Copyright Amendment Bill: DTIC & Parliamentary Legal Advisor response to public submissions, with Deputy Minister

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Trade, Industry and Competition

06 May 2022
Chairperson: Ms J Hermans (ANC)
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Meeting Summary

Video

Stakeholder Comments

Proposed Amendments: Copyright Amendment Bill

The Portfolio Committee on Trade and Industry met on a virtual platform to receive a briefing from the Department of Trade, Industry and Competition and the parliamentary Office on Constitutional and Legal Services on their responses to public submissions on the Copyright Amendment Bill.

Both the Department and the Senior Legal Advisor provided lengthy and detailed discussions on the amendments, the comments received from the public as well as their responses to the input. The Department stated unequivocally that all stakeholder comments were noted and taken into consideration. The Department explained that it had to adhere to the limitations placed on the Committee in terms of Joint Parliamentary Rule 203 which determined procedures to be followed regarding the reservations raised by the President. Some stakeholders had commented on the entire Bill and did not restrict themselves to the particular sections that had been advertised. Those broader issues would have to be considered during the National Council of Provinces process as the Bill had been retagged as a section 76 Bill.  The Department went through all comments from stakeholders relating to the advertised clauses in a lengthy PowerPoint presentation and provided its response to each one. The Department recommended that the Committee consider adopting several of the amendments but recommended changes to several advertised amendments and rejected a few amendments that public comment suggested would be confusing or detrimental to the concepts contained in the Bill. The Legal Advisor provided a legal position on the comments received but noted that her unit did not advise on policy.

Members declared that there was a lot to digest as the presentations had been exhaustive and very detailed. It was also noted that the Legal Advisor had presented options that had not previously been available to the Committee. Members required time to consider the presentations. A decision was taken to take the contents of the presentations to their caucuses and to raise questions and hold discussions at a future meeting.

Meeting report

Opening Remarks
The Chairperson reminded the meeting that the Portfolio Committee had advertised for submissions on the amendments made to the Copyright Amendment Bill following the remittal of the Bill by the President. The amendments were advertised as they went beyond the initial changes proposed by the President. That was the second opportunity for members of the public to comment on the Bill following its remittance by the President. The purpose of today’s meeting was to receive the response of the Department of Trade, Industry and Competition (dtic) and of Adv van der Merwe from the parliamentary Office on Constitutional and Legal Services to the public comments.

She pointed out that, in dealing with the Bills, the Committee was guided by Joint Rule 203 which determined procedures to be followed in respect of a Bill remitted by the President and sent to an Assembly Committee. Both the Copyright Amendment Bill and the Performers Protection Amendment Bill had been re-tagged as section 76 Bills by the Joint Tagging Mechanism following the presidential concerns. That meant that once the Bills were received by the National Council of Provinces (NCOP), the Bills, in their totality, would be opened for public comment. Matters that fell outside the President’s remit could not be addressed by the Portfolio Committee but could be addressed in that process.

Introductory remarks by the Deputy Minister of Trade, Industry and Competition
Deputy Minister Fikile Majola informed the meeting that the presentation would respond to the submissions received from the public on the Copyright Amendment Bill. He noted that more than 50 submissions had been received, so it would be a fairly lengthy presentation, which would be made by Dr Evelyn Masotja, DDG, Consumer and Corporate Regulations. He handed over to Dr Masotja immediately.

Presentation by DTIC
Dr Masotja acknowledged the contribution of the late Mr MacDonald Netshitenzhe, previous Chief Director and Acting Deputy Director-General at dtic before her appointment, to the work on the Copyright and the Performers Protection Bills. Mr Netshitenzhe passed away in December 2021.

Dr Masotja stated unequivocally that all stakeholder comments were noted by the dtic and taken into consideration. She explained that the dtic had to adhere to the limitations placed on the Committee regarding the reservations raised by the President. Some stakeholders had commented on the entire Bill and did not restrict themselves to the particular sections that had been advertised. She reminded the meeting that those broader issues would have to be considered during the NCOP process.

Dr Masotja went through all comments from stakeholders relating to the advertised clauses in her PowerPoint presentation and provided the Department’s response. (The report presents the responses in the order as presented by Dr Masotja.)

Advertised Clauses and Responses

Clause 1: Definitions
Accessible format copy: The rationale for the amendment was that the definition must be compliant with the Marrakesh Treaty and include the other wording that sets the standard on the definition. The public objected to the use of the word “including” but dtic explained that the wording was taken from the Marrakesh Treaty. The amendment was, however, wider than the Marrakesh Treaty definition or phrase as it provided more rights for persons with disabilities.

Authorized entity: an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access.
The public commented that the definition was open to abuse but the dtic declared that it was the language used in the Treaty and therefore recommended the amendment to the Committee.
Recommended.

Section 19D(1)
The amendment in 19D(1) removed ‘prescribed’ in order to include ‘authorized entity’. The public submitted that the proposed deletion of the phase “… as may be prescribed and …” might result in unintended consequences for works that have already been transformed into an accessible format. The dtic agreed that “prescribed should be retained with “authorized entity”. A language amendment was accepted by dtic, i.e.: amend ‘any person that serves’ to ‘any person who serves’.
To be amended.

Section 19D(3)
The reference to authorized entity was included in section 19D(2) and 19D(3), to align to the Marrakesh Treaty. Public comment suggested that proposed wording was not aligned with that of the Marrakesh Treaty and it imposed additional burdens/obligations upon people with disabilities. The dtic recommended that the wording be amended to reflect the exact language in the Treaty. The additional burden of proof required as a result of the amendment was noted.
To be amended.

Section 19D(4)
The amendment was intended to ensure alignment with the Marrakesh Treaty. The public stated that section D(4)(b) was problematic and recommended that the proposed wording be deleted. The dtic concurred.
Amendment rejected.

Clause 33, Section 39(cl)
New sub-section 39(cl)(2) The Minister must make regulations providing for processes and formalities related to the authorization, or recognition, by the government of entities that provide education, instructional training, adaptive reading or information access to persons with a disability on a non -profit basis.
The amendment was intended to provide for the regulations of authorised entities and a correction of a cross reference in cH. Public submissions asked for the actual processes to be described but dtic stood by the amendment as the regulations would ensure that the processes were provided for.
Recommended with amendment to numbering: 39(Cl).

Clause 1: Definitions
Broadcast: in international treaties, including the Rome Convention, broadcast is defined as a technical term referring specifically to wireless, over the air, one-to-many transmissions. Many concerns were raised about removing the reference to “wire” from the Bill. The dtic recommended that wire be retained in the Bill due to unintended consequences and concerns raised by the public. The alignment of the definition of broadcast had been included in the Performers’ Protection Amendment Bill.
Amendment rejected.

Clause 1: Definitions
Lawfully acquired: the amendment was intended to address concerns that provisions in the Bill were too broad and subject to exploitation and might lead to deprivation of property. The definition attempted to describe what qualified as a lawfully obtained copy. The public pointed out that the definition was flawed and contained unintended consequences, it limited other exceptions and, furthermore, the UK High Court had dismissed the regulations introducing the exception in UK law. The dtic recommended that the definition of ‘lawfully acquired’ be removed from the Bill.
Amendment rejected.

Paragraph 12B(1)(c)
Ephemeral exception: Ephemeral refers to temporary use. The exception is currently in section 12(5) of the Copyright Act: a broadcaster is allowed to have a copy of the work, such as sound recordings, for a limited period of six months but not to distribute it to any person. The Act specifies how that reproduction could be stored. The proposed amendments were from the Canadian Copyright Act which makes allowance for 30 days instead of 6 months.
Stakeholders raised concerns about the unintended consequences of this provision as well as the legal and practical application of some of the text included in the provision. The dtic responded that reference to the correct name of the ephemeral recording exception was noted and recommended that that amendment be removed from the Bill and the current amendment be retained.
Amendment rejected.

Section 12B(1)(f)
Translations: The translation exception is provided in the current Act but the Amendment broadens the rights and allows for the translation of such work by a person giving or receiving instruction: Provided that such translation is (i)        done for non-commercial purposes;  (ii) used for personal, educational, teaching, judicial proceedings, research, for the furtherance of language and culture, or professional advice purposes only: Provided that such use shall be compatible with fair practice; or (iii) communicated to the public for non-commercial purposes.
Despite objections from publishers, the dtic recommended that the amendment be retained as advertised but that the ‘or’ is removed so that each provision can be read independently.
Recommended with minor change.

Clause 1: Definitions
Technological Protection Measure: The amendment defines ‘technological protection measure’ as ‘any process, treatment, mechanism, technology, device, product, system or component that in the normal course of its operation is designed to prevent or restrict the infringement of copyright in a work.” It excluded sub-section (b) in the Bill.
Public comments suggested that the definition remained problematic and did not provide adequate legal protection. Several commentators agreed with the deletion of sub-section (b). The dtic confirmed that deletion in its recommendation but also recommended section (a) be retained as advertised because it believed that there were other provisions that supported the exceptions and access to the exceptions by the
public.
Recommended.

Clause 1: Definitions
Technological Protection Measure Circumvention Device: The amendment expanded the notion of such devices: “ means a device or service—(a) primarily designed, produced or adapted for purposes of enabling or facilitating the circumvention of a technological protection measure; (b) promoted, advertised or marketed for the purpose of circumvention of a technological protection measure; or (c) with a limited commercially significant purpose or use other than to circumvent a technological protection measure; ”;

The public objection was minor. The dtic recommended retention of the advertised amendment as it strengthened the Bills and was similar to the EU Directive and other international copyright laws.
Recommended.

Clause 29: Sections 28O, 28P and 28S
The amendments are consequential to the amendments to section 27 providing for offences. The amendment proposed that in sections O and S, the verb “knows” be followed by the phrase “or has reason to believe”. In section 28P. (1)”[ For the purposes of this Act and of section 86 of the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002)],” was added.

Public commentary was extensive and varied but a key concern was the high and subjective standard that would be difficult to prove, especially if sections O and P were amended as proposed. The dtic recommended that sections O and S be retained without the proposed amendment but that the reference to ‘performer’ be removed (if that did not constitute the prohibited substantive change to the Bill) as it would ensure focus on the copyright owner. The amendment to section 28P should remain.
Rejected: Amendment to section 28O and 28S, except for removal of “performer”.
Recommended: Amendment to section 28P.

Section 11 (11A and 11B)
The Copyright Amendment Bill introduces the new exclusive rights of ‘communication to the public’, ‘making available’ and ‘distribution’ to literary, musical and artistic works and cinematograph films and sound recordings in Sections 6, 7, 8 and 9, but there wer no corresponding amendments extending those rights to published editions in Section 11A or to computer programmes in Section 11B. That was the rationale for the advertised amendments.
Public comments were largely technical and the dtic recommended the amendments in the light of the fact that they were in line with international copyright treaties.
Recommended

Section 27 (5A, B, C)
Sanctions: a new clause was added in respect of digital rights:“(5A) Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright and for commercial purposes—(a) communicates the work to the public by wire or wireless means; and (b) makes the work available to the public by wire or wireless means, so that any member of the public may access the work from a place and at a time chosen by that person, which they know to be infringing copyright in the work, shall be guilty of an offence.
The sanctions for Technological Protection Measures were amended in section 27 (5B) and 5(C).

Public comments suggested that the fines imposed on juristic persons in that, and other paragraphs, were draconian, especially as they were minimum penalties. While strong copyright protection was to be welcomed, a balance needed to be maintained. The dtic recommended that the wording be retained in 5(B) and 5(C), and “for commercial purposes” be removed in section 27(5A).
Recommended: Amendments to section 27 5(A) but without the words “for commercial purposes”.
Recommended: Amendments to section 27 5(B) and 5(C).

Section 12A
Deletion of duplications (examples of fair use): The amendment was made because the exceptions in 12B-D need not be repeated in 12A.
Following concerns raised by the public that the specific references in 12(A) were substantive, the dtic agreed to recommend that all the uses be retained, i.e., personal copies, teaching, scholarship, education and research and library uses. The use of ‘such as’ in section 12A widened the scope to include other uses.

Sections 12B and 12D
Sections 12B and 12C were amended primarily to ensure the inclusion of “fair practice” throughout the Bill.
A number of stakeholders recommended fair practice in the Bill but recommended the removal of “ fair practice” in 12D(1) as it was duplicative. The dtic agreed and made the same recommendations to the Committee.
Recommended.
Recommended additionally: amendment to 12D(1).

Section 12A-12D: Section 12A(d)
The amendment proposed a layering of restrictions. To do that a paragraph was added to section 12A (the fair use clause) that would make the factors in 12A(d) applicable to all specific exceptions, or to specific exceptions, e.g. 12A to 12D.
Submissions suggested that 12A(d ) appeared duplicative and potentially harmful The dtic recommended that 12A(d) be removed because of the unintended consequences highlighted by the public submissions.
Amendment rejected.

Clause 13: Section 12A(c), 12B, 12D and 19
The amendment related to moral rights in respect of exceptions, with reference to the name of the author.
Section 12A(c) was advertised as: “(c) For the purposes of paragraphs (a) and (b) the source, [and] as well as the name of the author shall be mentioned, if it appears on the work.” Sections 12B, 12D and 19 also added the words “if it appears on the work” in the relevant positions in the clauses.

The public raised a concern about the potential conflict between 12A(c) and the new amendment. Section 12A (c) says’ for the purposes of (a) and (b) the source and the name of the author shall be mentioned.’ The dtic recommended that the Committee accept the amendments and that the words “if it appears on the work” be added to section 12A(c ) to align with the amendment.
Recommended.
Recommended additionally: Amendment to 12A(c).

Sections 12C and 12D
Adding the three step test.
Public comments recommended deleting the three step test in 12C and 12D. Adding the three step test with other tests, e.g., fair practice, was duplicative made section 12D impracticable. The dtic recommended that the three step test be removed from 12C and 12D, explaining that the three step test, as a principle and guideline, did not have to be incorporated in the Bill as per best practices of its application and could have unintended consequences. Furthermore, ‘flowing from the copyright in that work’ in sections 12C and 12D had previously been added in response to public concerns about the inclusion of the three step test. If the three step test were excluded by the Committee, those words should be excluded from 12C and 12D.
Recommended.
Recommended additionally: Exclude ‘flowing from the copyright in that work’ from 12C and 12D.

Section 19C(4)
The rationale for the amendment was the duplication exception of ‘may not be allowed for commercial purposes’ as that was covered by subsection (1). However, if the whole phrase, ‘may not permit a user to make a copy or recording of the work for commercial purpose’ were removed, a copy for non-commercial purposes might be allowed if done under Section 12D(1). If retained, it would be a prohibition in respect of both commercial and non-commercial purposes and changed the content entirely. The advertised amendment of section 19C(4) ended: ‘may not permit a user to make a copy or recording of the work.’ The words ‘for commercial purpose’ were deleted.

Submissions stated that the removal of the words ‘for commercial purpose’ gave the section a totally different meaning. The effect was to create an unanticipated prohibition on copying in a subsection that was not intended to address copying and prevented a personal or private copy from being made at all, which was unfair and impractical. The dtic recommended that the words ‘for commercial purposes’ be retained. The subsection formed part of the President’s specific reservations. When reading 19C(1) together with (4) there was indeed a duplication of “for commercial purposes’.
Amendment rejected, but with cautions.

In conclusion, Dr Masotja added a final comment on issues raised but that could not be addressed under the conditions of Rule 203. Issues raised included: the use of Standard SA/UK English instead of US English; reference to ‘government’ should change to ‘relevant government department’ or ‘relevant government entity responsible for’; the need for an impact assessment; the need to couple the new amendments with a very robust and clear statutory damages framework. Other submissions noted that some amendments went beyond the President’s reservations.

After a short break, the Chairperson called on the Senior Legal Advisor to present a legal response to the public submissions.

Presentation by the Office of Constitutional and Legal Services
Adv Charmaine van der Merwe, Senior Legal Advisor, Office of Constitutional and Legal Services (OCLS), noted that some submissions suggested that the Committee had opened the Bill to wider comment than the President’s reservations. She explained that the requirements from the President had required public participation and that it seemed broader because it addressed concerns about lack of public participation and not just the President’s concerns about the Bill itself.

Adv van der Merwe explained, that in the interests of time, she would not be repeating public comments or discussions where an issue had been covered by the dtic. She firstly addressed some of the concerns on the process as well as general concerns before addressing the specified issues.

Recommendations
Clause 1 – definition of Broadcast
Proposed wording:” ‘broadcast’ means—
(a)transmission, partially or wholly, by wireless means for public reception of sounds or of images or of images and sounds or of the representations thereof;
(b)transmission, partially or wholly, by satellite; or           
(c)transmission, partially or wholly, of encrypted signals if the means for decrypting are provided to the public by the broadcasting organisation or with its consent
;”.
Recommendation:
Option 1: The existing definitions in the Copyright and Performers’ Protection Acts to be retained until the review of the definition in the ECA has been concluded (i.e. retain “wire” as well);
Option 2: Use the definition of ECA in both Acts or a definition proposed by SAMRO (see notes page) (either definition will have to be advertised).

New clause – amending sections 11A & 11B
Proposed amendments:
11A. Nature of copyright in published editions \
Copyright in a published edition vests the exclusive right to make or to authorize the doing of any of the following acts in the Republic:
(a)[making] Making of a reproduction of the edition in any manner;
(b)communicating the work to the public by wire or wireless means;
(c)making the work available to the public by wire or wireless means, so that any member of the public may access the work from a place and at a time chosen by that person; and
(d)distributing the original or a copy of the work to the public.”.


11B. Nature of copyright in computer programs.
Copyright in a computer program vests the exclusive right to do or authorize the doing of any of the following acts in the Republic:
(dA)communicating the work to the public by wire or wireless means;
(dB)making the work available to the public by wire or wireless means, so that any member of the public may access the work from a place and at a time chosen by that person;
(dC) distributing the original or a copy of the work to the public;”.

Recommendation: The dtic to confirm correct wording.

Clause 13 (section 12A) - Deletion of duplications
Clause 12A(a) – delete (i);(iv);(vi).
Recommendation: The intention with the deletions was to streamline the Bill. However, if the duplications do not cause harm, and in fact serve as useful examples complimenting specific exceptions, we recommend the paragraphs are not deleted but are retained.

Clause 13 (section 12A(c), 12B, 12D, 19D)
The above sections were changed to address moral rights: the words “to the extent it is practicable” were removed.
Wording proposed in the advertised amendments:
12A(c): “(c) For the purposes of paragraphs (a) and (b) the source, [and] as well as the name of the author shall be mentioned, if it appears on the work.”
12B(1) “Copyright in a work shall not be infringed by any of the following acts:
 (a)(ii) Any quotation: Provided that …[to the extent that it is practicable,] the source and the name of the author, if it appears on [or in] the work, shall be mentioned in the quotation;”

(b) (moved to 12D): “(b) (9) Copyright in a work shall not be infringed by any illustration in a publication, broadcast, sound or visual record for the purpose of teaching: Provided that such use shall [not exceed the extent justified by the purpose] be compatible with fair practice: Provided further that[, to the extent that it is practicable,] the source and the name of the author, if it appears on [or in] the work, shall be mentioned in the act of teaching or in the illustration in question;
(e)(current events): “(e) subject to the obligation to indicate the source and the name of the author [in so far as it is practicable], if it appears on the work—”
12D (Educational and academic activities) “(8) (a) The source of the work reproduced and the name of the author, if it appears on the work,  shall be indicated [as far as is practicable] on all copies contemplated in subsections (1) to (6).’’.

19D (Persons with disability) “(4) The exception created by this section is subject to- (a) the obligation of indicating the source and the name of the author, if it appears on the work, on any accessible format copy [in so far as it is practicable].…”
Recommendation: The Committee should consider retaining “to the extent that it is practicable” in the clauses mentioned above, taking into account the consequences of removing the words. The dtic to advise in respect of adding the phrase to 12A(c).

Clause 13: Layering of restrictions
A. Fair use criteria
New Paragraph: (d)(1) was added to section 12A which has fair use criteria, but that did not apply to the parallel set of specific exceptions in sections 12 B – D and therefore created uncertainty.
Proposed amendment: “(d)The exceptions authorized by this Act in sections 12B, 12C, 12D, 19B and 19C, 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).”.
Recommendation: Legal Services did not recommend inclusion of treaty wording as the intention must be captured - not the actual wording. Three step test was never intended for inclusion in legislation as a restrictive measure, but rather as a guide. The Committee needed to carefully consider multiple layers of requirements in all exceptions. Paragraph 12A(d) should be deleted.

B. Fair practice v extent justified by the purpose
Sections 12B and 12D: The purpose of deleting the words “extent justified by the purpose” was to align the Bill with the treaties.
Recommendation: Although the terms seem to be very similar in nature and considering the test required for each, there seems to be a view that they are not 100% the same. To ensure alignment with the treaties and avoid a possible interpretation not intended, it is recommended that the Committee follow the example of the treaty, i.e. include both terms in respect of quotations and education; and retain “extent justified by the purpose” everywhere else.

Clause 13 : Layering of restrictions
Sections 12C(2) and 12D(1)(b), (c) and (d): adding the three-step test
Recommendation: Do not include treaty wording. The intention should be captured; not the actual wording.
Three step test was never intended for inclusion in legislation as a restrictive measure, but rather as a guide – The three step test typically applies to the way in which governments themselves make laws, rather than in the way they are interpreted. Including the three-step test was seen by some of the public as a guard against the “ravishes of fair use”. If the Committee was concerned about the effects of fair use, that policy direction should be reversed, rather than layering restrictions on exceptions, which would cause uncertainty in law (affecting rule of law) and might result in an Act that was stricter and less balanced than the current Copyright Act.

Paragraph 12B(1)(b) and 12B(2)
Ephemeral exception: A lengthy addition, closely aligned to the Canadian Copyright Act, was proposed to deal with ephemeral exception as it had not been addressed in the original Bill.
Recommendation: The proposed wording from the Canadian Act might not be ideal for inclusion in South African Copyright law without significant adjustments. It was recommended that the wording of the Bill prior to that amendment be retained and that the dtic consider the Canadian Act’s wording for purposes of new policy development and a new Amendment Bill.

Clause 13 Section 12B(1)(e)
The amendment addressed translation of work by a person giving or receiving instruction and added the words ‘for the furtherance of language and culture’. The addition was in response to inputs from the public and was not a material amendment.
Recommendation: No comments / objections were received on the phrase that could be considered.

Clause 13 Section 12B
The amendment related to private / personal copies. A new definition of ‘lawfully acquired’ was proposed, which led to proposed amendments to clause 13, section 12B.
Definition:
 ‘lawfully acquired’ means a copy which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift and does not include a copy which has been borrowed, rented, broadcast or streamed, or a copy, which has been obtained by means of a download enabling no more than temporary access to the copy.’
Recommendations: The Legal Advisor was concerned about the limitation placed on Courts by the definition. Courts must have some leeway to provide common law—and common sense— interpretations that fill the gaps in the statutory text, i.e. to consider factors indicating fairness in each specific case. It was recommended that the definition of “lawfully acquired”, the addition of the phrase to S12B(1)(h) and subsection S12(3)(b) be removed. It implied that copies may only be made from legally obtained works and did not need to be stated.
OR
If the Committee wanted to retain the aspect of lawfulness in the text of the Bill, it was recommended that the definition be excluded in order to avoid unintentionally stifling the hands of the courts on subtle differences and that “lawfully accessed” rather be used in 12B(1)(h) and that subsection S12(3)(b) be removed. 
If the recommendation in respect of section 12A was accepted, i.e. the retention of all examples, the reference to a “different time or with a different device” could be removed.
The Legal Advisor referred the Committee to the recommendation in respect of retaining “to the extent justified by the purpose” under the discussion of layering of restrictions.

Section 12C
A correction of a lay-out error in 12C was recommended.

Clause 20 - section 19C(4)
The amendment proposed the deletion of “for commercial purposes” in section 19C(4).
Recommendation: The whole phrase “…but may not permit a user to make a copy or recording of the work for commercial purposes” be removed; alternatively that the amendment to “for commercial purposes” be retained.

Clause 20 section 19D
The section deals with general exceptions regarding the protection of copyright work for persons with disability. Having added a definition of ‘authorized entity’, the phrase was used in section 19D(1) and subsequently the phrase “as may be prescribed” was deleted.
Recommendation: The phrase “as may be prescribed” was deleted because of the addition of “authorised entity”, but Legal Services agreed that the deletion might have unintended consequences and recommended that the phrase be retained.

Additional amendments were proposed to section19D to address the President’s concerns about compliance with treaties.
“(3)(a)A person with a disability or a person that serves persons with disabilities, including an authorized entity, may, without the authorization of the copyright owner export to or import from another country any legal copy of an accessible format copy of a work referred to in subsection (1), for distribution or to make it available to persons with a disability, as long as such activity is undertaken on a non-profit basis by that person.
(b)A person contemplated in paragraph (a) may only so export or import where such person knows, or has reasonable grounds to believe that the accessible format copy, will only be used to aid persons with a disability.
(4)The exception created by this section is subject to—
(a) the obligation of indicating the source and the name of the author, if it appears on the work, on any accessible format copy; and
(b) use of the accessible format copy exclusively by a person with a disability.”.

Recommendation: The treaty language is worded as a defence to something that seems to have happened already; legislation cannot be worded with an infringement deemed to have happened already. The Bill is setting up the requirements for import, not providing a defence: furthermore, there needs to be an obligation before there can be a breach that requires a defence. The future and past tense cannot be used in one sentence.
Proposed amendment: 19D(3)(b) A person contemplated in paragraph (a) may not export or import an accessible format copy where such person knows, or has reasonable grounds to believe that the accessible format copy will be used for purposes other than to aid persons with a disability.
If there was still discomfort, a clause stating a defence (in the wording of the treaty) may be added.
19D(4)(b) use of the accessible format copy exclusively to aid persons with a disability.
Alternatively, 19D(4)(b) could be deleted as it repeated the implied requirement in (3)(b).

Clause 29
Technological protection measures: the amendment proposed more extensive definitions of ‘technological protection measure’ and ‘technological protection measure circumvention device or service’.
Recommendation: Legal Services was concerned about unintended consequences from the amendments as they could result in exceptions being prevented when they should be allowed for in  normal lawful activities,
It is recommended that the definition of technological protection measures retain the original wording, including retaining paragraph (b); and that “product” be added to paragraph (b).
Legal Services also recommended that definition of technological protection measure circumvention device be amended to read “or service” and not “and service”.
Paragraphs (b) and (c) should be removed.

Offences
Clause 27, Section 27(5A)
“(5A) Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright and for commercial purposes—
(a)communicates the work to the public by wire or wireless means; or
(b)makes the work available to the public by wire or wireless means, so that any member of the public may access the work from a place and at a time chosen by that person, which they know to be infringing copyright in the work, shall be guilty of an offence.

Recommendation: “Any person who at a time when copyright subsists in a work, without the necessary authority and for commercial purposes…”
Whether to remove “for commercial purposes” or not was a policy decision, however, that clause deals with offences, which are serious breaches. Copyright infringement (a civil matter) may be a better fit for prevention of non-commercial uses.
Adv van der Merwe agreed that it could be better to use the phrase currently used in the Act (“for the purposes of trade”) in this clause, but if this were done, it was recommended that the sections where “commercial purposes” appeared, were then also accordingly amended.
Recommended including the element of “knowing to be infringement copies”, to define the offence.
Recommended changing “which they know” to “which such person knows, or should reasonably have known” to be consistent with proposed section 27(5B)(a).
Paragraphs should be numbered (a) and (b) and not (eA) and (eB).

Clause 27, Section 27(5B)  
Amendments included the addition of ‘or should reasonably have known’ or ‘service’ as appropriate.
Recommendation: The amendment was intended to bring alignment with international treaties, and if not required, the amendment could then be discarded. The Committee should decide if negligence should be a criminal office. Legal Services recommended that only intent be retained in section 27 or that the amendments be discarded as a whole. Adv van der Merwe advised that strict liability might affect the rights of an accused person and was likely to be unconstitutional.
The wording of sections 28O, P and S could then also revert to “has reason to know” as it seemed the public was more comfortable with that phrasing.

Clause 27, Section 27(5C)    
(5C) Subject to section 28S, any person who- (a) in respect of any copy of a work, remove or modify any copyright management information; or (b) make, import, sell, let for hire, offer or expose for sale, advertise for sale or hire or communicate to the public a work or a copy of a work, if the copyright management information in respect of that work or copy of that work, has been removed or modified without the authority of the copyright owner, shall be guilty of an offence.

Recommendation: The Committee was cautioned that strict liability might affect the rights of an accused person and was likely to be unconstitutional. Technically, the verbs had to be changed to the singular form.

Discussion
The Chairperson called for comment and questions from Members.

Mr S Mbuyane (ANC) noted that the Committee had called for responses to the proposed amendments to the Copyright Amendment Bill and the purpose of today’s meeting was to hear the responses from the dtic and the Legal Advisor. He added that there was a need to take some time to engage with their constituencies and principals before holding a discussion.

Mr D Macpherson (DA) noted the incredible complexities of the Bill. There was a lot to digest and Mr Mbuyane was correct that it was extensive. Adv van der Merwe had presented options that had not previously been available to the Committee. The Committee had to give surety to the direction of the Bill as it had been under discussion for a great deal of time. Seconding Mr Mbuyane’s proposal, he agreed that Members needed to discuss the extensive input from the Department and the Legal Advisor with their parties and then to meet to determine a way forward.

Mr M Tshwaku (EFF) requested more information on the Bill during its process over the years as he was a relatively new Member and did not have details of the history of the Bill. It was an important Bill with huge interest from members of the public. He had nine questions but he could send them directly to the Department and the OCLS in order to get written responses.

His constituencies were concerned about the Bill because they had material that was sitting with producers of various kinds and they were concerned about what would happen to that material. Would it be returned to the original composers? How did the Bill apply in respect of the situation as it stood at the moment? He added that he would be developing a position paper for his party.

The Chairperson noted the position of Mr Tshwaku and asked that he direct his questions as suggested as there was a proposal on the table that the meeting be adjourned to allow Members an opportunity to consider the implications of the public comments and the advice of the dtic and the Senior Legal Advisor.

Mr W Thring (ACDP) noted and appreciated the inputs. He pointed out that all Members were being lobbied by people impacted by the Copyright Amendment Bill. He agreed that it was important for Members to go back to their parties to consider the input on the Bill.

Closing Remarks
The Chairperson noted the Committee’s agreement that the meeting should be adjourned to give Members an opportunity to deal with the extensive input.

The Committee Secretary informed Members that the following meeting would be on Tuesday 10 May 2022 when the Committee would be briefed on the Master Plan for the sugar industry. Discussion on the remitted Bills would continue on Wednesday, 11 May 2022.

The meeting was adjourned.
 

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