Copyright & Performers’ Protection Amendment Bills: Legal Advisors input, with Deputy Minister; DTIC Budget: Committee Report

Meeting report

Opening Remarks
The Chairperson reminded the meeting that the Portfolio  Committee would be continuing the deliberations on the amendments to the Copyright Amendment Bill and the Performers Protection Amendment Bill as advertised as the amendments went beyond the initial changes prompted by the President’s reservations. The advertisement had given members of the public a second opportunity to comment on the Bill following its remittance by the President. The purpose of the meeting was to receive a combined response from the Department of Trade, Industry and Competition (dtic) and the parliamentary Office of Constitutional and Legal Services (OCLS) to the public comments. Adv van der Merwe from the OCLS would make the initial presentation and Dr Evelyn Masotja, DDG: Consumer and Corporate Regulations at dtic would add comments on behalf of the Department.

The Chairperson added that she had received some correspondence that she would distribute to Members but was sure that Adv van der Merwe would address the correspondence during the meeting. The Committee could discuss the letters at the following meeting.

Presentation by the Office of Constitutional and Legal Services
Responses to correspondence sent to the Committee
Adv Charmaine van der Merwe, Senior Legal Advisor, OCLS, addressed the correspondence to which the Chairperson had referred. She explained that certain things that she had said had been misunderstood. Firstly, the OCLS did not recommend policy decisions. For example, she could not advise the Committee on whether to use the principle of fair use or fair dealing as that was a policy decision, but if the Committee decided to consider fair use, she could give advice on how it was used in the Bill and the implications of using fair use. She advised on legal and constitutional matters; the dtic could advise on policy.

Adv van der Merwe agreed with the correspondent that she had also said that the Committee might reject the Bill. However, she did so not because she was advising the Committee to reject the Bill; she had informed the Committee of that option in the light of her role to explain what options the Committee had in terms of Rule 203 when dealing with a section 79(1) Bill. The Rules allowed a Committee to reject a Bill, but a Committee was not permitted to redraft the Bill because the whole Bill was not under discussion. However, if the Committee found the Bill so defective that it could not approve it, it should be rejected. She reiterated that her comment the previous week was not an invocation to reject the Bill but an explanation of the process as that was her job.

She explained that another point of confusion by a correspondent had been the difference between the SEIAS process and the impact of amendments assessment. The SEIAS was a socio-economic impact study that had been required by Cabinet since 2015 for any policy or draft Bill. Before that time, a regulatory impact assessment was required by Cabinet but it was not seen as wide-ranging. The SEIAS process was undertaken by a unit in the Department of Planning, Monitoring and Evaluation and a Bill could not be sent to Cabinet without that study having been done. She was aware that a SEAIS had been done on the Bill in 2013 or 2014. The timeframe was unimportant; the fact was that it had been done.

Adv van der Merwe stated that the Committee was free to ask for an assessment to be undertaken or to ask for an external legal opinion on any amendment, or even in respect of Rule 203 or a section 76 Bill. The previous Committee had followed that process in respect of the National Credit Amendment Bill. However, if a Committee was not sure about material amendments and was concerned about the implications of those amendments, the most common way was to ask the public. That was what the Committee had done, and the Committee was now considering the public input. They were addressing the mischief that there was not sufficient balance in the Bill.

Recommendations and comments on the public submissions
Adv van der Merwe told Members that the previous week, she had sent Members a document with all the recommendations made by the public, the dtic recommendations and her responses. She and Dr Masotja had since refined the document, aligning it to show where their opinions were similar and where they differed.

Adv van der Merwe had sent her document to Members and so explained that green font meant that there was agreement between OCLS and the dtic, orange font meant that there was uncertainty about the submission made and red font showed that the dtic and OCLS had differing opinions. She and dtic were trying to assist Members to make their decisions by showing where they were offering similar advice. Where there was orange font, she believed that more investigation and research had to be done so that they could offer more definite advice to the Committee. She explained that the previous presentation had been organised in themes but now she was adopting a conventional approach by going through the proposed amendments clause by clause. She addressed amendments presented in the two advertisements sent for public comments since the Bills had been remitted.

Adv van der Merwe shared the document onscreen and spoke to the recommendations from dtic and her opinion:
Responses to Proposed Amendments
Clause 1: Definitions
Disability: “including to” - retain the phrase.
Authorized entity: definition and wording of “authorized entity” - retain.
Broadcast: ‘wire’ - retain in both Bills; advertised wording - retain and align across both Bills.
Lawfully acquired – remove definition and text in the Bill relating to ‘lawfully acquired’.
Technological Protection Material – differing opinions. Further research to be undertaken.  
Technological Protection Material Circumvention Device– differing opinions; further research to be undertaken.  

Clause 5: Retrospective clause and delegations to Minister already deleted.

Clause 7: Retrospective clause and delegations to Minister already deleted. Gender neutral drafting already agreed to by the Committee.

Clause 9  - Retrospective clause and delegations to Minister already deleted.

New Clause amending sections 11A and 11B -  Retain advertised version.

Clause 11: Gender neutral drafting already agreed to.

Clause 13:
Section 12A(1) – Recommendation to retain i, iv, v.
Section 12A(c) – Recommendation that the name of the author be mentioned if it appears on the work; change “and” to “as well as” and add “if it appears on the work”. Further discussion and research required into retaining “extent to which it is practicable”.
Section 12A (d) – Recommendation to delete paragraph (d) and apply specific criteria to each specific exception.

Section 12B(1)(a)(i) -Differing opinions; further research to be undertaken.
Section 12B(1)(a)(ii) - Further discussion and research required into retaining “extent to which it is practicable”.
Section 12B(1)(b) move to 12D(1) – Recommended.
Section 12B(1)(c) Canadian wording. Recommendation to revert to Bill prior to advertisement.
Section 12B(1)(d) - Recommendation to retain advertised wording.
Section 12B(1)(e)(i) – Previously agreed by Committee.
Section 12B(1)(e)(ii) - Recommendation to retain advertised wording.
Section 12B(1)(e) (iii) – Drafting amendment; Recommendation to change “not for commercial purposes” to “non-commercial” purposes.
Section 12B(1)(f) – Recommendation to add “language and culture”; add fair practice requirement.
Section 12B(1(i) – “personal copies” already agreed to by Committee; recommendation that “lawfully acquired” be omitted.
Section 12B(1)(i)(2) – Recommendation to omit proposed amendment: consequential amendment.
Section 12 B(2) – Recommendation that wording prior to latest advertisement be retained.
Section 12 B(3)(b) -Recommendation that “lawfully acquired” be removed.

Section12C – Recommendation to correct layout.
Section12C(2)- Recommendation that the paragraph be removed.

Section12D(1) – Recommendation that duplication be removed; that the three step test be removed.
Section12D(8) – Author’s name already agreed to by the Committee.
Section12D(8)(a) - Differing opinions; further research to be undertaken.
Section 12D(9)- Differing opinions; further research to be undertaken.

Clause 19B – Gender neutral drafting already agreed to.

Clause 29
Section 19C(4) – removal of “commercial” limited all copies. Recommended “commercial” be retained.
Section 19C(14) - Gender neutral drafting already agreed to.
Section 19D(1) – Recommended “prescribed” be retained (change ‘that’ to ‘who’).
Section 19D(1)(b) – editing already  agreed to.
Section 19D2(a) - adjustment to paragraph already agreed to.
Section 19D3(b) –Recommendation that paragraph be re-worded.
Section 19D4(a) – Differing opinions; further research to be undertaken.
Section 19D4(b) – Recommendation that the paragraph be deleted.

Clause 21
Section 20 - Gender neutral drafting already agreed to.

Clause 23(b)
Section 22 - Gender neutral drafting already agreed to.

Clause 24
Section 22A - Gender neutral drafting already agreed to.

Clause 25
Section 22B - Gender neutral drafting already agreed to.

Clause 27 Offences
Section 27 (5A) -  Recommendation to change the conjunction to “or”; replace the word “owner” with “necessary authority”.
Section 27 (5A) – Policy decision: Removal of “commercial” criminalised non-commercial offences and that was a policy decision but Members needed to be aware a five- year sentence was possible so it had to  be very serious to be criminalised.
Section 27 (5A) - Intention vs negligence: Uncertainty; further research to be undertaken.
Section 27 (5A) – Recommendation that “a person must have knowledge of the offence” be included; correction of incorrectly worded advertisement.

Sectional 27(5B) - Intention vs negligence: Uncertainty; further research to be undertaken.

Section 27B(5C) -Recommendation that verbs should be corrected; person should have knowledge of the offence.

Clause 29 - Obligations
Section 280(1) Recommendation that “a person must have knowledge of the offence” be included if the Committee includes negligence as an offence.

Section 28O(6) -  Already agreed: Reference to Electronic Communications and Transactions be removed.

Section 28P(1) - Already agreed: Reference to Electronic Communications and Transactions be removed.
Section 28P(1)(a) - Already agreed to add Regulations to the Act.

Section 28S – Recommendation that “a person must have knowledge of the offence” be included if the Committee includes negligence as an offence; already agreed – gender neutral drafting.

Clause 31
Section 29C – Already agreed to number correction; gender neutral drafting.

Clause 33
Section 39(1) – Already agreed to numbering correction.
Section 39(2) – Recommended no changes.
Section 39(2) – Already agreed to consequential amendment.

Clause 35
Already agreed to gender neutral drafting.

Adv van der Merwe stated that the amendments to the Performers’ Protection Amendment Bill had either already been agreed to or were amendments to ensure alignment with the Copyright Amendment Act.

Dr Masotja stated that the dtic had worked with Adv van der Merwe and therefore concurred with her presentation.

Discussion
Mr C Malematja (ANC) noted that it was a complex matter and it should be simplified so that even a layman could understand it. If it were complex for the academics, what about the layman? The public had to have an understanding of it but it seemed that people did not want to accept that SA was not a learned country as people of a certain colour had been denied education by apartheid and yet it seemed that some still wanted to bind them by using difficult language. None of the legislation was written in the vernacular and yet the common man was meant to understand it. To make things worse, they used terms that were not in the ordinary Oxford dictionary. The terms needed an encyclopaedia to understand them. Words meant one thing but here the meaning was deeper. For example, the usage of ‘or’ only at the end of a sentence was complicated. The language would not be understood by people who had not been to school. It had to be simplified or put in the vernacular.

He added that the advocate was clear about the social impact study: those were the things that the Committee must get. As far as he was concerned, once the matter had gone the public and the public had presented a view, that was it. Who was the Committee to change that position? To be fair, once they had gone to the public, they had to endorse what the public had said.

Mr W Thring (ACDP) noted that Adv van der Merwe had said that the SEIAS had been carried out in 2013/14 and might be outdated. The Committee needed to consider whether an updated socio-economic impact assessment was needed. He pointed out an error in the presentation where “extend” and “extent” had been interchanged.

He understood that there were a few aspects where Adv van der Merwe had indicated that she and the dtic had more work to do: 1) Fair practice versus the extent justified by purpose; 2) the aspect of practicality; 3) the aspect of offence with regards to negligence versus offence. He would appreciate it if that research were done and then brought to the Committee so that the Members could deliberate on it.

He had observed that there was a huge amount of interest in the Bill and the Committee had to balance two aspects: ensuring that it was not putting up barriers for universities, schools, the disabled, etc. while those who had done the work should be fairly remunerated. The Committee Members needed to apply their minds so that they did not make decisions that privileged one group above the other. The Members needed to apply themselves and much more information was needed to do that.

Mr S Mbuyane (ANC) had a few clarity seeking questions about SEIAS, material amendments and the issue of fair use /fair dealing/fair practice. There were now three terms being discussed: fair use, fair dealing and fair practice. What was the difference between the three? He asked Adv van der Merwe whether she was backtracking as she was saying they needed more time for research when she and dtic had been given ample time to deal with the matters. The Committee Members needed to make up their minds and deal with the matter. He was also not sure about importing regulations from Canada: what was Adv van der Merwe’s view of the 30-day time period allowed for in the Canadian system? Was the three-step test in line with the reservations of the President? What was the recommendation in respect of ‘wireless’ versus ‘wire’? Did the Bill not need both?

He would be happy that an assessment had been done but asked if it applied to the current amendment.

Mr M Tshwaku (EFF) noted the huge interest in the Bill. He needed more time to get his head around it, but he was getting there. He believed that the Bill should read more easily. The language should be simpler and there should be no ambiguity. He was previously involved in drafting a Bill which had used very simple, straightforward language. A seven-year-old ought to be able to understand.

He saw that there were more changes. The Committee needed to have a resolution tracker for the Bill and all the items addressed by the Committee. There were no deadlines. He heard that the Bill had been running for more than four years. He was a Gemini, so it became irritating to him if he had to do the same thing over and over again. He wanted to know when the clauses to be investigated would be done. He wanted timelines. The clauses had to be done by the following week.  He had read the Presidents issues. Had the constitutionality of the Bill been addressed? And had the other reservations of the President been addressed?

His position was that the Bill should not exploit the creative industries as people had already been exploited by the record companies. The EFF position was that there was to be no exploitation of the creatives by the multinational companies.

Lastly, he asked why complex terms were being used. Were there not simpler terms? Was there no capacity within dtic and OCLS to develop their own wording? Why steal the wording from Canada?  Was that not a copyright issue in itself? Did they not have the capacity to write their own Bills?

Mr D Macpherson (DA) said that the Bill had taken an interesting turn and he was not convinced that the Bill was headed in the right direction, nor was he convinced that it was well-drafted. One had to ask what justice the Committee was doing to the creative industry in continuing down that road. The National Council of Provinces could entirely undo and changes that the Committee made or it could redraft the entire Bill. Was it not better to put forward something that was more clear, more concise and better drafted?

He added that it appeared to him that there were comments on items not advertised and consideration had been given to issues beyond the call for comment. He asked Adv van der Merwe about the research that she had said they were still doing. To what extent was more research required? The Bill had already dragged on for years. How desirable was the process and was it the correct road and correct process? But he supposed that the latter were questions to be addressed at another time.

Mr F Mulder (FF+) concurred with Mr Macpherson’s opinion, but his main interest was in the Constitutional Court case taking place on 12 May 2022 in which BlindSA was challenging the Minister of Trade, Industry and Competition over the lack of rights for blind people. Could Adv van der Merwe provide more information on that court case?

Adv van der Merwe responded to the question on language. She agreed that language was an important issue and that it had to be very clear as even a comma could change meaning, but it was complex to develop legislation. Drafting legislation was difficult in itself. The Bill was actually written in quite plain language but because of the history of Intellectual Property, the words become weighted. It was difficult to move away because if, in law, one changed word, meant that you rejected the previous meaning and were presenting a new meaning. She assured the Committee Members that she was very conscious of the need to keep the Bills as simple as possible. Some of her proposals were intended to make the language clearer and to do away with any possible confusion.

Regarding the SEIAS process, she explained that the legislative process did not require another assessment, but the Committee could ask for one. Normally consideration of the impact happened via public comment, which had taken place in respect of the Bill.

Mr Thring pointed out that the reference to the error was section 12D(9) … recommendation to the “extend”…  must be “extent”.

Adv van der Merwe explained that fair use was a new policy direction for copyright because the current Act used fair dealing. That meant that things would have to happen differently and therefore, it was necessary to get everything exactly right. There was not a lot of work to be done but she and Dr Masotja were trying to give the Committee the best possible advice. It was not so much backtracking, for example in respect of Technological Protection Measures, but to ensure that all loopholes were closed while allowing the freedom determined by the Bill. It was about finding the correct balance in order to give the Committee more information so that it could make correct decisions.

SEIAS was a Cabinet formal requirement; there was no other legislative requirement. The Bill had gone out to the public and the public had indicated the kind of impact the Bill would have, but the Committee could ask for more in terms of an impact study.

Regarding the three ‘fairs’, Adv van der Merwe stated that Intellectual Property was complex and that it was better to use the same words globally to avoid confusion, but they had to be used correctly. Fair dealing referred to a list of items whereas fair use referred to a principle and the tests were used to determine that the points in the Bill adhered to the principle of air use. In the case of the Bill, fair use had been used together with the tests to determine that the principle had been correctly applied, but in addition, the Bill had used exceptions to create specific lists of how certain things were done. In addition, they were talking about fair practice, which could be viewed as “a criteria under fair use’. Fair practice showed how the principle was practised in different situations.

Adv van der Merwe explained that the question of allowing use for 30 days, or any other figure, required the use of an official archive and SA did not have an archive in the country, so she proposed that they not use the Canadian extract. Using other language directly from the laws of another country had to be consistent and it meant that they did not have to reinvent the wheel, but there were dangers in adopting something from a different country with different circumstances and she advised that the Canadian wording be deleted.

The President’s reservations had been about public comment and international treaties and to address those concerns, a number of clauses had been opened for comment. The trouble with using public comment was that it could change quite rapidly. ‘Wire’ was a typical example. With the previous set of public comments,  the public had said that ‘wire’ should be taken out; during the latest round of comments, the public had said that ‘wire’ was still in use and it ought to be brought back.

In response to the question as to whether the Committee had considered the constitutionality of the Bill, she explained that she had presented an opinion on the matter at the start of the process. OCLS was of the opinion the Bill was constitutional – one or two new amendments raised concerns regarding constitutionality, but she had pointed them out.

Adv van der Merwe explained to Mr Macpherson that she and the team had considered every submission that was made. Some submissions went back to the time when the Committee had introduced ‘fair use’ but the team had considered everything and had advised the Committee on comments that related to recent amendments – that was adhering to consideration of public input.

The BlindSA case to be heard at the Constitutional Court on 12 May 2022 dealt with the Copyright Act that did not give sufficient access to the Blind. It did not address the wording of the Bill. Some of the wording that had been proposed by BlindSA was similar to that in the Bill. The Committee could wait for the judgement, but no one knew when the judgement would be handed down so it was best to leave that judgement to be considered by the NCOP. As far as she was aware, BlindSA was satisfied with the wording in the current Bill.

Dr Masotja said that some work had to be ironed out between dtic and OCLS but that was new input from public comment. Research did not mean outsourcing research. They would be looking at public comment given by experts. For example, they had to assess the options in respect of Technological Protection Measures. Work had been done previously but there was new public comment. She assured the Committee that her team and the dtic team could find agreement as early as next week. The intention was to assess implications and weigh the options very carefully. She wanted to provide a single approach from the advisors to the Committee.

Mr Macpherson said he may have missed it, but he asked where the publication of the SIAS was to be found. Or could she provide him with a copy?

Dr Masotja informed the meeting that the Cabinet SEIAS and regulatory study had been done in 2017 and she would avail those documents to the Committee.

The Chairperson closed the matter, reminding Members that there would be further engagements on the remitted Bills.

Consideration of the Report on Budget Vote 39: Trade, Industry and Competition
The Committee Secretary stated that the updated report had been submitted to the Members and no changes had been proposed. The Secretary had added an introduction that had been submitted to Members.

Chairperson requested that the introduction be read into the minutes.

Mr Mbuyane agreed that the Committee should go through the introduction so that it could be adopted.

The Secretary read the introduction which spoke of the intentions of the Department:
In the State of the Nation Address (SONA) in February 2022, the President emphasised the need to build on initiatives of economic reconstruction and recovery, and to improve the business environment for all companies by reducing red-tape across all spheres of government. The key priorities for the Department of Trade, Industry and Competition (DTIC), in this regard, is to contribute to growing the economy, consequently creating jobs, and reducing poverty and inequality. This will be done by (i) attracting and retaining investment; (ii) facilitating increased localisation; (iii) increasing exports; and (iv) supporting regional integration, particularly capitalising on opportunities brought by the African Continental Free Trade Area (AfCFTA). The sectoral master plans, localisation and beneficiation, spatial industrial development, regional integration, promotion of global trade, and the creation of a conducive business environment are some of the mechanisms that the DTIC plans to implement to achieve this. There will also be a programme to reduce red-tape across the DTIC and its entities in support of the Presidency’s initiative on red-tape reduction.

The DTIC’s 2022/23 Annual Performance Plan (APP) builds on the joint key performance indicators (J-KPIs) introduced in 2021 to improve integration of the work of the DTIC and its entities. Three succinct outcomes are introduced in 2022, namely (i) industrialisation to promote jobs and rising incomes, (ii) transformation to build an inclusive economy, and (iii) a capable state to ensure improved impact of public policies. Each programme’s key performance indicators (KPIs) are therefore linked to one of these three outcomes.

The DTIC’s allocated budget remains under pressure due to fiscal constraints and the slow economic recovery. However, the three outcomes are expected to focus its activities and ensure that non-financial policy tools and support measures across the DTIC are used effectively to maximise its impact. Furthermore, the DTIC will continue to leverage the balance sheets of the development finance institutions (DFIs) to expand off-budget financing opportunities and to increase resource efficiencies.

Mr Mbuyane proposed the adoption of the report. His proposal was seconded by Ms Moatshe.

Mr Macpherson asked the Chairperson to note the abstention of the DA.

Mr Mulder requested that the abstention of FF+ be noted.

Mr Tshwaku requested that the abstention of the EFF be noted.

Mr Thring requested the Chairperson to the ACDP abstention.

The Chairperson noted that the report was adopted by the Committee with abstentions.

Consideration of the Minutes
The Minutes of 29 March 2022, 19 April 2022, 3  May 2022, and 4 May 2022 were read and adopted unanimously with no amendments.

Concluding remarks
The Secretary stated that there was a request that Friday’s meeting be postponed to Tuesday 17 May 2022 to allow the dtic and OCLS time to meet and prepare for the next meeting.

The Committee agreed to the postponement.

The meeting was adjourned.