Copyright & Performers’ Protection Amendment Bills: CLSO response to submissions; Committee Report on DTIC Quarter 4 Performance

Meeting report

Opening remarks
The Chairperson welcomed Members and Senior Legal Advisor, Adv Charmaine van der Merwe of the Office of Constitutional and Legal Services, who would provide Members with legal advice on how to address the remitted Bills, the Copyright and the Performers’ Protection Amendment Bills, following the opportunity given to the public to provide input.

Presentation by the Constitutional and Legal Services Office
Adv van der Merwe stated that the process was a different one from the usual process because the Committee was dealing with remitted Bills and not the normal processing  of a Bill.

She pointed out that the Committee had already determined to respond to three points made by the Presidency:
-The Bills had been re-classified as section 76 Bills;
-Retrospective and arbitrary deprivations of property, i.e. clauses 5, 7 and 9 inserting sections 6A(7), 7A(7) and 8A(5), were to be deleted from the Bill;
-Impermissible delegation of legislative power to the Minister, i.e. clauses 5, 7 and 9, were to be deleted from the Bill.

The President had also indicated a concern about the lack of public participation related to fair use and that had been addressed by calling for public comments, which the Committee had heard and read and which now had to be reviewed. Adv van der Merwe reminded Members to restrict any amendments to clauses 3, 19 and 20.

The same public participation process had been engaged in to consider whether the Bills complied with International Treaty Implications, which was another Presidency concern. There the Committee could consider any clause in the Bill that related to the matter. One comment related to clause 2.2(a)(1)(b), which she did not think was relevant.

The last concern was some clauses dealing with copyright exceptions might constitute arbitrary deprivation of property and affect the right to freedom of trade, occupation and profession. That was a constitutional consideration.
Adv van der Merwe explained that the Committee was now dealing with a section 79(1) process. The Joint Rules of Parliament JR 203(2) stated: “The committee must consider, and confine itself to, the President’s reservations.” The way forward was in terms of Joint Rule 203(3)(b) or (c):
“(3) lf the committee agrees with the President’s reservations, the committee must -
recommend in its report how any procedural defect can be corrected, if the reservations relate to a procedural matter;
present with its report an amended Bill correcting any constitutional defect in the substance of the Bill, if the reservations relate to the substance; or
recommend that the Assembly rescind its decision to pass the Bill and reject the Bill, if it regards the Bill as being procedurally or substantively so defective that it cannot be corrected.”
Adv van der Merwe then dealt with the specifics of the public comment.
Policy direction
There were two schools of thought in respect of policy direction: Fair use versus fair dealing as the appropriate system for South Africa.

Fair use would allow for more rights to creators and open up the economy while the legislation would set out principles for doing that. The Fifth Parliament had combined the two approaches in the Bill by creating a hybrid approach that opened up rights but added specific lists determining what was permissible. She added that the purpose of the Bills, in eyes of the Department of Trade, Industry and Competition (dtic), was to protect creators and originators of work.

Arbitrary Deprivation
The question was whether intellectual property (IP) was in fact property. The “Laugh it Off” judgement and the “Moneyweb” judgement in the SA courts had determined that intellectual property was a property right. However, property was not a positive right but the right not to be arbitrarily deprived. Therefore, the deprivation of rights from copyright holders would be a deprivation - except if there was a law of General Application, which was the case with both Bills and so Adv van der Merwe determined that there was sufficient reason for deprivation. In respect of reasonableness, she believed that the four-factor test ensured reasonableness and it could be tested in court.

Exceptions: Section 22
Looking at the right to choose trade, occupation and profession, one had to look at whether the legislation imposed a legal barrier or if it made it more difficult to pursue a particular trade. She pointed out that fair use allowed the occupations under consideration to continue, as they did in many countries around the world that operated under the fair use regime.

Compliance with international treaties
Again, there were two schools of thought in respect of international treaties: the Bills complied; the Bills did not comply. Adv van der Merwe presented to the Committee the process followed by the previous Committee in looking at international treaties.

South Africa is a member of the World Trade Organisation and, as such, was bound by the Berne Convention and Trade-Related Aspects of Intellectual Property Rights, the TRIPS Agreement. Given the economic and social benefits that a fair use exception would bring, the Constitutional and Legal Services Office was of the view that the South African Courts would require strong and persuasive arguments that fair use did not comply with the Three-Step Test which provided an international standard in respect of exceptions and limitations. Although the exceptions and fair use complied with all three steps, she advised that specific exceptions in the Bill could be strengthened or clarified to make compliance clearer.

Copyright Amendment Bill, B13B-2017
Specific clauses to which amendments were recommended based on inputs from the public
Clause 1 – definitions
(a)Accessible format copy – should be aligned with the Marrakesh treaty. Depending on the wording, it might have to go into section 19d and might have to be advertised.
(f) “technological protection measure”, “technological protection measure circumvention device” – should be aligned with the European Union Directive on Copyright, Article 15 of World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), Article 18 of WIPO Performances and Phonograms Treaty (WPPT) and Article 15 of the Beijing Treaty. That amendment could be made.

New recommendations
New definitions: “authorized entity” (linked to Cl 20, S19D), “broadcast”, “lawfully acquired”. House permission would be required and they would have to be advertised as they would extend the Bill.

New clauses
Sections 11A and 11B of the Act to extend the relevant new exclusive rights of ‘communication to the public’, ‘making available’ and ‘distribution’ to published editions and computer programmes.  Those rights would have to be extended to computer programmes to make the Act compliant with the WCT but the amendment could be made as it was linked to treaty compliance. The amendment would have to be advertised as it was a material amendment and the Committee would require House of Assembly permission to extend the scope of the Bill.

Clause 12
i.The exceptions in 12B-D need not be repeated in 12A  -  technical amendment that would not have to be advertised, nor require House permission.

ii. The moral rights of author: Use wording of section 12(4) “that the source shall be mentioned, as well as the name of the author if it appears on the work”, removing the words “as far as is practicable”. It would strengthen the Act and because it was based on public input, no further input required.

iii. Section 12A has fair use criteria, but that does not apply to the parallel set of specific exceptions (sections 12 B – D) and thus 12B-D do not comply with the Three Step Test. Changes could be made without further consultation, depending on the wording.

iv. 12B(1)(c): Reproduction of a work by a broadcaster – include ephemeral provisions. The change would have to be advertised.

v. Section 12(B)(1)(e)(i) may be deleted to remove duplication

vi. 12B(1) (f) add “language and culture” – no advertisement necessary.

vii.12B(1)(i) – a copy should only be allowed for works lawfully acquired. No advertisement was necessary but if a definition of lawfully were to be added, that would have to advertised.

viii.12C – a layout error. The final phrase in 12C(b) belongs to both 12C(a) and (b). It was a technical change.
There were proposals to use “commercial” rather than “economic” and that the three step test be added. The latter would have to be advertised and the wording of the three step test amended to align with the Constitution.

ix.12D(1): It was proposed that the three step test be added. Advertisement required.
Clause 20 – Section 19C and 19D
Section 19C and 19D contains a duplication – can be deleted.
19C(4) – limitation already included in (1).

19D(3) – include a reference to an authorised entity (added to 19D(2)) – can be amended but the proposal for a new definition would have to be advertised.

Clause 29
Clause 29 was not previously advertised and referred to the Cybercrimes Bill which had since been passed, although not yet operational. Could remove the sections so that Bill did not repeat deleted Bill – technical amendment.

Clause 33 – section 39
S39(cH) refers to (p) instead of (h) – technical amendment.

Performers Protection Amendment Bill, B24B-2016
Definitions
“Broadcasting”: remove the reference to transmissions by wire. Could be amended.

“Producer”: add “or the entity which” to align with WPPT definition. Adv van der Merwe stated that the amendment was not recommended as in SA law a “person” is a legal person or entity. If “person” was limited in the definition by adding “or entity”, the use of “person” throughout the Bill would have to be amended

Clause 3 section 3A
The wording “which ever was applicable” did not give sufficient clarity and was not in line with the Rome Convention and the Performances and Phonograms Treaty (WPTT). Amendments recommended. No need for advertisement.

Clause 6 Section 8D
Add “into” on page 9, line 5 after “entered”. Technical amendment.

Discussion
The Chairperson called for Committee engagement with the presentation.

Mr M Cuthbert (DA) reminded Members that he had only joined the Committee in the current Parliament and so had not engaged with the Bill previously. He had raised concerns in the previous discussion on the Bills and those matters remained a concern for him. He respected the amount of work that had gone into the presentation, but looking at the sources used by Adv van der Merwe and some of the arguments used to justify the fair use regime, they seemed similar to those who had both trained the Committees and had provided public submissions. It was too close for him not to notice. That was concerning in itself. He did not query the Legal Advisor’s ethics or integrity, but it seemed to be some sort of a stitch-up and that there was a pre-ordained outcome that was supposed to be achieved by the Committee. He had expected a far more objective view on how to handle the amendments but it seemed the proposals led to the Executive’s desired objective.

Mr Cuthbert noted the number of amendments to the Bill and wondered whether it was a common occurrence. There were significant amendments, even though they were restricted to limited and specific sections of the Bill. Surely that indicated the fundamentally flawed nature of the Bill? It showed that it was not suitable for the context in which it found itself. It showed that finalisation of the Bill had been a rushed job by the Fifth Parliament to execute the Executive’s bidding.

His concern, previously expressed, had not been taken seriously by the Committee. A broader range of intellectuals and academics should have trained the Committee or provided input in the process. He did not believe that that was the intention of whoever had arranged said people to train or present to the Committee. He still felt a foregone conclusion had been arrived at and the Committee Members who were new in the Sixth Parliament had not been given a proper opportunity to engage fully with all views. It seemed that Members were being painted into a particular corner and that was problematic and undermined the spirit of the meeting.

Mr Z Burns-Ncamashe (ANC) appreciated the comprehensive nature of the presentation and that pertinent issues had been pointed out by Adv van der Merwe that legislators had to consider as the responsibility lay with Parliament to pass legislation that embodied the Constitution and protected the creative inventions of the people and promoted innovations of the people so that they could unleash their full potential as the Constitution envisaged. Parliament had to create an opportunity to incentivise the people. There were important principles that should underpin legislation so that it was in the interest of the people. Adv van der Merwe had created space for the Committee and Parliament to have a sense of what had to be done. Members should not be oblivious to the pushback of business as it was a new regime that put the creators and inventors of work at the centre after decades and centuries of exploitation. The Committee and Parliament had the opportunity to do what was right and that was to pass legislation that protected the people, promoted innovation and incentivised creation.

He asked about international treaties. He was aware that it might not be binding but he asked about the relevance and the principle of the Declaration on the Rights of Indigenous People. The principle inherent in that declaration was that of prior informed consent. He also referred to section 39(3) of the Constitution which put customary law on the same pedestal as common law and Roman-Dutch law so that when dealing with legislation, Members should not just limit themselves to common and Roman-Dutch law but also consider customary law as SA was largely a cosmopolitan society where most people lived in rural areas and most creative arts and cultural works embraced the values of people in the rural hinterland.

Mr Burns-Ncamashe noted that jurisprudence had to allow for triangulation as an instrument to strengthen the legislation because then it could respond to international challenges while strengthening the values of rural people.

Ms J Hermans (ANC) appreciated the document supplied by the legal team and noted that the Committee should consider the legal opinion which had taken into account all the inputs by the public and stakeholders. She asked Mr Cuthbert about the explanation he had received on the previous occasion regarding the fact that the academics had been chosen because they operated in that sector. He had not raised an objection to the explanation. Why had he now raised the matter again? Who had been left out and not given the opportunity to engage with the Committee? Why could that person/people not have made a submission as part of the public process? It was not right that a Member of the Committee impugned the integrity of the legal team. Regarding the process going forward, she noted that several days had been set aside and she looked forward to engaging with the legal team in the process.

Ms Y Yako (EFF) said that the Bill was very convoluted. She found it difficult to express how she felt but perhaps there was a lot that the Committee did not understand and she asked the Members to be patient with one another. She asked Adv van der Merwe whether Australia had adopted fair use or fair dealing. She was aware that the Fifth Parliament had consulted experts and asked whether any of the same experts had been utilised by the current Parliament.

Mr S Mbuyane (ANC) said that the process should not be rushed to a conclusion nor should they engage in a dialogue about who had been given an opportunity to present. Members should be sober and understand why the Bill was before them. Some people were going beyond their mandate. The Bill had been created to respond to the needs of the poorest and the poor who were still not benefitting. Artists, writers and other people who were supposed to be beneficiaries of the Bill were not being taken care of. The Committee could not allow a situation where Members came to discuss academics who were competing and whether they were correct when the Bill was about the royalties due to the poor.

He asked Adv van der Merwe about clause 3(a), the question of royalties and remuneration. There had to be clarity on that point because that was what the Bill was about. People had to know what they were to receive. He also asked about the constitutionality of the wording of the treaties. It was his understanding that even if a country had not signed a treaty, where it protected the interest of people, that had to be taken into account.

Mr Cuthbert responded to the comments by Ms Herman, through the Chairperson. She had answered her own question by pointing out that several days had been set aside for deliberation of the matter. He had not wanted to prolong the discussion at that point but he was within his rights to raise the matter now that the Committee was discussing the Bills. When certain individuals were given more than one bite of the cherry, their views became the predominant view, even if not intentionally meant. He was concerned about the predominant world view being passed on by those who had undertaken the training.

To give some context, he said that one professor involved in the training was closely linked with the Washington College of Law which was on an active mission to raise funds to create fair use legislation across the world. There were contradictions in what that group of people were saying. In the previous Parliament, that academic had said that the Bills would comply with the Constitution, but that had proved not to be the case.

Mr Cuthbert stated that some academics had, in the past, claimed that fair use did not comply with the three-step test and was therefore not valid. Mr Burns-Ncamashe accused him of special interest but the individuals who trained the Committee seemed to be linked to special interests and big business. It was therefore ironic to accuse individuals of special interest when the people given the opportunity to train the Committee were, in part, funded by international corporations. He believed the Members could have had a broader view in their training. He did not know how or why the decision was taken to give some academics the opportunity to train.

He was aware that every academic had the opportunity to present but some academics were given only one opportunity to engage with the Committee whereas other academics were given three opportunities. Surely, there was some inequity there. He asked that the Committee not obfuscate but be honest about the issue. Those who had been Members of the Fifth Parliament might not see it, but it was clear to him that there was some form of bias. He would rather that the Committee owned up to any particular outcome that it was intended to achieve. The façade of impartiality and fairness was neither honest nor true and honesty was the first requirement of any public representative and he believed that he had to be clear with the public. He would continue to raise his concerns, but that was his response to Ms Hermans. He knew that she had also raised concerns.                                                                                                                                                                                                                                                                                                                                                                                           

He had asked a question he considered straightforward and one he would ask in any circumstances, i.e. whether people had been paid. He accepted that the academics were not paid but he struggled with the idea that more than one opportunity was given to that one group. It was always best to get both sides of the story.

Mr Burns-Ncamashe did not wish to enter into a dialogue but the Committee needed a broad framework to provide guidance to the issues raised by Adv van der Merwe. It was important not ever again to pass legislation that would subjugate and exploit the people of SA. It was not only about the legal correctness of the legislation, but also about justice. That should be clear to all Members of Parliament. The legislation created by Parliament had to go beyond narrow legal correctness; it had to provide justice which, in that case, was about the restoration of dignity to those who had been discriminated against, exploited and subjugated. It did not matter how people felt about it; it was an intentional resolve and a noble thing to do to always be on the side of those people who had been exploited and subjugated.

He respected Mr Cuthbert’s views and even those of the academics, but the issue was not really about Mr Cuthbert’s view and the different theoretical perspectives - even academics had a theoretical school of thought based on their ideological beliefs - but in that case it was about SA’s history. One had to be determined never to create legislation that exploited people. No matter how tiny or minute, there had to be no exploitation of the people. That was the crux of his argument.

The Chairperson requested the Legal Advisor to suggest a way forward.

Adv van der Merwe responded to Mr Cuthbert’s comments. She stated that her advice was on legal matters only, and not on policy matters. The policy proposal was fair use and so her presentation had to focus on fair use. Fair dealing was a concern because it did not adhere to certain aspects of the Constitution and if the policy were to be changed, that would have to be a consideration.

She informed Mr Burns-Ncamashe that the Intellectual Properties Act 28 of 2013 was not yet operational and the Committee would have to ask the dtic why that had not been implemented as she did not know. In response to Ms Yako’s question about Australia, she said that Australia was looking at fair use. The country had considered it in 2014 and had found that it was in compliance with the three step test. Although the government was still consulting on the matter, it seemed that the country would go that way. She added that a policy decision was never a forgone conclusion. In addition a number of other countries had adopted fair use, including Israel, Sri Lanka, the United States, Bangladesh, the Philippines, Poland and Singapore while
Malaysia had adopted a variant of fair use.

Adv van der Merwe referred Mr Mbuyane’s question on royalties to the Department as she had only looked at the public comment and had noted how the legislation could not conflate sound and audio-visual methods of payment. Regarding treaties not yet signed, she stated that nothing stopped a country from looking at international best practice and looking at treaties was one way of seeing what other countries were doing. She added that in some cases, domestic legislation was needed before some treaties could be ratified. When it came to the decision in respect of fair use or fair dealing, the legislation had to ensure adherence to the constitutional obligations to education and equity.

Regarding the way forward, Adv van der Merwe stated that Members had access to all the submissions and they should advise if she had overlooked any, but she believed that she had included all points. She reiterated that she had not considered policy comments. The Committee could have a general deliberation of the Bill and attempt to reach consensus or Members could go through clause by clause as was often done. However, she was aware that the secretariat had drawn up a proposed programme.

The Secretary said that deliberations would start the following week. Members had copies of the submissions as well as an internal document which summarised the matters for Members. The Committee should determine the approach it wished to take. It could start with a broad discussion or go clause by clause. Members could also bring forward any proposals from stakeholders or in his/her individual capacity. Some matters might require permission from the House of Assembly and some might need to be advertised, but he would advise on those issues once the Committee had made decisions on the matters.

The Chairperson suggested that the Committee proceed as suggested. The following Tuesday the Committee would discuss process and determine how decisions or resolutions could be reached.

Mr Cuthbert asked the Secretary how many sessions had been set aside for deliberations.

The Secretary stated that he had assumed the process would be concluded by end of the year but that would not be possible if House permission or advertising was required. He was not sure offhand how many sessions had been scheduled for the process.

The Chairperson said that the detail would be deliberated at the next session.

Mr Cuthbert suggested that there seemed to be about 18 potential amendments and suggested they be broken up into equal bite-sized chunks according to the number of sessions so that each could be discussed thoroughly.

The Chairperson agreed to note that proposal.

Fourth Quarter Report 2020/21 on the financial and non-financial performance of the DTIC –
The report was flighted by the Content Advisor. The report remained the same as that presented at the previous meeting apart from the addition made by one of the Members.

The Chairperson requested the Secretary to go through the Conclusions again. There were no Recommendations.

The Secretary stated that report concluded that there was an improved global economic outlook but that risks remained. The Committee welcomed the Youth Employment Scheme as well as the support given to youth-owned or managed businesses. Corruption and state capture remained a concern to the Committee. The unstable electricity supply was a significant concern which could compromise economic development. The Committee noted that despite significant public investment, private investment lagged behind. Financial constraints was a real concern. Those factors could slow down the domestic economic recovery. The Committee encouraged the dtic to persist in its interventions as mandated by the Economic Reconstruction and Recovery Plan and to consider ways to reach businesses in rural provinces. The Committee welcomed investment by a number of companies, including firms within the poultry industry. It welcomed the social compact between government, business and organised labour on the various master plans.

Mr Mbuyane stated that Members had consulted with their parties and he proposed that the report be accepted.

Ms Yako reserved the right of the EFF to comment on the Bill.

Ms Hermans seconded the adoption of the report as tabled.

The Chairperson noted that the Report was accepted by the Committee and adopted with the reservation of the EFF.

Closing remarks
The Chairperson thanked Members for their participation.

The meeting was adjourned.