee so the Committee was on track for the clause-by-clause deliberation of the Performer’s Protection Amendment Bill. The Committee would then address the National Gambling Amendment Bill. The time for the Thursday evening’s Copyright Amendment Bill would have to be extended.

Closing remarks
The Chairperson thanked the Committee and the technical team for the hard work, and the Committee staff who seemed to have worked harder than usual in her absence.
The meeting was adjourned.


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