Copyright & Performers’ Protection Amendment Bills: amendments that require House permission & amendments to be advertised for public comment

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Trade, Industry and Competition

16 November 2021
Chairperson: Mr D Nkosi (ANC)
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Meeting Summary

Timelines for Addressing the Remitted Bills (Awaited)
Presentation to the Portfolio Committee on Trade and Industry: Proposed Amendments - dtic (Internal Document)

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 met on a virtual platform for a briefing which proposed amendments to the remitted Bills, the Copyright and the Performers’ Protection Amendment Bills, for which permission was required from the National Assembly as the possible amendments ranged wider than the original scope of the Bill. In addition, the Department and the Senior Legal Advisor in Parliament advised Members on proposed Amendments arising from the public engagement that, should the Committee approve, would have to be advertised for public comment.

Parliamentary permission was required to propose changes to the definition of “broadcast” in order to remove the word “wire” and that to ensure that computer programmes be given digital rights. There was a proposal to place limitations on the rights to copying material, reserving that right to works owned by, i.e. bought by or gifted to, the person making the copy. The Committee was informed that it could also consider making the Bills fully compliant with the Marrakesh Treaty in respect of people with disabilities and to provide a full definition of accessible format copy for use by people with disabilities.

Members asked for clarity as to what was meant by “personal copies” and it being necessary to get permission as in section 12(1). What was the difference between personal copies and “lawfully acquired” copies? Was the intention to go back to where members of the public had to get permission to make copies of works? Members also asked about the custodian of indigenous knowledge. Who held the rights to that kind of knowledge? To what extent would the rights holder or institution that held the custodianship be part of the value chain equation in terms of the beneficiation? Members asked if any wired broadcasting was currently taking place in the country.

The Department and the Senior Legal Advisor briefed the Committee on concerns by the public that could be addressed via amendments to the Bills. Those concerns fell within the scope of the Bills and the only requirement was that the Committee advertise amendments that it wished to make.

The proposals for amendment included the limitation of ephemeral rights allowed to broadcasters from six months to one month; adding the three step test, as per the Berne Convention, to ensure the use of copyright had limits and authors were not exploited when it comes to exceptions; correcting the definition of Technological Protection Measure which currently referred to technologies that prevented or restricted infringement, as opposed to being designed to have that effect. Translation exemptions could be extended to include “language and culture”. The Legal Advisor added other possible amendments that were more technical in nature.

There was no further discussion as Members decided that the possible amendments had to be put to their respective caucuses before further discussion could take place. The amendments would then be discussed at the end of the week.

The Committee agreed on a proposed timeline for the processing of the Bills as well as its Committee Programme.


Meeting report

Opening remarks
The Chairperson welcomed Members and indicated that the two items on the agenda were the deliberations on the Remitted Bills and the draft Committee Programme. The Committee needed to make a decision on the way forward in respect of processing of the Bills, to consider clauses that might require approval from the House and to consider those clauses that would require advertising for public comment.

Process proposed by Secretariat
The Secretary proposed a timeline for the processing of the Bills and presented a document containing details of the proposed timeline. He suggested that on 16,17 and 19 November 2021, the Committee could consider matters that might require permission from the National Assembly in order for those amendments  to proceed. On 24 and 30 November 2021, the Committee could determine specific clauses for advertisement and consider the wording for the clauses to be advertised. On 1 December 2021, Members could finalise the wording for the advertisements and thereafter continue deliberations of other clauses, and complete that process on 2 December 2021.

Ms Y Yako (EFF) approved the proposal.

Ms J Hermans (ANC) seconded the proposal to adopt the timelines as tabled.

Mr S Mbuyane agreed with the proposed process.

The Chairperson noted that the Committee would proceed as per the proposals.

Presentation on clauses requiring House Permission and Advertisement
Adv Charmaine van der Merwe, Senior Legal Advisor, CLSO, proposed that the dtic take the lead in the matter relating to submissions to the House of Assembly as those were new, policy-related matters. She suggested that the Committee go through clause by clause so that where there was agreement on a principle those requests could be forwarded to the House.

The Chairperson concurred with Adv van der Merwe’s proposal.

Ms Hermans requested that all proposed amendments be taken to the caucuses of the parties and that the Committee consider the amendments after those consultations had taken place.

Ms Yako agreed.

Amendments that require House Permission
Dr Evelyn Masotja, DDG: Consumer and Corporate Regulation Division (CCRD), dtic, made the presentation.

Definition of “broadcast:” the word “wire” was not compatible with international treaties. The thinking in the earlier version of the Bill was  that the option of wire should be retained together with wireless and  the dtic had taken a developmental approach regarding the treaties. However, in response to the recent public input on the alignment of the Bill with international treaties, the dtic now recommended deletion of the word “wire” – the definition would then be in accordance with international treaties.

Computer Programmes: it was proposed that all rights in the Copyright Amendment Bill be extended to computer programmes, i.e. giving digital rights to such programmes. Computer programmes, including published editions, would be deemed literary works as per the Berne Convention.

Personal copies: making of personal copies were exceptions provided for in section 12(1)(i) of the Bill. There was concern that the rights of the public were too broad and had to be more restrictive measures. The balancing act between copyright owners and users would be achieved if there were a stipulation that only lawfully obtained copies could be copied. A definition of “lawfully acquired” would also be included as an Amendment to the Bill.

Persons with a disability: Input stated that the definition was not fully compliant with the Marrakesh Treaty.  Dr Masotja explained that the dtic had gone beyond the definition in the Marrakesh Treaty to allow for a wider range of people with disabilities to benefit. However, additional wording from the Marrakesh Treaty could be added to section 19D. The proposed amendment would also address the full definition of accessible format copy.

Authorised Entity: referred to the accessible format copies required to cater for the needs of the persons with disabilities. Public submissions supported the amendment in overwhelming numbers. The inclusion of “authorised entity”, e.g. societies for specific disabilities in the definitions and the relevant subsections could be amended in the Bill, but regulations would have to follow.

Adv van der Merwe reminded Members that the amendments discussed by Dr Masotja were those that had to be presented to the National Assembly for approval.

The Chairperson requested that all amendments that had to be presented to the House should be presented at the same time.

After a brief discussion about the procedure to be followed, the Committee decided that questions of clarity be raised at that point as all the possible amendments that would require House approval had been raised by Dr Masotja.

Mr Mbuyane asked for clarity as to what was meant by “personal copies” and it being necessary to get permission as in section 12(1). What was the difference between personal copies and “lawfully acquired” copies? Was the intention to go back to where members of the public had to get permission to make copies of works?

Dr Masotja explained that it was a principled position and the exceptions had to be used in a way that was fair; fairness was essential. In the submissions, members of the public had suggested that by adding the words “lawfully acquired”, only personal copies could be copied. Unless that was done, that exception had the potential to be abused and people could make copies of material that had not been legally acquired but borrowed or rented and was not actually the personal copy belonging to the person who wished to make copies. ‘Lawfully acquired’ restricted copying to the extent that one must own the original work that one wished to copy, i.e. one must have purchase or been given the work. By defining lawfully acquired copies, it would be very clear that borrowed works could not be copied. That would create a balance between the author and the public and would be fair to both the copyright holder and the public.

Mr Mbuyane stated that the response raised more issues. He asked if the point tried to address the fact that the author should be paid his copyright fees or whether it would end up making the matter more confusing. He took the point about owning a copy, but how did a rented or borrowed a copy address the matter of royalties? The original Bill had attempted to deal with the issue of royalties so that authors got what was due to them. How would the amendment help that matter?

Mr Z Burns-Ncamashe (ANC) stated that in indigenous communities, there were proverbs and idioms that characterised particular situations and that had been there since time immemorial. He gave the example of an artist using indigenous idiomatic expressions and how that work, when put together, was considered an original work of that artist, even though  it was derived from existing knowledge that was part of the community heritage. Who was the custodian of that indigenous knowledge? Who held the rights to that kind of knowledge? Who was the custodian of that knowledge? Once that understanding had been determined, to what extent would the rights holder or institution that held the custodianship be part of the value chain equation in terms of the beneficiation?

Dr Masotja responded to Mr Mbuyane, explaining that the dtic was viewing the proposed amendment favourably because, even at the time of originally drafting the Bill, there had been concerns that there was not a balance in the Bill between the rights of the copyright holders and the rights of the public. ‘Lawfully acquired’ meant that the person had purchased the copy and would be copying from a work that he or she owned, while the copyright holder had benefitted from that purchase in terms of copyright royalties. That would ensure a better balance between the copyright holder and the public. It was a newly proposed amendment arising from the public participation. The dtic agreed that the Copyright Bill was more favourable towards the public and copying only lawfully owned works would bring about a better balance in the Bill. Rights of the public were not being removed but it did ensure that members of the public would not copy works that they had stolen or borrowed.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

She pointed out that if the proposed amendment were advertised for public comment, then the Committee  would get more views on how that particular provision could be drafted. The intention of the provision was to provide additional clarity.

Dr Masotja noted that Mr Burns-Ncamashe’s question had been responded to by Adv van der Merwe previously. The point he was making that certain aspects of one’s work could originate in an indigenous work but the copyright would not go back to those original communities. The Copyright Amendment Bill talked to some aspects of traditional knowledge but the Intellectual Property Act, which was passed in 2013, actually addressed the various areas of indigenous rights, especially the rights to knowledge owned by a community but had not been implemented as yet and not yet come into effect. Mr Burns-Ncamashe’s point would not be answered in the Copyright Amendment Bill, but it was a very important point. She noted that it was a global debate around traditional communities and on the exploitation of their economic rights. Unfortunately, that point could not be answered until the Intellectual Property Act was implemented.

The Chairperson suggested that Adv van der Merwe provide some guidance on the way forward.

Ms Hermans stated that Members of the Committee were not communication experts. She asked if any wired broadcasting was taking place at the moment. The Committee needed to know that before it proceeded with the amendment

She also asked that parties be given time to look at the proposals made that day. She suggested that the Remitted Bills only be considered on Friday 19 November 2021. The Committee could consider only the Budget Review & Recommendations Reports (BRRR) the following day.

Mr Mbuyane agreed with Ms Hermans that the matter should be discussed in party study groups for greater clarity before he asked more questions. He would want to discuss the point about whether something was pirated or lawfully acquired. He did not believe that one should just take out the word “wired” as not everyone had Fourth Industrial Revolution connectivity.

Mr Burns-Ncamashe said that Parliament’s Constitutional and Legal Advisory Services Office, if that was the right division, had to look into the legislation that had a symbiotic relationship, especially where they needed to be made into implementable instruments because until they were implemented, there was more exploitation, particularly of the indigenous communities. He agreed that the parties needed to come up with clear positions about all pieces of legislation that had a direct bearing on the livelihoods of poor parties, as far as it was in the purview of the Committee.

The Chairperson stated that Dr Masotja should move ahead and pick up on the other issues so that Members could understand what needed to be clarified. Dr Masotja should move on to page 12 of the presentation.

The Secretary reminded the Chairperson that Ms Hermans had proposed that the Bills be taken to their caucuses and that the matter be continued on Friday. He suggested that Dr Masotja could present the matters but that they not be discussed in that meeting. He added that Adv van der Merwe had a few points that she wished to make.

Dr Masotja responded to the query from Ms Hermans about wire broadcasting. She agreed with Mr Mbuyane that the word “wired” had been in the Act previously so those facilities were still being used. She pointed out that the dtic had retained ‘wire” as a precautionary measure in case there were wired broadcasts. However, that wording was in conflict with the international treaties. Public opinion was that the amendment should be made to ensure strict compliance with the treaties and that was the only reason that dtic was considering the review. She did not know if wire was in use when it came to broadcasting in SA and would have to undertake a thorough review of the industry and to check with experts regarding wired broadcasts. She was aware that one or two other countries had included ‘wire’ in their legislation, so it would not have been unique to SA’s legislation but she stressed that the driving force in the matter had been an adherence to the international treaties.

Presentation by dtic on proposed amendments to be advertised for public comment
Dr Masotja presented the amendments proposed by the dtic which would require advertisement as they introduced new concepts into the Bill.

Section 12B(1)(c ) -Reproduction of a work by a reference to musical rights: Ephemeral rights were part of the exceptions and allowed a broadcaster have a copy of a sound recording for six months, although it could not be distributed. During live broadcasts in that time, the broadcaster could use the music without paying royalties. The concern was that six months was a long time and submissions had recommended the use of the Canadian Copyright Act section 38 which looked at how a recording should be kept, how it should be destroyed and how it should be archived and royalty rights. The proposal was that a broadcaster could keep music for 30 days, after which royalties became applicable.

Section 12C - Adding the three step test: the test was a Berne Convention standard that defended the rights of authors but balanced that against the right of society by stipulating national exceptions and limitations. Dr Masotja stressed that the three step test must not be confused with either the fair use or fair dealing regimes of exceptions. The test serves to ensure the use of copyright had limits and authors were not exploited when it comes to exceptions.

Section 12D(1): Education exception: it affected all sub-sections relating to education and the dtic was considering using the three step test in that sub-section. The public submitted that the subsection was very badly worded and contains mixed, and incorrect use of terminology, which made its interpretation uncertain and difficult.

Section 1(i): Definition of Technological Protection Measure (TPM): the world had moved on since the previous Act of 1978 and the Amendment as it stood still did not provide sufficient protection. The definition of “technological protection measure” was problematic because it referred to technologies that prevented or restricted infringement, as opposed to being designed to have that effect. The treaties required that countries ensure adequate legal protection and legal remedy measures to enforce the protection. However, the TPMs should not be so tight that they defeated the objective of innovation, etc. The dtic recommended that the definition of TPM be amended and that the word ‘products’ also be included. It was recommended that subsection (b) in the definition be removed.

TPM Circumvention Device: a suggestion that ‘services and devices’ should be included in the wording was also consistent with the European Union Directive regarding TPM.

TPM sanctions: sanctions had not been included in sections 28O and 28R and should be included in section 27(5a). Without sanctions, the Bill did not adequately protect TPM rights. The international treaties required sanctions. The dtic agreed and recommended that sanctions be included.

Section 12B(1)(f) Translation exceptions: there was a belief that translation rights were too narrow. It was recommended that, as per the Bill of Rights, the words “ language and culture” be added to translation exceptions.

Section 1(j) Definition of “producer”: the definition should be clarified to ensure that “producer” covers both natural and legal persons in line with international treaties. However, as explained by Dr Masotja, in SA law the word “person” included legal persons. The dtic, therefore, did not recommend that such an amendment be incorporated.

Amendments to Copyright Amendment Bill and the Performers Protection Amendment Bill
Adv van der Merwe, Senior Legal Advisor, indicated that her presentation showed all amendments that would have to be advertised for public comment. The presentation included matters that she had presented previously.  It also included amendments discussed by Dr Masotja and so she would not go through her entire presentation as she did not wish to repeat what the dtic had already included. She would focus on amendments not raised by Dr Masotja.

Copyright AB, B13B – 2017
Clause 13: section 12A and other the other exceptions read together.
Public comments had indicated duplications in the exceptions which were stated in section 12A and repeated in section 12. Adv van der Merwe had identified all the duplications:
-Research, private study, personal use: The whole of S12A(a)(i) to be deleted. It was covered in 12B(1)(i) and 12B(2) in respect of personal use, and 12D in respect of research and private study.
-Scholarship, teaching and education: The whole of S12A(a)(iv) to be deleted as it was covered in 12D.
- Libraries, archives and museums: The whole of S12A(a)(vi) to be deleted as it was covered in S19C.
- 12B(1)(b) to be moved to 12D as it was education specific.
-12B(1)(e)(i) to be deleted – sufficiently provided for in 12A.

Clause 13 section 12A: The moral rights of the author: “that the source shall be mentioned, as well as the name of the author if it appears on the work” and the words “As far as is practicable” be removed. Amendments would be made to various sections.

Clause 13 section 12A -  fair use criteria was included, but did not apply to the parallel set of specific exceptions in section 12B to 12D. Adv van der Merwe proposed an amendment that be sent out for public comment. Her draft wording was: “(d) All exceptions authorized by this Act in respect of a work or the performance of that work are subject to the principle of fair use, determined by the factors contemplated in paragraph (b).”

Clause 13 – Section 12C and 12D: Adv van der Merwe reminded Members of the lay-out error that had to be corrected: “as long as there is no independent, economic significance to these acts’ applied to both (a) and (b). The dtic had also recommended adding the three step test.

Clause 20 – Section 19C and 19D:
19C(4) ended with “but may not permit a user to make a copy or recording of the work for commercial purposes.” As subsection (1) was applicable to all subsections in 19C, the words were superfluous in (4) and could be deleted.
19D(3): inclusion of a reference to an authorized entity and a new definition was proposed. She recommended that the addition also be made to 19D(2).

Clause 29 – Section 28O and 28P:
An amendment was needed as the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002) had since been replaced by the Cybercrimes Act, 2020 (Act No. 19 of 2020).

Clause 33 – Section 39:
39(cH) cross-referred to Section 28B, but it should be 28P, so Adv van der Merwe recommended an amendment to correct the cross reference.

Performers Protection AB, B24B-2016
Clause 6 – Section 8D:
Technical inclusion: Add “into” on page 9, line 5 after “entered”.

Adv van der Merwe reminded Members that all other proposed amendments had been dealt with by Dr Masotja.

There being no discussion, the Chairperson proposed that the presentations be accepted as recommendations to the Committee.

Mr M Cuthbert (DA) requested that the agreement that Members would be able to refer to their caucuses be provided in writing.

The Chairperson agreed to do so.

The Secretary noted that following the proposal that the parties take the Remitted Bills to their caucuses and continue on Friday 19 November 2021. The Committee would only deal with the BRRR the following day.

Presentation of Committee Programme
The presentation of Steel and Metal Fabrication Plan was moved to 7 December 2021 as the Minister was accompanying the President to greet an international delegation on the planned day. It was noted that the NRCS did not have its Annual Report ready and so the presentation by the NRCS was postponed until the following quarter.

The programme was adopted as amended.

Closing remarks
The Secretary indicated that the BRRR report would be circulated to Members that afternoon.

The Chairperson thanked Members for their participation.

The meeting was adjourned.


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