Copyright & Performers’ Protection Amendment remitted Bills: further public hearings day 2

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Trade, Industry and Competition

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

19 May 2021 ATC210519: Report of the Portfolio Committee on Trade and Industry on the President’s reservations on the Performers’ Protection Amendment Bill, dated 14May 2021
19 May 2021 ATC210519: Report of the Portfolio Committee on Trade and Industry on the President’s reservations regarding the Copyright Amendment Bill, dated 14May 2021


The Portfolio Committee on Trade and Industry continued, for a second and final day, the virtual public hearings on the Bills remitted by the President: the Copyright Amendment Bill and the Performers Protection Amendment Bill. The Portfolio Committee on Sports, Arts and Culture participated again in the hearings.

The hearings followed a similar pattern of submissions taking a strong position to either pass the Bills as they stood or for the Bills to be re-worked. The debate regarding the viability and the appropriateness of the fair use principle continued with several submitters stating that it would open up the opportunities for education and research while opposing views were that it worked in the United States because that was a litigious country. Several submissions recommended that the language used in the international treaties be used in the Bill to avoid disagreements over wording. One presenter pointed out that the Bill did not contain unfettered fair use, but a hybrid version as use would be restricted to similar material identified in the ‘such as’ clauses.  That future-proofed the Copyright Amendment Bill for newer technologies, research at the cutting edge and other developments.

Submissions used the opportunity to display work that had been reproduced without acknowledgement of the creator and had resulted in enormous loss of earnings. One submission referred to a court case in South Africa dealing with the largest copyright infringement in history, the copying of a photograph of Nelson Mandela, that had been in the courts for seven years and was not yet finalised. Few artists could afford such litigation.

Members received fairly detailed explanations of how practices, processes and procedures differed in different creative industries and how “one size does not fit all”. Processes of how work was used without permission but could be traced if used in digital form were explained, and processes of determining copyright for audio-visual work were explained. Collecting agencies explained their processes and the procedures for brailling a book for the visually impaired were explained to the Committee.

The Marrakesh Treaty, which has a humanitarian and social development dimension with its main goal to create a set of mandatory limitations and exceptions for the benefit of the blind, visually impaired, and otherwise print disabled, was raised by several presenters, all of whom lamented the fact that South Africa had not ratified that treaty despite its human rights record. All called for the immediate ratification of the Treaty by South Africa. South Africa’s failure to ratify the Rome Convention which dealt with performers’ rights was raised. When a song was performed in a Rome Convention country, a performer in a non-Rome Convention country (such as South Africa) did not get paid.
A single submission addressed the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement of the World Trade Organisation, indicating that the fair use aspect of the Bill was vital for the medical field as currently doctors in South Africa could not repair, adapt or amend any of the software used on expensive and life-saving equipment in South African hospitals, including the ventilators that were so critical for people suffering from Covid-19. The submission urged the urgent and immediate adoption of the Copyright Amendment Bill.

Music industry organisations dominated the middle of the day, with some organisations holding that fair use was tantamount to “free use” as it would cause uncertainty and result in expensive litigation. The general concern was for appropriate remuneration for musicians and songwriters and difficulties, such as the separating the content of songs from the music, were raised. The private copy levy, that had been taken out of the Bill earlier on, was seen as one solution to the problems pf musicians. The main concern was that internal organisations would exploit musicians by including work on enormous internationally-held streaming databases. One submission highlighted the difference in the number of time that a song had to be played by a streaming agency to earn R1, varying from ten time to over 100 times. That concern was similar to the challenges experienced by photographers when newspapers handed images to international archive houses.

Submissions dealing specifically with the challenges experienced by blind and visually impaired people called for section 19D in the Bill to be implemented as it currently stood. However, one submission called for the section to be immediately written into the 1978 Copyright Act while the other submission opposed such a move and urged the immediate passing of the current Copyright Amendment Bill.

As on Day 1, it was an extremely long and hard day with 17 organisations making submissions. Many famous South Africa artists were given the opportunity to make their voices heard before the conclusion of the public hearing.


Meeting report

Opening remarks
The Chairperson noted the attendance of the Portfolio Committee on Trade and Industry as well as the Portfolio Committee on Sports, Arts and Culture.

Mr M Cuthbert (DA) requested that South African Special Risk Insurance Association (SASRIA) be requested to present to the Committee on addressing compensation to businesses that had been suffered damage.

Oral Submission by SAFEA: The Stakeholders
Mr Shaun Harris presented on behalf of the SA  Freelancers Association and also known as The Stakeholders.

He pointed out that South Africa had no precedent of fair use whereas in the USA, four factors were used to analyse fair use: purpose, nature, amount and market. Using those factors to analyse fair use left room for too many variables that supported the users and denied the authors ownership of their work.

Section 12A(1)(a)(iii), section 12B(1)(a)(i) and section 12D constituted arbitrary deprivation of property; sections 12A and 12D violated the right to freedom of trade, occupation and profession, while section 12B(1) contravened section 20 of the Copyright Act in which every author had a right to claim authorship. Sections 12A and 12D violated the right to freedom of trade, occupation and profession and section 12B(1) contravened section 20 of the Copyright Act in which every author has a right to claim authorship.

(See Presentation)

Ms V Malomane (ANC) noted that the Members wanted the presenters to state exactly what changes they wanted to see and that was exactly what the first submission of the day had done.  She asked how publishers obtained works that they published without permission.

Mr B Madlingozi (EFF) referred to a photograph displayed and asked if the photographer had licenced the product or whether the company owned the photograph. If the company owned the photograph, it was free to use it.

Ms Y Yako (EFF) asked whether “fair use” would benefit only international artists and not SA artists. How did Mr Harris propose that photography used on Instagram, etc. be managed?

Mr Z Burns-Ncamashe (ANC) noted the point about fair use in clause 12A in the Bill as against section 12 in the Act where fair dealing was contemplated. The submission alleged that the shift from fair dealing to fair use which was an infringement in respect of section 22 and 25 of the Constitution. He asked Mr Harris how he would persuade the Committee that the use of the doctrine was, indeed, an infringement.

Mr Harris replied that the photographer or videographer of a picture should be viewed as the author as per section 20 of the Copyright Act. The Copyright Amendment Bill (CAB) stated that future sales of artists’ work should result in authors’ being rewarded because a newspaper syndicated photographs and made a great deal of money, nationally and internationally. If the image was handed over to an international archive house, the author was deprived of acknowledgement and future earnings. The request was that the author should always be linked to that work and remunerated for future  use thereof.

In the SA regime, fair use would not be of benefit of all creators, unlike in the USA where the judicial mandate and the history of fair use made it easy. It would be hard to use in local environment. Each platform had rules and regulations for users and authors and it states that no one can replicate an author’s work without permission. Every single platform, including YouTube, etc. Users, however, thought that because a work is in the public domain, it was freely available but that was not the case. Where work was requested, it could be given freely or a payment could be attached. Most authors gave work free to the user as long as the author was acknowledged.

There were a number of tracking agencies that would track the unauthorised use anywhere around the world. Tracking agents took a small percentage of the winning amount and there were a number of such cases pending, both locally and internationally. However, use in a physical publication could not be tracked.

He added that the author could authorise use of work or object under section 20 of the Copyright Act and give the user permission to use the work. The author and new user won going forward as all works were traceable. Digital identification systems were available and would provide potential users with the author’s details.

Mr Burns-Ncamashe asked Mr Harris to share any case law to substantiate his views.

Mr Harris stated that there was little casework on unauthorised use as the authors could not afford the legal fees. Because case law was limited in SA, it was difficult to take a case to court. In USA there had been differing outcomes on cases taken to court. He referred to a picture of Nelson Mandela that he had taken. It was the largest copyright infringement in history and he had been engaged in a case for seven years to pursue the matter. It was long, costly and difficult to defend copyright. He hoped that the Tribunal would assist. The creatives in the industry implored Members to look at fair use in clause 12A as it would be detrimental to them and their livelihoods. 12B and C could be re- worked for the betterment of education.

Oral Submission by the International Film Producers’ Association (FIAPF) Film Producers Worldwide
Mr Bertrand Moullier, Senior Advisor of FIAPF, stated that the Association’s thoughts were aligned with those of the SA Independent Producers Organisation. He stated that the policy intention in the CAB was excellent.

FIAPF believed that four preconditions were necessary for local film/TV production sectors to thrive: 1) legal certainty, obtained through global common standards such as those in the Berne Convention and WIPO Copyright Treaties 2) commercial/contractual freedom whereby beneficiaries of exclusive rights may freely choose the form and terms of assignment and/or licensing contract 3) the unification of rights in a project in the legal person of the producer so as to enable her/him to raise production funding and negotiate with distributors and platforms for the exploitation of the finished film and 4) Meaningful enforcement to protect against unauthorized uses and IP theft.

(See Presentation)

Mr W Thring (ACDP) noted the four pre-conditions for the survival of the television/film producers’ industry, one being freedom to choose in terms of the licence contract. Creators had cried foul as far as the contractual agreements were concerned as they believed they received the short end of the stick. Performers were paid per day and that production was later flighted by a number of broadcasters and the actor did not get any reward for additional flighting. It seemed that contractual agreements were skewed in favour of the film industry. How could equitable sharing come into play.

Mr Madlingozi said that the film industry primarily shaped how people were and films were designed to programme people. The pictures were part of propaganda. Should the industry not focus on hot topics in SA? Today SA youth aspired to emulate Americans. The film industry had created how the world was currently but it should be shaping SA youth for their betterment.

Mr Burns-Ncamashe asked Mr Holland (Mr Moullier) if he were to write the Bill, would he do anything differently. The right of ownership was captured in clauses 6A and 7A. Did those clauses have any specific deficiencies that he could identify and what would he propose writing differently? SA was not currently a signatory of the Beijing Treaty but what would the presenter identify specifically as a deficiency relating to clause 8 of the CAB. The Marrakesh Treaty dealt specifically with access, especially for the visually impaired. What had been deficiently expressed in clause 19D of the CAB? What were his clear proposals to rewrite clause 19D to comply with Marrakesh Treaty? The same applied to all other treaties. The presenter should have proposed the correct wording.

Ms B Dludane (ANC) had listened to the discussion on WIPO treaties and had heard that more work was needed. Could the submitter clarify specifically what he thought should be amended? The Committee was aware that some treaties had been signed but not ratified. The Committee had been workshopped and would now follow the processes that needed to be followed. Who in the film industry was affected by the points raised in the submission?

The Chairperson called for brevity to adhere to the timeframes on the programme.

Mr Moullier explained that he was not Mr Holland. He informed Mr Thring that it was not for him to say whether performers in SA were unhappy. His remarks related to the solutions to problems and how that related to the international treaties. He was happy to cite the clauses that concerned him because Mr Burns-Ncamashe had asked him to repeat them. His concern was that clauses 6A, 8D, 22(3) and 39(B) constituted over-regulation in respect of the contracts which would not allow any room for negotiation. That would be better left up to the contracting parties to negotiate a reasonable agreement that would meet their expectations and protect their interests. He opposed regulations that determined a specific mode of remuneration. One form of remuneration was a daily fee and the producer would pre-buy some commercial uses by paying the performer before the film was even completed so that the producer could exploit the film. That system of residuals constituted “a bird in the hand which was better than two in the bush” for performers. There was a spectrum of solutions and legislation should only orienteer the agreement of remuneration.

Mr Moullier told Mr Madlingozi that he could not respond to his comments as it was Mr Madlingozi’s view that film was propaganda and not his. His organisation saw film as freedom of expression.

In response to Mr Burns-Ncamashe, he said that he had referred to the whole system of rights and the proposed system of transfer and remuneration. He would look at CAB sections 6A, 8A, 8A(6), which had caused enormous alarm, 39(C) which was a case over-regulation in which the Minister had enormous powers.

In the Performers’ Protection Amendment Bill (PPAB), he would look at sections 3A, 4(c), 8D(3), 8D(4). He suggested that the best methodology was for the Committee, together with professional advisors, to engage in a dialogue with parties in the industry and come to an agreement that would allow parties to sit down at a table before work commenced and come to an agreement on contracts and remuneration.

Mr Moullier had noted the reference to the Beijing Treaty. FIAPF had been an active party in the negotiations as it has enormous importance for the status of performers. It recognised the existence of exclusive rights for individual performers. Article 12 had provisions to allow each country to determine how the transfer of those rights to the producer would be effected. It did not determine specific modes of transfer or modes of remuneration: that was the prerogative of each country.

He suggested that he had answered Ms Dlulane’s question with his previous response but he was happy to re-send the written submission which contained the details.

Mr S Mbuyane (ANC) asked about the four pre-conditions for local film and TV production. What was his point on consolidation of rights? Looking at the meaningful enforcement to protect the IP of a performer, what did Mr Moullier suggest in respect of fair use?

Mr Moullier could not speak on fair use. Regarding the consolidation of rights, what the Bills needed was a little more work on grasping the difference between film, television and publishing. Film had a very long gestation period and often only one of seven productions would go forward. There was a long gestation, a long production period and a short shelf life. An essential characteristic is that a film was an aggregation and a conglomeration of many different rights and so there had to be an expedient mechanism to gather the rights in the same space for a film to be licenced against finance, licence and distribution agreements detailing revenue that would be realised by the finished film in the market place. That was why the consolidation of rights was critically important. It was not just for distribution deals, but also one of the technologies used to put the budget together was by getting a distribution commitment prior to filming. That was a pre-sale and a bank loan could be obtained on the back of such a pre-sale or distribution deal. That often made the difference between realising a product and having to jettison it. He could spend a whole day discussing it.

He concluded that FIAFA believed that there was a need for a deep discussion between the Committee and role players to ensure a fine-grained understanding by Members of the Committee.

Oral Submission by the Recording Industry of South Africa (RiSA)
Mr Nhlanhla Paul Sibisi, CEO, said that RiSA represented approximately 20 000 independent record companies - more than 95% of which were independent self-releasing artists.

Before proposing changes to both the CAB and the PPAB, Mr Sibisi explained that RiSA’s principal concerns related to:
Section 12A introducing a sweeping open-ended US-style “fair use” exception.
Section 12B(1)(a) establishing a quotation exception which is unduly broad and not in compliance with the three-step test in the international treaties.
Section 12B(1)(i) and section 12B(2) setting out a “private copying” exception which extended to digital storage and failed to ensure fair remuneration for right holders and artists.
Section 12B(1)(c) which retained an unreasonably broad so-called “ephemeral exception” at the expense of right holders and artists; and
The new sections 12A and B of the Bill, insofar as they simply applied all the listed exceptions to all works.

(See Presentation)

Mr Madlingozi asked what measures RiSA had put in place to protect SA musicians from being exploited in the global space? Was he speaking on behalf of other organisation? If not, why not? If he was, had he engaged them before coming to Parliament? Did RiSA give all musicians a chance to receive an award at the SA Music Awards? If yes, why was there a cry that not all recording artists were given a space to shine? Did RiSA operate the same way as ASAMI (Association of SA Music Industries) had operated. If yes, why  and if no, what was the difference?

Mr Burns-Ncamashe asked about RiSA’s view that clause 12A dealing with fair use should be removed and 12B should be re-worked to fit the purpose. In 12A (a)(iv) fair use was allowed in respect of scholarship, teaching and education. What plausible argument did he have to invalidate that paragraph? Was there case law that he could refer to that would validate his position? It was the duty of Parliament to make laws, not interpret laws as that would be an overreach in terms of separation of powers. The courts had to interpret laws. Without the support of case law, it was difficult for Members to be convinced of a particular law. Presenters had to bring case law to support their views.

Ms Yako stated that the question was music-orientated. She was hoping to conscientise the Committee to zoom into the issues relating to fair use.

Mr Mbuyane noted the membership of 20 000 but asked if that was SA membership or global membership. What was the presenter’s principal concern about fair use in section 12A? He had referred to the subjectivity evident under fair use. What were the challenges regarding the payment of royalties timeously? He asked because artists had died as paupers? Did RiSA support the fair remuneration of artists? What was the ownership and shareholding of RiSA?

Mr Sibisi responded to Mr Madlingozi by explaining how a competition was organised. The SAMA competitions took up a bottom-up townhall approach, inviting members of RiSA and non-members to attend. The previous edition of the event was dissected at that meeting and it was determined if and where things had gone wrong. The meeting selected members for general committees which were made up of music companies and they decided on the rules for the selection of judges, etc. Then a production company was selected and because the award ceremony was to be broadcast, it was a balancing act between the demographics of the broadcaster and the needs of the sponsors. The selection of who performed was based on the pulling power of the performers. It was not simple and straightforward. People would always complain that they had not been afforded the opportunity to perform at the ceremony because the organisers were reliant on sponsors who looked to pulling power. It was becoming more difficult because sponsors were more difficult to come by and the music awards was one of only a few such ceremonies left, so pulling power was essential.

RiSA did not operate as ASAMI as that organisation had represented SA music industries. It had sought to represent everyone in the music industry and that was no longer the case which was why the name had been changed to RiSA in 2000. Most things were discussed at the AGM that gave a mandate to the board that ran the organisations, including things such as that day’s submission. He had a mandate to speak on behalf of members.

Mr Sibisi informed Mr Burns-Ncamashe that RiSA suggested that the reference to exceptions in section 12A, be dealt with in 12B or where other exceptions were dealt with. It was recommended that the language used in the international treaties be used in the Bill. There would then be very little opposition to the clauses.

It was difficult to refer to case law as SA was not a litigious country and there had been very few cases on copyright but one could look to the US to understand how difficult it was to judge copyright issues and to apply the provisions under fair use. For example, in music, a chorus cold be a substantial part of a song, so how much you copied was actually irrelevant. He did not believe fair use should be imported to SA as the only beneficiaries would be those that had the money to go to court and the royalty won might still be as low as the original amount offered.

The 20 000 members of RiSA were SA record label holders. The scenario had moved from Gallo, etc. to one-man artists who recorded at home. RiSA had a code of conduct requiring members to pay royalties regularly and no longer bi-annually. Big companies gave access to performers to obtain an almost real-time view of their revenue. Many organisations provided evidence of how an artist was acquiring revenue through digital technologies. It was exciting that small record label holders owned their own record labels.

Mr Sibisi concluded that the language of the treaties, especially WIPO (World Intellectual Property Organization), was that the exact same language as should be used in the Bill and there would be very little objection.

The Chairperson informed the meeting that he would be leaving the meeting at the lunch break and an Acting Chairperson would take over.

Oral Submission by SA Music Industry Council  (SAMIC)

Mr Oupa Salemane, Treasurer-General, introduced the Council to the meeting.

Mr Dumisani Moroling, Attorney, noted that there were several submissions by organisations that represented the music industry. As they would be referring to various details of the Bills, he would focus only on fair use which he considered a licence to be a bully. The only way to deal with the bully would be to go to court, which was not a realistic option for the majority of creators and performers. They would have to climb a mountain to assert their rights.

Ms Linah Ngcobo, Musician, presented a brief account of her own experiences in which people used her material without her permission. Musicians were angry and depressed because they were not protected against such exploitation. Pirating the works of a musician was the same as setting up a Kentucky Fried Chicken establishment without purchasing a franchise.

(See Presentation)

Mr Madlingozi asked which key organisations SAMIC was working with. What was the “key”? All the music organisations were housed in one building. Did they get together and plan their submissions or present individually thought-out submissions? He noted that fair use was a bone of contention but that to write it out of the Bill would be problematic.

Mr Burns-Ncamashe asked for a sense of the problem of fair use in very specific ways. If section 12A was done away with, how would that be reconciled with the fundamental right to freedom of expression in the Constitution? If he said that the right to freedom of expression would be infringed if section 12A was removed, what would be the response? What was his response to section 12A(c) which stated that the name of the author had to be mentioned? Was that not sufficient to protect the owner of copyright? If not, what would SAMIC advise?

Mr Thring noticed that SAMIC had said that fair use constituted a right to bully. The previous day a presenter had explained that copyright equalled remuneration plus access. How did SAMIC propose to find the sweet spot between protection of performers and access in the SA context? Had he suggested that fair use be replaced by fair dealing, despite it being more prescriptive and limiting than fair use?

Mr Salemane listed 23 organisations that formed the key organisations and listed the organisations.
The members were nationally based and located at different addresses but SAMIC had consulted the organisations.

Mr Moroling confirmed that fair dealing should be kept because it was more specific, especially the exceptions. The suggestion was to mirror what was in the treaties instead of imitating the USA. The USA was a litigious nation. There was not much jurisprudence in SA and the reality was that costs were prohibitive to a young musician working from home. Such a musician would not even have the R5 000 to open a case. He did not understand the point about the right to privacy. It did not seem to relate to fair use. There was a great deal of legislation in SA relating to privacy so he might have misunderstood the question.

In conclusion, he stated that SAMIC aligned itself with RiSA proposal regarding the way forward. Fair use would widen the rift between those who created and those who used content. People generally used content but paid as little as they could for that content.

Oral Submission  by Composers, Authors and Publishers Association (CAPASSO)
Mr Wiseman Ngubo made the submission, assisted by Jotam Matariro, on behalf of the collective management organisation. He explained that CAPASSO was a Digital Rights Licensing Agency based in Johannesburg which collected and distributed royalties to its members: music publishers and composers.

Section 12(B) was based on Tunis Model Law which unfairly prejudiced the rights of songwriters and had denied them legitimate earnings for years. CAPASSO currently collected over a quarter billion rands of revenue on behalf on songwriters and close to eighty percent of all CAPASSO collections were from digital services which were licensed to make reproductions of works. Clause 12(C) threatened that revenue stream for CAPASSO members. He reminded the Committee that the levy for private copying had been removed from the Bill because it would have made the Bill a Money Bill but suggested that perhaps the current situation could provide an opportunity to re-introduce that levy. He also elaborated on the challenges for song writers that would be exasperated under the fair use clause which left SA artists at the mercy of multinational companies with financial power to litigate.

(See Presentation)

Mr Thring said that there was a claim that there was zero remuneration from radio broadcasters as a result of section 12(B). Were there other broadcasters beside YouTube and radio who exploited the artists?

Mr Burns-Ncamashe asked for the key principles in the law-making process that were compromised in the Bill. Could he point out those areas that were compromised? Was there any area that suggested uncertainty or compromised the idea of equal treatment?  Could one find any area of the Bill that found proportionality wanting? Did any area in the Bill compromise the respect for fundamental human rights? If Mr Ngubo could zoom into those specific principles, the Members of the Committee would know if there was a problem in the Bills passing constitutional muster.

Mr Ngubo stated that there was a fundamental problem in the way that songwriters were paid. In theory, they were exclusive right artists but in practice, song writers were faced with the idea of having to ratify infringement. ICASA provided licences to broadcasters and the broadcasters promised to deliver local content without anyone asking if they had the right to exploit local content. It was up to the songwriters to chase the wanton infringement of their rights. It was also driven by the fact that songwriters did not deliver a particular piece of content because the song was embedded in the record and songwriters had to chase their right. Many works were covers of song writers’ songs and there was no protection for the songwriters. There had been protection under section 14 of the Copyright Act in the physical era but there was no protection in the digital era as section 14 did not apply to digital works.

The balancing act was achieved by bringing in, not just exceptions for libraries, etc, but also bringing in a private copy levy. Without that they were derogating the right to property that a songwriter had. The property could be reproduced wantonly without recognition or remuneration. The fair use principle thrived on uncertainty and that was why one had to go to court to get a ruling on each and every case.  The most vulnerable in society was burdened with legal costs to claim their rights. The ones who wished to use fair use should be the ones to go to court to claim fair use. To make it more difficult, the songwriter did not know how the song had been used when the broadcaster did not report. If the broadcaster reported, the songwriter could prove that his song had been used but without the report, the song writer could not prove use.

The CAPASSO submission ended with two short videos.

Oral Submission by SA Music Rights Organisation (SAMRO)
Mr Nicholas Maweni, Independent Chairperson, introduced the organisation to the Committee. He focused on the changes that had taken place in SAMRO to be more inclusive and to streamline costs. SAMRO represented 19 000 local composers and publishers, four million worldwide.

SAMRO held that fair use was tantamount to “free use” as it would cause uncertainty and result in expensive litigation. There was no “built-in” statutory damages and the onus was on the creator to prove copyright infringement. SAMRO recommended that the Committee conduct an Impact Assessment Study to ascertain how exceptions will impact the copyright collection industry, utilise advice from the experts appointed by the previous Portfolio Committee and engage copyright specialists who had also practiced in the field.

(See Presentation)

Mr F Mulder (FF+) referenced the impact of Covid-19 on performers. He noted that more and more people were publishing songs and music online. Did CAB make sufficient provision for a world in which more and more people would publish online? Were the rules adequate?

Mr Madlingozi asked if SAMRO was paying artists royalties timeously. Where did SAMRO get money to pay performers? What did SAMRO do with the money? What happened to the R47 million that had been gambled in Dubai? How did SAMRO look after artists? Who was on the board? Who was the real owner of SAMRO? How did SAMRO deal with competition in the industry?

Mr Burns-Ncamashe had heard the concerns of SAMRO about the unfair possibility that would prejudice artists if the principle of fair use was retained in the Bill. What was the presenters’ view on tightening regulations in terms of section 39 of the Act to ensure that needed to be done was done? Was there any international case law in the USA where he could find some certainty in judgements that had been handed down in relation to fair use?

Ms Chola Makgamathe, from SAMRO, stated that Covid had been devastating to creatives. Restaurants, etc. had been closed and so there had been no fees to collect for members. There was a drive to move online. There was not sufficient protection for creatives in the CAB currently. CMOs were making serious endeavours to license the platforms but the Copyright Bill would not provide adequate protection for creatives nor did other legislation, such as the Electronic Communications Amendment Act.

She informed Mr Madlingozi that the distribution schedule was on the SAMRO website and that showed when distributions would be paid.

Responding to what SAMRO did with the money, Ms Makgamathe stated that it was paid out to Members. Mr Madlingozi was a member of SAMRO and understood the system. SAMRO was the middleman between creators and users. SAMRO entered into licenced agreements, taking an administration fee and paying the remainder to members according to the distribution schedule and the type of distribution. SAMRO looked out for the members and it was a priority for SAMRO which continually looked to their best interests as that was why the organisation was there.

She agreed that there was a number of CMOs in the building but, as the Farlam Commission had recommended that different CMOs administer different societies, that was the case of the CMOs in the building.

Mr Maweni said all information was available online, including the names and details of the directors. The “gambling” that Mr Madlingozi referred to had been a bad investment made by people who had been elected by members before he had joined SAMRO. It had been a bad investment decision to open a collecting agency in Dubai without following one or two due processes. The matter was currently with the NPA as a case had been opened. He would love Mr Madlingozi to provide assistance in getting the matter finalised.

Ms Makgamathe replied to Mr Burns-Ncamashe’s questions about regulations. Any regulations had to achieve the objectives of the law and operationalise what was in the Bill. They had to be in line with other pieces of legislation; they had to take into account the environment that they were trying to regulate; they had to be fit for purpose. The impact of regulations on the sector had to be considered.

Regarding case law, Ms Makgamathe stated that SAMRO did not have those details but the Portfolio Committee had a strong research arm which could collate cases study in USA where case law was much more mature in terms of copyright law. The US had a more mature legal system in terms of jurisprudence in copyright law and fair use. The issues had been ventilated in courts there and the cases had led the US to tweak its legislation for each specific issue reviewed in court. Case law had informed many changes in the law. However, it would be difficult to apply those examples to SA which did not have such a law, but there would also be limited practical value as SA and USA were very different environments. South Africa legal issues were not applicable in USA and vice versa. SA had case law on fair dealing.

Ms Makgamathe stated that for two days submissions had suggested that fair use would be detrimental to SA creatives. Fair use would also hinder investment at a time when there was already a threat to the African Growth and Opportunity Act (AGOA) which determined SA trade deals with the United States, and then the vehicle manufacturing industry would die and that would kill the Eastern Cape. It was essential to protect SA’s creativity for the children.

Oral Submission  by SA Music Performance Rights Association (SAMPRA)
Mr Pfanani Lishivha, CEO, explained that SAMPRA was needle time right collection management organisation (CMO) representing 38 000 performers directly and 5 500 direct record company members. He began immediately with the issues, starting with definitions. Since performances were embodied in works that were protected under the Communications Act, it was important for the definition of “broadcast” in the PPAB be consistent with the definition of “broadcast” in the Communications Act. The definition should also be aligned to the definition in international treaties and not make reference to transmission “by wire” (as in the Bill) as that would conflict with the provisions of those treaties.

SAMPRA proposed that blanket licencing should continue since it granted a user the right to use any of the recorded performances held and administered by a CMO at any time during the term of the licence and created the reciprocal duty on the user to fully account for all the performers’ performances used during the term of the licence.

It was important, in relation to neighbouring rights, that South Africa acceded not only to the WIPO Performances and Phonograms Treaty (WPPT), the Beijing Treaty in respect of audiovisual performances, but that it also acceded to the Rome Convention, which was the fountainhead of the rights of performers in international law. He raised the issue of SA’s failure to ratify the Rome Convention. When a song was performed in a Rome Convention country, a non-Rome Convention country performer did not get paid.

(See Presentation)

Mr Madlingozi agreed that SA was being disrespected in the world. Was SAMPRA hindered in collecting monies by the delays in finalising the Bills, nationally and internationally? What percentage of the money did SAMPRA take? If an artist and a company shared the royalties and the artist was not under the company but licencing the work, was it still a 50/50 split?

Ms Dlulane appreciated the SAMPRA submission as it had fulfilled her expectation of summarising the written submission and then being specific about issues and proposing what the Committee should do. SAMPRA was just focussed on what they were requested to do. The Committee did not want a summary of the full submission.

Mr Lishivha responded to the point about the disrespect of SA. He did not know if it was disrespect but it was SA’s own fault for not ratifying the Rome Convention which applied only to the performers’ fees. As a result, of the non-ratification SA had lost billions of Rand but the Rome Convention applied only to the performer’s share of the fee. If SA really wanted to better the lives of performers, SA would ratify the Rome Convention as early as the previous day. There were bi-lateral agreements with organisations in more than 50 countries around the world and they all asked when SA would ratify the Rome convention. He gave an example of a SA singer who was extremely popular in Poland but could not receive any royalties because SA had not signed the Rome Convention.

The Bills were not hindering SAMPRA’s business at the time, but if they were implemented, music users would take advantage of the lacuna in the legislation. There would be ongoing fights between musicians and performers. The Bill simply did not do what it stated in the objectives it would do which was why SAMPRA had suggested that experts be invited to assist the Committee.

Regarding SAMPRA’s access  to fees, she pointed out that SAMPRA was limited to 20% of a fee, regardless of whether business was good or bad. The administrative cost had been 14% before the start of the Covid and would have been lowered but it was now reaching the 20%. Mr Lishivha could not comment on the split between record companies and performers as SAMPRA did not get involved in direct deals. SAMPRA were simply informed of the deal and to whom it should pay the record company fee. In addition, 50% was paid directly to the performer.

Finally, Mr Lishivha called for drafting experts to ensure that the Bill did what it was intended to do; the signing of the Rome Convention; and that exceptions be subjected to the three-step test before any damage was done to the industry.

The Committee took a 15-minute lunch break. The Chairperson departed to attend a funeral and Ms J Hermans (ANC) was elected as the Acting Chairperson for the final two sessions of the day.

Oral Submission by Artists and Communities Unite for Fair Royalties and Fair Copyright
Mr Thami Nkosi from the Right2Know Campaign stated that the intention of the Artists and Communities submission  was to present real experiences. The stated goal was that all artists should earn a living. It was the first time that creators (musicians, performers) were coming together with communities (teachers, learners, activists) but the goal was that they all wanted creatives to earn a fair living and for communities to have access to knowledge and education.

Marah Louw, artist and UDF members presented the experiences of thousands of artists who were struggling to put food on their tables. Her plea had long been for work done in the past to be remunerated and now she was campaigning for Artists and Communities Unite for Fair Royalties and Fair Copyright. She pleaded with Members of the Committee to do the right thing and pass the legislation. She was humbling herself to beg for the legislation that would ensure that she could get her royalties. All artists in the industry deserved to get paid.

(See Presentation)

Mr Madlingozi stated that the submission had hit him in his heart when he saw Mama Louw making her plea to government to do the right thing and to protect its people. The law had to be Afro-centric and to defend South Africans.

Mr Burns-Ncamashe said that Ms Louw had triggered the need for urgency in finalising the Bill. It seemed that the artists were satisfied with the Bill as it stood. He added that the Committee had to ensure that the Bill protected the rights of artists.

Mr Soli Philander, speaking on behalf of the Artists and Communities Unite for Fair Royalties and Fair Copyright submission, said that it was an indictment that artists in SA were still living an existence of discrimination and oppression and enduring the negative impacts of legislation that had been set in a time when it intended to discriminate against artists. He found it galling that artists had committed their lives to the betterment of the country and, in that day and age, they were still asking for what should be an inalienable right, the right to ownership of their work and the right to validation and fruits of their works. It was an indictment against the country that SA artists were still asking for respect and acknowledgement in the way that artists were acknowledged globally. It reflected horribly on the country.

Ms Unathi Ndiki, an artist, theatre performer and member of Right2Know, said that fair dealing was a clause invented by the apartheid government so that communities did not get along and get united because fair dealing said one was guilty until proved innocent and so they did not appreciate their own culture. She implored the Committee to remove any clause that made people feel guilty as it impacted on their psychology and the community. Fair dealing did not allow them to be the Africans they should be.

Oral Submission by BlindSA
Mr Jace Nair, CEO, made the submission. BlindSA was involved in awareness-raising, information dissemination, and distribution of information through various publications such as Blind SA News. He said that less than 5% of published works were accessible to blind people and almost all were in English and had been published by NGOs.

The current Copyright Act 1978 was unconstitutional as it violated the Bill of Rights. It did not permit the creation of accessible formats of works, thereby unfairly discriminating against persons with visual and print disabilities. It also did not protect the rights of authors, performers, and other creators to fair remuneration and fair contract terms, as needed to promote the right to dignity and the principle of decent work. The Copyright Amendment Bill promoted the Bill of Rights by amending the unconstitutional Copyright Act with progressive legitimate provisions and so should be urgently enacted.

Blind SA urged that the Marrakesh Treaty be ratified as a self-executing Treaty, enabling the Treaty provisions to be recognised as Domestic law in the country or, alternatively, the Marrakesh Treaty should be immediately ratified.

(See Presentation)

Mr Burns-Ncamashe said that BlindSA knew exactly what they wanted and understood the constraints contained in the current legislation. The organisation was looking to the Committee to be more agile in passing the law. He was glad that the organisation had raised the importance of the Marrakesh Treaty as that was one of the reservations raised by the President.

Mr Madlingozi asked if the court case had been finalised and whether BlindSA had received the outcome that it had wanted in respect of books and other media. Could more be done?

Mr Mbuyane asked about the processes regarding royalties in relation to the adaptation of  works. The Committee needed to deal with the issues for BlindSA in the regulations as there was a court case around the matter.

Mr Nair said that a court case had been initiated May 2020 and had resulted in the President referring the CAB back to Parliament. BlindSA had since launched a court application citing the 1978 Act as being unconstitutional and that had a court date of 21 September 2021.

Mr Christo de Klerk, Vice President, BlindSA, said that the high court application was against Minister Patel and Minister Pandor, the Speaker of the National Assembly, the Chairperson of the National Council of Provinces (NCOP) and the President as the 1978 Act was unconstitutional and the court was asked to decree that section19D of the CAB should be read into the Act to give it  constitutionality and, secondly, to ratify the Marrakesh Treaty within 12 months. 90 countries had ratified the Treaty, including 14 African countries, and it was a shame on the government for violating the rights of the blind and visually impaired. No one has indicated an intention to opposing the case.

Mr de Klerk said that drafting regulations would not work as regulations could not change the law and the regulations fell short of what BlindSA wanted, which was cross-border exchange.

Mr Ntsahveni Netshitun said that waiting for the process to unfold would be a wasteful effort as 19D was unopposed so should be read into the Act immediately.

Mr Nair said that in respect of royalties, BlindSA would purchase the original book and then reproduce the book by typing it up and brailling it. A 300 print page book took one month and R24 000 to reproduce. Royalties were also a concern to BlindSA as blind and partially sighted people were also creators, musicians and artists and so BlindSA supported the CAB, except for the provisions noted in the submission, as blind people would benefit from royalties. For 40 years BlindSA had faced a book famine which was why so few blind and partially sighted people were well-educated professional people. In fact, the blind were unemployed or low-skilled people. Young blind people should, in the future, have access to published works, to information and knowledge. Section 19D of the CAB and the ratification of the Marrakesh Treaty should immediately be put in place.

Oral Submission  by the Copyright Coalition SA
Ms Chola Makgamathe, Legal Representaive, introduced the organisation as a group of stakeholders from publishing, music, filmmaking and other creative sectors, who had come together in opposition to the Copyright Amendment Bill. The Coalition believed that copyright amendment was necessary, but that the current Bill stood to hurt the very creators it aimed to protect. The current Bill also stood to destroy creative industries, and would greatly reduce the incentive for creating original works, which would have a recolonising effect on South Africa’s education and culture. The Coalition believed the Bill was poorly drafted and the authors of the Bill had a bias towards certain tech giants who had been listened to ahead of local legal experts and affected industries.

Dr Joel Baloyi had been a member of the panel of four experts that had been called on by the previous Committee to review the Bills.

Dr Joel Baloyi stated that his own submission was available to the Members. He presented Interpretational Problems Arising from Bad Law “Straining the Courts” with “Tortuous Schemes” and Odysseys”. The courts had said that it was the function of Parliament to produce laws that were very true to the doctrinal foundational principles arising from the Constitution and the Rule of Law, and in this particular case, laws should also be based on principles arising from international treaties. The courts had said that it was the duty of Parliament to produce laws that would be widely accepted.

It was important that Parliament fixed what was wrong and delivered effective legislation that would ensure that actors did not die poor and that the principles of the Marrakesh Treaty and the Beijing treaty be embedded in the legislation. That would ensure the legislation complied with the Constitution, the Rule of Law and international treaties.

(See Presentation)

Mr Burns-Namashe thanked Dr Baloyi for the case references. What would his approach be to the principle of proportionality relating to creator/user scenario in the fair use doctrine? There was a contest in that area which required the Committee to consider those legal principles.

Dr Baloyi said that the copyright system was never conceived for authors only: it was conceived to encourage the author to create more, which was why after a certain time after the death of an author, the works had to be made available to the public. It aligned with the Constitution in that rights were not absolute and could be limited. He was not against exceptions that aligned with the three-step test. It was a question of whether an impact assessment study would determine the impact. Fair dealing was not an apartheid law but went far back in English law. In fair use, the onus was on the owner of the work to prove it was his or hers. Proportionality was embedded in the system.

In conclusion, he welcomed the process and hoped that Parliament would fulfil its duty. The question to be addressed was how the Bill benefitted the author.

The Chairperson reassured presenters that all would be heard that evening before closure of the hearings.

Oral Submission  by Professor Caroline Ncube
Professor Caroline Ncube, Prof of Intellectual Property at UCT, spoke to the alignment of section 19D with the Marrakesh Treaty and the obligations of the Bill of Human Rights on the drafters of the Bill. The Marrakesh Treaty was ratified in 2013 and had come into force in 2016. A decision had been made to accede to the Treaty. Article 12 of the Marrakesh Treaty was intended to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled. She referred to the President’s letter that referenced the Marrakesh Treaty but there were no reservations in relation to section 19D in respect of the Constitution or the three-step test.

The only relevant question was whether going beyond the provisions of the Marrakesh Treaty invalidated the Bill’s alignment to the Treaty. The short answer was, “No.” Prof Ncube explained that the Treaty permitted countries to go beyond the scope of the Treaty.

(See Presentation)

Ms Dlulane stated that other presenters had referred to section 19D and there were proposals that experts should look at the issues, but Prof Ncube had explained that the Bill had already addressed many issues related to the Marrakesh Treaty. Presenters had been concerned that the Bill should go beyond Marrakesh but Prof had responded in a way that addressed everyone’s concerns.

Mr Madlingozi asked for the reasons why SA was taking so long to ratify the Marrakesh Treaty. What advantages or disadvantages were there for countries that went beyond the Treaty?

Mr Burns-Ncamashe assumed that countries did not cede their sovereignty by signing a treaty but became part of a group of countries standardising the law. In that particular case, the President had identified the implications of the Marrakesh Treaty as aligning with the Constitution. It was about re-affirming an important constitutional value of human dignity. Having listened to a number of presentations made, would Prof Ncube see a situation of legal uncertainty if the Committee had to take the Bill forward in its current form without being instructed by other views that had been expressed?

Prof Ncube said that she could not presume to answer the question of why the country had not ratified the Marrakesh Treaty although the decision had been taken to ratify the treaty. She confirmed that the country had the leeway to move beyond the treaty and there were no disadvantages in doing so. That had been confirmed by the panel of experts during the time of the previous Committee.

She confirmed that Mr Burns-Ncamashe’s comments were on point. A country did not lose sovereignty when signing a treaty. If section 19D went forward as it stood, there would be no legal uncertainty. Even the definition of disability was very clear.
The country had the policy space to legislate as proposed in section 19D. She added that in her view regulations would not assist as the regulations in section 13 was limited to reproduction and therefore would not assist the disabled.

Oral Submission by Section 27
Dr Sanya Samtani, graduate of Oxford in copyright law, spoke to the urgency of making changes to copyright in the country. The current Copyright Act (1978) was unconstitutional and discriminated against people with disabilities.

Dr Samtani was adamant that clauses 13 and 20 were not arbitrary deprivations of property under the Constitution as both easily passed the ‘sufficient reason’ test. Even if courts held copyright to be property, clauses 13 and 20 passed the ‘sufficient reason’ test as they furthered rights in the Bill of Rights. CAB was compatible with international law as the Constitution did not require a verbatim adoption of treaty language for legislation to give the treaty domestic effect. Furthermore, objections to section 19D(1) of the CAB were red herrings.

Marcus Low, was a published author, and as an author, he had no concerns about selling his book under fair use. He had a visual disability and had engaged in the Marrakesh Treaty extensively. He provided details of what it was like to be a visually disabled student and professional person in SA, especially one who worked in epidemiology. He reiterated that SA should domesticate the Marrakesh Treaty.

(See Presentation)

Mr Thring asked Dr Samtani for her view of the statement that fair use meant free use and robbed authors of their rights and their remuneration. Those authors wanted fair use removed from CAB. Could she succinctly justify her assertion that fair use should be retained and CAB should not be amended?

Mr Burns-Ncamashe asked Dr Samtani for her views on section 25 to the effect that deprivation of property was constitutionally acceptable if there was a law of general application. The previous day presenters had suggested that section 25 was absolute and did not take cognisance of the exception. Clause 12D was viewed by those people who held ownership of copyright as an unfair expropriation of property. Would Dr Samtani concur?

Dr Samtani was aware of the contestation of fair use as too broad and not a South African concept but section 27 supported free use because it was narrowly tailored and there had always been exceptions in order to create the balance between users and creators. The CAB contained a hybrid version of fair use. It was not open-ended as in the US version but had a specific list.  It was more open than fair dealing through its use of the terms “such as”. It future-proofed the CAB for newer technologies, research at the cutting edge and so on. When machine learning took a step forward, the CAB did not have to be rewritten.  It supported research and scholarship and ensured that people with disabilities were not excluded. It was not open-ended as only related purposes to the ones in the such as example would be allowed. 12A(b) allowed for the fair use test.

She disagreed that clause 12D was unfair expropriation to creators as the CAB would be a General Law of Application and would not permit arbitrary expropriation of property. Deprivations, as long as they were authorised by a general law of application and were not arbitrary were allowed. The courts had not made a ruling on section 25 in relation to copyright but she pointed that intellectual property had not been treated as property and so currently it was unlikely that copyright would be viewed as property but even if it were, it would pass the constitutional muster.

She concluded that passing the CAB was urgent and was constitutional. The Bill did not need to be rewritten but if changes were made, the Committee had to consider its impact on the rights to education and equality and the need to maintain the existing balance between rights.

Mr Ben Cashdan, TV producer, spoke on fair use. The Copyright Amendment Bill would help creators by expanding their ability to earn from, own and create copyright protected works. He was adamant that fair use would be beneficial to all creators. Fair use had to be balanced out by fair royalties. He called for the re-inclusion of the “retrospective” royalties by legislating that previously created works could earn royalties in the future. That was not really retrospective if the Bill talked about future royalties. Fair use would not solve all the problems but it would clarify fair use. He explained how royalties were determined and how snippets of songs were deemed fair use. Section 12D said that publishers had to be fair in the pricing of textbooks or schools would be given them free of charge, so it was an ultimatum to be fair.  Fair use would not make theft of intellectual property legal; theft of the use photographs would still occur but it would be clear that it was illegal.

Mr Cashdan said that the Committee should stand firm and ignore the copyright lawyers and pass the CAB. Countries around the world would emulate the legislation.

(See Presentation)

Mr Madlingozi said that it was clear that it was time to stop reconsidering; it was time to make everything Afrocentric.

Mr Burns-Ncamashe stated that Mr Cashdan had reminded the Committee to be fundamentally concerned about human rights and knowledge and human development. A useful piece of advice was to be aware of the need to show an appreciation of the human property value chain and not only focus on segments of that value chain only. The Committee had to be mindful of the agenda of transformation when finalising the Bill.

Mr Cashdan said the job would not be easy as it impacted on so many people and their livelihood but when large countries and multi-media corporates put their point, the Committee should listen but focus on the purpose of the legislation. When artists complained, it was necessary to educate creators. Recreate would assist in the drafting of regulations and educate the artists.

Oral Submission  by the Health Justice Initiative
Ms Fatima Hassan, Human rights lawyer and founder of the Health Justice Initiative, said that HJI drew on the expertise of researchers in law, public policy, economics, and public health, as well as on universities and scientific experts in and outside of South Africa and believed that the learnings from working on access to vaccines could be applied to copyright.

Though patents were a key aspect of the discussion, copyright had a vast impact on how workable the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Waiver would be in the domestic legal system in South Africa. Copyright limited the right to repair; copyright limited the right to research; copyright could create major obstacles to the pursuit of essential research endeavours and the emergence of solutions to the COVID-19 crisis. Without adequate limitations and exceptions to exclusive rights, copyright law would prevent the use of techniques, such as text and data mining and machine learning, that were necessary to develop new treatments.

Prof Andrew Rens explained that a key link between copyright and healthcare was the software used in the machines in hospitals, and also the right to access international research results or journals.

(See Presentation)

Mr Mbuyane asked if HJI accepted all sections of the CAB.

Mr Burns-Ncamashe appreciated the reference to section 27 as far as it related to healthcare matters. He asked about the relationship between the Copyright Bill and TRIPS. By endorsing the Bill would the Committee be tampering with IP rights or would the Committee be arbitrarily stifling enforcement measures that could open up the floodgates in ways that could be a barrier to trade.

Prof Rens stated that it was the view of HJI that the current CAB was consistent with the TRIPS Agreement. It was interesting that the TRIPS Agreement had not been raised before. From a public health point of view, the CAB was needed to ensure the right to repair and the right to research are legitimate. The examples in his submission would not form a barrier to trade. The USA fair use had not impeded trade and no one had brought a case against fair use in the USA. The CAB was also important to text mining and data mining. TRIPS enabled data transfer but it had not worked well in South Africa as doctors had to wait for someone else in the USA to fix medical technology. CAB could enable to TRIPS to fulfil its intentions.

Ms Hassan stated that, because the pandemic had a long way to go, CAB was essential to ensure that life-saving technology could be used effectively and therefore supported section 27.
South African National Council for the Blind (SANCB)
Mr Lewis Nzimande, National Executive Director and Chairperson of the Braille Society and Ms Elza-Lynne Kruger, National Council or the Blind and National Executive Director for Tape Aid for Blind and the National Library for the Blind.

SANCB provided two solutions that it believed would ensure that the CAB was aligned with the Marrakesh Treaty. The first was a domestication measure.  The National Assembly and the National Council of Provinces had recommended ratification in 2013. The second solution was to facilitate the Marrakesh Treaty by appending provisions to an amended South African Library for the Blind (SALB) Act. SANCB also pleaded with the Committee not to support the removal Clause 20 (Section 19D) from CAB in order to append it to the current Copyright Act.

(See Presentation)

Mr Madlingozi asked what SANCB had done about books making books available for visually impaired people. How many schools catered for the blind in townships?

Mr Burns-Ncamashe asked whether section 6 of the Constitution was considered a mechanism that enhanced the rights in the Marrakesh Treaty because it talked about sign language but might not include Braille. Was section 6 inadequate in terms of providing secure rights to the visually impaired?

Ms Kruger said that ePub3 was the format in which publishers should present material for conversion to braille in  terms of the Marrakesh Treaty. SA publishers were just beginning to use ePub. PASA and all the publishers in SA had never denied permission for the conversion of a book into audio talking books or braille. ePub could be converted into any language, making conversion to braille in any of the South African languages far easier.

She stated that there were 23 Schools for the Blind and 463 schools for Learners with Special Education Needs (LSEN) which included blind learners and print disabled. Millions of South Africans could benefit but the organisation was very tightly regulated by government and only members could access the material.

Mr Lewis Nzimande said section 6 of the Constitution on rights of language did not limit the realisation of access for the blind and partially sighted, but in order to access section 6 rights, one required an accessible format. The right itself was adequate to allow for the realisation.

He concluded that the Council could not find a rational basis for stopping the ratification of the Marrakesh Treaty. It was unusual for SA to be last in the queue when it came to a human rights issue. He understood the complexity of the Bill as far as fair use, commercial access and so on was concerned, so he suggested that the rights to blind could be provided for by acknowledging the Marrakesh Treaty.

Congress of South African Trade Unions (COSATU) / Trade Union for Musicians of South Africa (TUMSA)
Mr Matthew Parks stated that COSATU strongly supported the CAB. COSATU supported the progressive objectives and provisions of CAB that would enable students and learners to access unaffordable educational materials. It would also open access to life saving medicine. South Africa needed a humane and progressive approach to copyright and could not put profits above lives, education, health and jobs.

TUMSA was represented by Vicky Sampson, President of TUMSA, and Mr Gabriel Le Roux, General Secretary. Vicky Sampson stated up-front that in terms of its position towards Social and Economic Transformation, TUMSA supported the concept of fair access to Education for all, but specifically for the disenfranchised. Mr Le Roux, spoke from the perspective of SA professional musicians and specifically composers and authors of such music who derived a significant portion of income from royalties. He pointed out that royalties were derived through the sale, broadcast, live performance and streaming of copyrighted works. The practical implementation of the “Fair Use” Clause, which leaned heavily on the generality of the phrase “such as”, introduced potentially severe impediments to the protection of the economic rights of both composers and authors of music works.

(See Presentation)

Mr Burns-Ncamashe said that the Committee had been told that the Bill would allow reproduction with acknowledging ownership of authorship and that was considered deprivation of property which was tantamount to deprivation without expropriation. He asked COSATU for its view on that point.

Mr Burns-Ncamashe stated that some organisations had presented a view that fair dealing was a last vestige of apartheid-era legislation that was prohibitive to a progressive agenda as against fair use which was innovative. What was Mr Le Roux’s view of such posturing and articulation to the Committee?

Mr Madlingozi thanked Mr Parks. He said the Bill should protect and look after young and old black artists and not chase after American or European law. It was necessary to create a law that would protect artists, especially black artists who had been ridiculed when they were young and told that they were useless and whose songs had been changed. Justice should be done and artists should be protected.

Ms Dlulane spoke as one attached to a sister Department. She hoped that all those who wanted the Bill to be revamped had realised that it was not easy to transform the ills of the past. It was a long road to freedom. The previous Committee was being criticised, maybe constructively, but that Committee had put the basic Bill together and now the Committees were asking people to advise where there were shortcomings.

She thanked everyone who had assisted the Committee. The Bill would be, or had been, re-tagged. Covid had brought people closer to the poorest of the poor and now the poor would get their due. The artists had said that enough was enough. The Committee of Sports, Arts and Culture could say that even if another pandemic came, the Bill would be passed. She thanked everyone as her Committee would not be part of the finalisation of the Bills. She hoped that the NCOP would do more (in terms of public hearings) than the two days they had had to listen to the people.

Mr Parks replied that said that the Bill had a proper foundation and it was just a question of enhancing it now that the constitutional issues had been resolved eliminating certain clauses, retagging and allowing for public comment and so it should no longer be unconstitutional. It needed a balance between education and supporting creators and artists. It was not easy, but it could be done. He agreed that the Bill could help struggling artists to move past the painful past. He agreed with Mr Madlingozi that the Bill would help black artists. It was technically a difficult Bill to process but the President’s referral had given the Committee the opportunity to get the balance right.

Mr le Roux said that TUMSA was a trade union for South African musicians and wanted the SA brand to be at the forefront and to take the SA brand onto the international stage. He asked the Committee to listen to all sides of the discussion. If the two Bills could be split, the protection for performers could be concluded soon. The Bill was pro-transformation in an economy that urgently needed economic and socio-economic transformation. TUMSA did not believe that it was necessary to start the process from scratch. As a SA patriot, he believed that it had to be a SA Bill that would ensure development. It had to work for everyone.

Concluding Remarks
The Chairperson thanked Mr le Roux for his wise words about listening to both sides and closed the public hearing for the Bills.

The Secretary reminded the Committee that there would be no meeting the following day and that the new programme would be available on the following Tuesday.

Meeting was adjourned.


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