DTIC Budget Report discussion; Copyright & Performers’ Protection Amendment Bills remitted

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Trade, Industry and Competition

12 May 2021
Chairperson: Mr D Nkosi (ANC)
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Meeting Summary

Tabled Committee Reports
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 to discuss the President’s reservations in respect of the Copyright and the Performers’ Protection Amendment Bills. A first draft report on Budget Vote 39: Trade, Industry and Competition was discussed.

The President’s reservation on the remitted Bills, the Copyright and the  Performers’ Protection Amendment Bills, included whether the Bills should have been fully considered by the National Council of Provinces, that is as section 76 Bills, whether the retrospective and arbitrary deprivations of property were constitutional and whether powers should be delegated to the Minister in that regard. There were also reservations in terms of sufficiency of public comment on fair use, the copyright exceptions and whether the Bills complied with relevant international treaties.

Four parties were present in the meeting: the African National Congress, the Democratic Alliance, the Economic Freedom Fighters and the African Christian Democratic Party. All four parties agreed with all of the reservations expressed by the President. The Committee would adopt a report making such a recommendation to the National Assembly at its next meeting.

Concerning the draft report on Budget Vote 39, it was agreed to finalise the recommendations at the following meeting so that the report could be adopted prior to the presentation of Budget Vote 39.

Meeting report

Opening remarks
The Chairperson welcomed Members and everyone on the platform.

The Secretary confirmed the attendance of Members. The FF+ Member, Mr Mulder, sent apologies. His party was not represented in the meeting, leaving the ANC, DA, EFF and ACDP in attendance.

The Chairperson noted that the Agenda indicated that the Committee would be considering the Bills remitted by the President and the report on the Budget Vote for the dtic.

Remitted Bills: Copyright and the Performers’ Protection Amendment Bills
The Chairperson stated that on 5 May 2021, the Committee had resolved that each of the parties would consider and provide input on the President’s reservations regarding the Bills. The purpose of the meeting was then to determine how to address the President’s reservation. He added that the Committee would then consider the first draft of the Report on the Budget Vote which Members had received earlier in the week and had been asked to submit conclusions and recommendations.

The Secretary stated that, at the previous meeting, it had been agreed that parties would provide input on the remitted Bills. Input was received from the ANC and the DA only.

The Secretary flighted a document containing the President’s Reservations, CLSO recommendations and party input.

President’s Reservations on the Copyright and the Performers’ Protection Amendment Bills
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?

Reservation 1: Tagging
Ms J Hermans (ANC) stated that The ANC agreed with the President that the Bill be re-tagged as a section 76 Bill. The ANC erred on the side of caution by referring the matter to the Joint Tagging Mechanism (JTM) to validate the view of the ANC.
Mr D Macpherson (DA) stated that the DA was in agreement that the Bill should be re-classified.

Ms Y Yako (EFF) agreed that the Bill should be submitted to JMT to consider re-tagging.

Mr W Thring (ACDP) was in agreement with the previous speakers.

Reservation 2: Retrospective and arbitrary deprivations of property in clauses 5, 7 and 9
Mr S Mbuyane (ANC) stated that the ANC agreed with President that the sub-clauses should be removed from the Bill. However, the ANC requested that new legislation be introduced in the form of a Bill that would assist the previously disadvantaged artists. The Minister should consult with National Treasury in order to bring a fresh Bill to the Committee to introduce a levy that would address or compensate for the exploitation of the past.

Ms Hermans said that the Portfolio Committee might request the Executive to identify possible mechanisms or options to compensate artists or performers who had been exploited and disadvantaged through new legislation within a six-to-12-month period.

Mr Macpherson stated that the DA agreed with the President’s view on retrospection. He noted that the document that he had submitted to the secretariat seemed to have a formatting error.

He suggested, seeking clarity from the Chairperson, that the Committee should confine itself to the concerns of the President and be cautious about intertwining new legislation in the process of dealing with the President’s reservations. The ANC could bring a separate private Member’s Bill or request the Minister to introduce legislation at a later stage, but the intention of the current process was to address the President’s reservations. Anything outside of that would be problematic.

The Secretary explained that the report to the National Assembly would be restricted to the response to the President’s reservations and the other points made by the ANC would be recorded in the minutes of the meeting.

The Chairperson agreed that other issues would be noted. He remarked on the alignment between the ANC and DA.

Mr Thring stated that the ACDP was in agreement with the removal of the retrospective and arbitrary deprivations of property clauses.

Ms Yako was also in agreement, but said that there should be a levy to compensate those who had been disadvantaged in the past, although that aspect should not be rushed.

The Chairperson noted the agreement in the responses by parties to the reservation.

Ms Hermans agreed that the two additional points made by the ANC be excluded from report but included in the minutes.

Reservation 3: Impermissible delegation of legislative power to the Minister in clauses 5, 7 and 9 of the Copyright Bill
Ms R Moatshe (ANC) stated that the ANC was of the view that the delegation of powers to the Executive was a norm in SA laws; however, the clause on the delegation of powers to the Executive automatically fell away with the deletion of the Retrospectivity clauses as they were linked.

Mr Macpherson agreed with the President’s reservations.

Ms Yako agreed.

Mr Thring agreed.

Reservation 4: Lack of public participation related to the “fair use’ concept contained in the Bill
Mr Z Burns-Ncamashe (ANC) stated that the ANC agreed with the concerns expressed by the President on fair use; therefore, the fair use clause (section 12A) should be reopened for public comment. It was a measure to guard against any forms of infringement and to provide a reasonable balance between artists and publishers. The ANC agreed to open up the clause for public comment as the Constitution enjoined Parliament to involve the public extensively in the law-making process and the ANC wanted to err on the side of caution with regards to public participation.

Mr Macpherson stated that public participation should be re-opened as there had been a lack of public participation in that particular clause.

Ms Yako agreed

Mr Thring agreed.

Reservation 5: Concerns about the Copyright Exceptions
Ms N Motaung (ANC) stated that the ANC was of the view that the exceptions should be retained. The copyright exceptions did not constitute arbitrary deprivation of property, did not limit the right to choose a trade, occupation or profession and were not in breach of the three-step test. However, the ANC was of the view that the Committee should err on the side of caution with regard to the three-step test and open those sections for public comment as part of the fair use clauses.

Clauses to be affected were: Clause 13 [inserting sections 12A, 12B(1)(a)(i), 12B(1)(c), 12B(1)(e)(i), 12B(1)(f), 12C and 12D], clause 19 [inserting section 19B] and clause 20 [inserting sections 19C(3), 19C(4), 19C(5)(b) and 19C(9)]

Mr Macpherson supported the reservation of the President. He reminded the Committee that the purpose was to agree or disagree.

Ms Yako agreed with the President’s reservations.

Mr Thring supported the proposal as the ACDP would prefer to err on the side of caution.

Reservation 6: Compliance with International Treaties
Ms Hermans stated that the view of the ANC was that there had been a serious consideration of alignment between international treaties and the contents of the Bills, in the process of the amendments of the Bills.
In appreciation of the President's reservation and a conscious preference to err on the side of caution, the ANC held a view that a reasonable balance and alignment with the provisions of section 231 and 233 of the Constitution of the Republic had to be thoroughly interrogated. That view should also form part of the areas to be dealt with through oral and written submissions arising from further engagement and participation of the public. She noted that such interrogation would happen if the Bill were re-tagged as s76.

Mr Macpherson stated that DA did not believe that the Bill complied with international treaties.

Ms Yako had no comment on the matter.

Mr Thring stated that it was a relevant concern that would be thrashed out during further consultation.

The Chairperson stated that the Committee required a way forward. There was consensus by parties. He asked the secretariat to consider a programme to take the process forward. He asked the Secretary to indicate what that process would look like.

The Secretary suggested that the secretariat be instructed to prepare a report which would be forwarded to parties that same day, so that parties could prepare to formally adopt the report at the next meeting which was to be held that Friday.

The Chairperson agreed with the proposal. A consolidated report would be addressed at the next meeting for a formal decision.

First Draft of the DTIC Budget Vote Report
The Committee Secretary informed the Chairperson that the first draft of the Revised Budget Report had been sent to the Members the previous day and he had received input from the ANC only.

He suggested that Members could be taken through the entire report, and that specific attention be paid to the conclusions.

The Committee Content Advisor flighted the report. She indicated that the secretariat would write the introduction by the following meeting. She then went very quickly through the content of the report, noting that the initial sections were the same as in previous reports.

The Report focused on the Joint KPIs of the newly Combined Programmes. Details of the budget were recorded, including the allocations per Programme and an analysis of both the overall budget and the allocations per Programme. The report went on to record the deliberations of the budget debate in the Committee.

The Secretary took the Committee through the concluding remarks which supported various aspects of the dtic’s plan and encouraged that additional Master Plans be completed speedily. The Joint Programmes were specifically welcomed. The conclusions welcomed the efforts of dtic to present a full programme in the light of the economic constraints; the contribution of the dtic to building a capable state; the equity and fairness in adjudication of grants; the plan to contribute to the District Support Plan; the concern about the skewed trade relations and efforts being made to improve the balance of trade; efforts to improve the ease of doing business, the implementation of the African Continental Free Trade Area; the contribution of the dtic to the economic recovery; the Master Plans that the dtic was driving; the dtic’s efforts to drive worker-ownership schemes.

Mr Thring expressed his appreciation to the secretariat for a very detailed report. He wished to add one word to point 2 in the Conclusions on monitoring systems for localisation: He requested that the word “beneficiation” be added to that point. The dtic had referred to both localisation and beneficiation in the Annual Performance Plan.

The Committee accepted the addition.

The Chairperson noted that there were concluding remarks in the document but no recommendations.

The Secretary stated that recommendations would be included and the document distributed to Members for discussion by their respective caucuses. He requested that additions from Members be submitted to the secretariat by the end of business on Thursday 13 May 2021. He added that Friday’s meeting would commence at 8:00.

The Chairperson asked whether Members were in agreement with, or objected to, the Secretary’s proposal.

The Committee concurred with the proposals by the Secretary.

Concluding remarks
The Chairperson stated that the Committee would reconvene at 08:00 on Friday, 14 May 2021.

The meeting was adjourned.


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