Parliamentary Legal Advisor: Section 79(1) referral of Performers’ Protection- and Copyright Amendment Bills
President’s Letter: Referral of Copyright Amendment bill and Performers’ Protection Amendment Bill to NA
The Portfolio Committee on Trade and Industry met on a virtual platform for a briefing by the Office of the Constitutional and Legal Services on the two Bills remitted by the President: the Copyright Amendment Bill and Performers’ Protection Amendment Bill.
The President was of the view that the Bills should have been classified as section 76 Bills, i.e. to be considered by the National Council of Provinces, because they might relate to “trade” and “cultural matters”. There were reservations about the retrospective and arbitrary deprivations of property in clauses 5, 7 and 9 which inserted sections 6A(7), 7A(7) and 8A(5) in the Copyright Bill; and the impermissible delegation of legislative power to the Minister in clauses 5, 7 and 9 of the Copyright Bill. Further reservations included a lack of public participation related to the “fair use’ concept contained in the Bill and the copyright exceptions, as some clauses may constitute arbitrary deprivation of property and affect the right to freedom of trade, occupation and profession. Finally, there was a question regarding the compliance of the Bills with International Treaty implications.
Members were reminded that if even if they had concerns about other aspects of the Bills, in terms of process, the Committee had to restrict its deliberations to the six reservations raised by the President and could not engage with any other aspect of the Bills.
Members asked about tagging, fair use and international treaties, retrospectivity, public participation, delegation of powers to the executive and the referral of Bills to Traditional Leaders.
It was agreed that parties provide will submit their positions, in writing, on each of the reservations, ahead of the meeting the following week.
The Chairperson welcomed Members and everyone on the platform.
The Secretary confirmed the attendance of Members.
The Chairperson noted that the Agenda indicated that the Committee would be receiving a briefing and deliberations on the remitted Bills.
The Committee Secretary stated that Adv Charmaine van der Merwe, Senior Legal Advisor, Office of the Constitutional and Legal Services (OCLS), would present a high-level presentation.
The Chairperson stated that the Committee had received a presentation on the matters previously and Members had taken that information to consult with their principals. The Legal Advisor would be re-capping the issues for debate.
Presentation by the Senior Legal Advisor
Adv Charmaine van der Merwe explained that the Committee had to restrict its deliberations to the six Reservations raised by the President.
The following Reservations were listed by the President:
1.Tagging: The Bills should have been classified as section 76 Bills, i.e. to be considered by the National Council of Provinces (NCOP) because they might relate to “trade” and “cultural matters”.
2. Retrospective and arbitrary deprivations of property in clauses 5, 7 and 9 which inserted the following sections in the Copyright Bill: sections 6A(7), 7A(7) and 8A(5).
3. Lack of public participation related to the “fair use’ concept contained in the Bill.
4. Impermissible delegation of legislative power to the Minister in clauses 5, 7 and 9 of the Copyright Bill.
5. The copyright exceptions as some clauses may: Constitute arbitrary deprivation of property; Affect the right to freedom of trade, occupation and profession.
6. Do the Bills comply with International Treaty Implications?
Adv van der Merwe dealt specifically with the reservation on tagging, stating that both of the Bills dealt with Intellectual Property which was a national responsibility and not a provincial responsibility and therefore section 75 Bills. The Bills did not address Trade or Cultural Matters and so they did not relate to the NCOP.
Adv van der Merwe agreed that the Bills had a knock-on effect on trade but Bills were not classified according to the knock-on effect. She stated that the Bills were correctly tagged as Section 75 but, if the Committee was unhappy with the advice, it could change the Bills to section 76 Bills.
Reservations 2 and 4 related to retrospective application and the OCLS was uncomfortable with clauses 6A, 7A and 8A being retrospective. The injustices of the past could be addressed through oversight and the Committee could ask the Department to come up with a solution.
She believed that reservations about public participation were unjustified. The Bill had introduced Fair Use but it was changed to a hybrid system of Fair Use and Fair Dealing. There had been some concerns about the drafting of the Bill but the later Amendments to the Bill had simply re-arranged the initial Amendments by creating a new section. OCLS was of the opinion that the details had not changed as only the words “such as” had been added.
Intellectual Property (IP) had to have copyright exceptions as, without exceptions, the rights to education, dignity, equality, trade, and freedom of expression were limited. The exceptions were not arbitrary, but were subject to a general four-factor test.
Was the bar set too high so that it deterred people from entering the profession? Adv van der Merwe pointed out that there was a wide range of people involved in the profession. Currently the balance was in favour of the publishing companies and the Bill was shifting the profession to make it easier for writers, artists, etc. to enter and survive in the profession.
Reservations about the international treaties were unfounded according to Adv van der Merwe. None of the relevant treaties have been ratified, or domesticated, as required by section 231. However, the Committee could decide to reconsider the remitted Bills in respect of compliance with the treaties and make any amendments it deemed necessary.
The Chairperson called for questions of clarity as Members would have to go back and discuss with their parties and then would come back the following week and make the final decisions. The Committee could also determine if there were other issues that had to considered.
Mr Z Burns-Ncamashe (ANC) asked Adv van der Merwe if the Committee agreed that the content of the Bill impinged on issues that included cultural matters, customary law and indigenous law, would that not relate to schedule 4 of the Constitution? If that were the case, it would be a concurrent matter and that would require the Bill to be tagged as section 76.
He stated that there were tests that formed part of the SA case law, including the doctrine of pith and substance, as well as the substantial measure test, and they were critical in informing the Committee of the validity of the tagging. To what extent had Adv van Merwe made use of those important instruments in giving the Committee advice?
Mr Burns-Ncamashe asked about Fair Use. Were some of the factors critical? Had the use and nature and effect on the market been taken into account? What was the issue around the international treaties? If SA was a signatory of certain treaties which related to section 31 of the Constitution, even if the country had not ratified those treaties, would there be no challenges if SA did not uphold that treaty? He understood that those treaties had to be ratified by Parliament to take effect in SA, but SA had signed the treaty and the country might find that, should the Bills be enacted, the treaties would become invalid, putting the country in a predicament.
The referral of Bills to Traditional Leaders in terms of section 18 of the Constitution was critical. The House of Traditional Leaders had an obligation to elicit views from the provincial and local Houses of Traditional Leaders. If it was a matter that would impinge on cultural matters, customary or indigenous law, Parliament had no choice in terms of section 4: Parliament had to refer it to the House of Traditional Leaders and then the Bill could not be considered a section 75 Bill.
He asked if Adv van der Merwe could be helpful and advise him on those matters.
Mr S Mbuyane (ANC) asked for clarity on the retrospectivity concept. If the Committee agreed that retrospectivity was not possible, what could be done for those whom the legislation had tried to protect, i.e. those who had been exploited in the past? He agreed that retrospectivity could be removed, but only if there was some way of giving relief to poor artists who had been exploited and were dying in poverty despite the fact that the publishing companies had made a lot of money from the work of those artists.
He asked Adv van der Merwe about the treaties. Which one came first: a signed treaty or the Constitution of the land?
Ms R Moatshe (ANC) asked about the delegation of powers to the Executive, which the ANC believed was a norm in Parliament. Adv van der Merwe had said that because the delegations to the Minister were linked to the clause on retrospectivity, those powers automatically fell away if the retrospectivity clause fell away. How did the retrospectivity matter relate to the powers of the Minister?
Adv van der Merwe stated that when the OCLS looked at tagging, it looked at the Tongoane case which had changed the test for the classification of legislation from pith and substance to substantial measure. In the past the Bill was looked at as a whole and the subject matter of the Bill was considered and that alone was tested against the requirements for a section 75 Bill versus a section 76 Bill. The Tongoane case determined that each and every provision in the legislation had to be considered in determining whether to classify a Bill as section 75 or 76. The legal advisors had looked at every single clause of the Bills and determined that none of the provisions fell under section 4. The OCLS advised Joint Tagging Mechanism (JTM) staff as to its opinion of the tagging of a Bill but the staff at JTM independently considered whether it related to section 4 of the Constitution or not. The two Bills before the Committee had been checked against Schedule 4 by both OCLS and the JTM staff.
Adv van der Merwe added that where Parliament erred on the side of caution, and determined a Bill to be a section 76 Bill, such processes could not be found unconstitutional.
Adv van der Merwe assured members that each clause of the Bills dealt with intellectual property; they did not deal with trade, cultural matters, customary or indigenous law. The effect of the clauses might have an effect on trade, cultural matters, etc, but she reminded Members that Bills were not classified for knock-on effects. Classification was on the exact wording of the Bill.
Regarding Fair Use and international treaties, Adv van der Merwe stated that one had to be cautious when dealing with remitted Bills – one could only consider matters that the President had queried. The President believed that there had not been sufficient public participation. She understood that some of the Members had not been part of the Committee in the Fifth Parliament but she assured them that the Bills had been sent out for public comment on four occasions. Furthermore, in respect of Fair Use and Fair Dealing, the Committee of the Fifth Parliament had looked at the effect of the Bills on the market and had determined that the hybrid model would be the best model to provide balance between commercial players and the creative artists. The current Committee could only consider whether more public participation was necessary. It could not consider the question of Fair Use versus Fair Dealing.
As to the status of SA as a signatory to a treaty, what that meant was that the country’s representatives had said that SA was in agreement with the approach to the matter and wanted to be part of the treaty. The Minister would come back to SA and attempt to convince Parliament to ratify the treaty. If a treaty was not ratified, it was not binding on the country. It just meant that the relevant representatives had expressed interest. None of the relevant treaties had been ratified. Even if a treaty were ratified, the treaties came second to the Constitution, as in the case of Glenister v President of the Republic of South Africa and Others. A treaty could form part of domestic law and a treaty could inform the interpretation of the Constitution. For example, the Constitutional Court would look at treaties that SA had ratified in relation to a case, but the clauses in the treaty could not over-ride the Constitution which remained supreme law in the country.
Regarding the retrospectivity, Adv van der Merwe assured the Committee that there had been a rationale behind the inclusion of retrospectivity as it addressed injustices of the past and there was definitely a need to consider those who had been disadvantaged. However, several questions arose in the light of retrospectivity. Who was disadvantaged and who was not? What if an innocent third party had obtained the rights to a work and was impacted by the Bill? Her advice was to request the Minister to conduct research and an assessment of the situation and to determine how many people were affected by the situation, etc. The Minister had then to consider the options and what could be done. She believed that there needed to be a full impact study so that one knew who would be affected and what the implications of retrospectivity were.
The Minister should bring his recommendations to the Committee and the Committee could determine the way forward. Any law that was retrospective had to be certain and therefore had to be legislated but, until that assessment had been done, there was insufficient certainty to legislate the retrospectivity clause.
It was a norm to delegate powers to the Executive but Parliament could not delegate its Plenary Powers. A Minister could not pass his own Act. That was a constitutional right given only to Parliament. However, Parliament could ask a Minister to provide information or input into a Bill and most Acts had regulation clauses for which the Minister was responsible. The reason for the delegations to the Minister in the Bill had been because of the concerns about retrospectivity. So if the retrospectivity clauses fell away, the Minister’s delegations had to fall away. The OCLS recommended that the Committee delete the whole of subsection 7.
The Chairperson reminded Members that the meeting was an opportunity for Members to clarify any questions, concerns or uncertainty. The Committee could only address the constitutional matters and nothing substantive. When the Committee reconvened, it would take a decision on each individual point raised by the President as a reservation. Nothing new could be added to the Bill.
Ms J Hermans (ANC) asked what would be formally considered at the next meeting. She noted that the agenda for the next meeting, indicated that there would be a formal consideration of each of the President’s reservations, but the parties had not yet placed their views on the table. She thought that the Committee Secretary could advise.
Mr Burns-Ncamashe emphasised the importance of public participation which was important in terms of section 59 of the National Assembly and section 72 of the NCOP. The reference was the judgement by the Constitutional Court in the matter of the Land Access Movement of SA and Others against the Chairperson of the NCOP. Judge Madlanga had handed down the judgement, in which he said in clause 58: It is beneath the dignity of those entitled to be allowed to participate in the legislative process to be denied this constitutional right. He had predicated it on a judgement handed down by Justice Sachs “It is constitutive of their dignity as citizens today that they not only have a chance to speak, but also enjoy the assurance they will be listened to. This would be of special relevance for those who may feel politically disadvantaged at present because they lack higher education, access to resources and strong political connections. Public involvement accordingly strengthens rather than undermines formal democracy, by responding to and negating some of its functional deficits.”
Mr Burns-Ncamashe stated that those judgements went to the heart of the President’s reservations. He asked Adv van der Merwe to express herself on the matter of the dignity of people who should be given the opportunity to participate and know that their inputs would be listened to. Those were the concerns that the President had raised in respect of public participation. He asked that his concern be addressed while the Legal Advisor was available.
The Chairperson reminded Members that the Committee was not starting from scratch in respect of considering the Bills, but only responding to the reservations.
Adv van der Merwe responded to Mr Burns-Ncamashe, informing him that both Bills had been referred to the National House of Traditional Leaders in 2017, so that consultation had taken place. The OCLS was of the opinion that there had been sufficient public participation. There had been four separate rounds of public participation on the Copyright Bill. There were a number of matters that had been amended and the public had been consulted on each occasion. Section 59 of the Constitution dealt with public participation and the OCLS was of the opinion that the public participation already engaged in would pass constitutional muster. However, she informed the Committee that it had the discretion to call for further public participation but that participation had to be limited to the reservations of the President. That should not stop the Committee from calling for public participation; it was a matter of correct wording.
Input by the Committee Secretary
The Committee Secretary informed Members that, as a way forward, the secretariat had prepared a document which included the reservations of the President and the OCLS response to each of those concerns. He suggested that the Committee could express a view; an in-principle decision that would be finalised in the meeting the following week. The Committee would express that view in terms of each of the six items, for example the first would be the matter of public participation. The secretariat would then be able to draft the report on the matter for the National Assembly prior to the next meeting and it could be amended, if necessary, and approved at the meeting. In the meantime the parties could discuss the responses with their caucuses.
Mrs Hermans agreed that the Committee should take initial input from parties. She stated that the ANC was of the view that the Bill was correctly tagged and that view was supported by the opinion of the OCLS but the ANC wanted the Bill to be referred to the Joint Tagging Mechanism (JMT) to provide its opinion on the tagging of the Bill.
Mr D Macpherson (DA) asked if it were not better, after the briefing that morning and in the light of the decisions required, for the document to be considered by each party, in consultation with its principals, and then each party could make recommendations in writing to be considered by the Committee. That would be far better than dealing with the matters on the fly.
The Secretary stated that the proposal was that no decisions would be taken during that meeting. The process was proposed only for the secretariat to obtain in-principle positions so that it could begin to craft the reports that would accompany the Bills.
The Chairperson stated that parties would undertake deliberations before making even an in-principle decision but that there was no intention to finalise matters in that meeting.
Mr Macpherson did not believe that the Committee should be taking in-principle positions based on a feeling or just to get an idea of what everyone thought. He stated that the DA would prefer to consult with legal advisors and supply the responses in writing as the matters were far deeper and more complex than the Members realised and they might have legal ramifications going forward. He suggested that parties provide written opinions prior to the meeting the following week. It was fruitless to have a merry-go-round discussion on the issues.
The Chairperson suggested that the secretariat’s document, together with the advocate’s presentation, be made available to Members. It would be a good idea for Members to take the points away and the Committee could pick up with the process as initiated by Ms Herman on its return the following week and obtain consensus.
The Secretary stated that it was for the Committee to decide on the process; he had simply provided a suggestion. If the Committee agreed with Mr Macpherson, that could be done and he would forward the documents.
Ms Y Yako (EFF) agreed with Mr Macpherson that Members could not say on a whim what they felt. The Bills were very complicated and there were many worrying issues and Members could not simply comment on the proposals. She suggested that Members be given a specific date for submission of their positions in writing. The secretariat could collate that and the Chairperson could provide direction on the way forward.
Mr M Cuthbert (DA) agreed with the previous input by Mr Macpherson and Ms Yako and suggested that positions of all parties be circulated to all Members before the next meeting. In the next meeting, the Committee could go down each reservation. It would be a waste of time to start the process when Members were not prepared.
Mr F Mulder (FF+) supported the suggestions of the previous three speakers.
Ms Hermans stated that Members had been looking at the remitted Bills since 2019 and that parties were not providing opinions on a whim or on the fly, nor were they uninformed. Parties had had time to discuss with their caucuses and were not without considering the reservations. Furthermore, the presentation had simply been a repetition of a previous presentation with no new information, but she was happy to populate the document with the parties’ positions and consider the matter the following week.
The Chairperson agreed that the process could be facilitated as requested. He requested the Secretary to propose a process going forward. The reminder by the advocate had been clear. It had reminded Members of issues and had allowed for Members to ask questions. Members could fill in the third column of the secretariat’s document.
The Secretary proposed that the parties provide the completed documents by midday on the following Monday. He reminded parties that they could respond only to the President’s reservations. He would then collate the views and circulate the document to all parties that afternoon for consideration before the meeting.
The Chairperson determined that the process of submitting responses by Monday 10 May 2021 was acceptable and the Secretary could then provide the details to all parties so that the matter could be considered in the next meeting. He noted that the silence of Members indicated consent. The presentation by Adv van der Merwe would be circulated; it had simply been a reminder of the reservations of the President on the constitutionality of the Bills.
The Chairperson noted that the Committee had completed its work for the day and parties would submit their positions as Members had, in fact, previously had time to engage with their parties. The following week the Committee would receive a briefing by the sugar industry and would also engage on the Remitted Bills.
The meeting was adjourned.
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