Copyright & Performers’ Protection Amendment Bills: deliberations

Meeting report

Opening Remarks
The Chairperson indicated that the Committee would be continuing its deliberations on the proposed amendments to the Copyright Amendment Bill and Performers Protection Amendment Bill. The deliberations would be led by the Office of Constitutional and Legal Services (OCLS) and the Department of Trade and Industry (dtic). Adv Charmaine van der Merwe from the OCLS would lead the discussion and Dr Evelyn Masotja, DDG: Consumer and Corporate Regulations at dtic would add comments on behalf of the Department.

Adv van der Merwe had prepared two documents for the Committee – one with the table of proposed amendments to be discussed and a second document on proposed wording to assist the Committee.

Clause by clause discussion of the Bill
The Chairperson stated that she would check for questions, comments or agreement after each clause.

Adv van der Merwe presented the clauses for discussion.
 
Clause 1: Definitions
“ accessible format copy” – The Committee seemed to agree with the amendment. The wording was similar to the Marrakesh Treaty but the Bill went further and included all persons with a disability, not just sight because of the rights contained in the Constitution.
Recommendation: Retain wording as advertised.

“authorized entity” – gives clarity on who the Bill was dealing with when talking about assisting those with a disability.
Recommendation: Retain wording as advertised.

“broadcast” – currently much discussion regarding the meaning of broadcast but the recommendation was to move forward with an aligned definition in both Bills. Also “wire” would be retained because it was still in use in SA.
Recommendation: Retain wording as advertised; include “wire”.

Mr C Malematja (ANC) suggested that the Members had to vocalise their agreement after each clause.

The Chairperson explained to Mr Malematja that the amendments were still being finalised so Members were not yet voting.

Mr S Mbuyane (ANC) asked what would happen to “wire” transmission if “wire” was removed in favour of “wireless”.

Mr D Macpherson (DA) repeated the previous day’s point. The DA would not be making any inputs because the DA did not believe that the way the Bill was progressing was correct. Silence on the part of the DA was not a sign of approval or consent.

Mr Mbuyane said that the Committee was not yet at a point to agree or disagree.

Mr F Mulder (FF+) asked about the process and how outstanding issues would be addressed. The FF+ was uncomfortable with the Bill, but he would respond later.

Adv van der Merwe said that Mr Mbuyane was correct regarding the point about “wire” but the proposal was not fully aligned with the international wording. SA’s situation had been given consideration and the Bill included “wire”.

Mr Mbuyane repeated that it was necessary to have “wire” in the Bill.

Mr W Thring (ACDP) understood the argument to retain wire, but his question was whether that made the Bill incompatible with the international treaties. How did one get around that?

Adv van der Merwe explained that not all the treaties had been signed by SA. In respect of those that SA was a party to and had signed, one had to remember that a treaty had to be aligned with domestic law. She said that countries could work towards something, i.e. what was in the treaty, but there was always room for flexibility. Treaties gave leeway for domestic situations. A treaty contained best practices and SA was working towards that, so it would not be in contravention of the treaty. If “wire” was not integrated into the Bill, then people using wire would be operating without legitimate legislation. They would not just stop operating.

Dr Masotja said that there were different views on treaties. Treaties were formulated in discussions. There were treaties and there was SA’s own Constitution and the two had to be aligned. In the context of a country, there was flexibility as long as the legislation did not reduce the rights awarded in the treaty. An example was the fact that the Marrakesh Treaty spoke to the rights of people with visual disabilities but SA had broadened that clause to include other disabilities, i.e. the legislation would not reduce, but would increase the rights afforded. There were other countries, even developed countries, that had included wire. There were those who said that treaties had to be incorporated verbatim, but that was not the approach in SA.

Mr Z Burns-Ncamashe (ANC) added a rider regarding the approval of the treaties by Parliament. While he appreciated that the signing of treaties was an executive function, a treaty had to be approved by Parliament for the treaty to be functional. Adv van der Merwe had indicated that some treaties had not been signed and he wanted to know if they were applicable without being approved by Parliament.

Mr Thring asked which sectors would be affected if “wire” were to be removed.

Adv van der Merwe explained that even if the treaties had not been signed, SA could still align the laws to the treaties as they were best practices. Members had to consider that the treaties were there and were waiting for approval by Parliament, so even if SA was not yet obliged to follow the treaty, it was best to align to it while legislation was being drafted as Parliament was preparing legislation to ensure that the treaties were ratified.

Dr Masotja said that there were “wire” transmissions such as community-based radio stations that did not use wireless transmission. For example, one community station was using a battery to broadcast. Those radio stations did not have access to sophisticated tools and the local communities had no other form of receiving information. The unintended consequences would deprive the population of access to information. Societal issues had to be taken into consideration. She said that she could look further into other sectors that used wire to broadcast.

She agreed with Mr Burns-Ncamashe that the treaties had not been ratified, but some had been adopted by both Houses and they had been deposited for ratification and some were waiting for legal approval.

Mr Thring said, in respect of the example regarding community radio stations being affected, that he understood that the stations used batteries and inverters but that was not an issue of wire or wireless. Who, in the public submissions, had raised the concerns about “wire”? Was it the community radio stations themselves? As far as he understood, all radio stations were, by implication, wireless.

Mr Tshwaku stated that the example of “wire” transmission was incorrect. He did not think that there had been any wire transmissions since people had used a tin to speak to each other, so he asked for a better example of wire. Regarding the treaties, he was confused as to why they had to be included when they had not yet been approved. Why was the Committee putting the cart before the horse?

Dr Masotja agreed that she was wrong about using a battery to transmit and took the point made by Mr Thring and Mr Tshwaku, but she had said that she would look into it. There were public comments about “wire”, but there had been no submissions from community radio stations. She had noted the points and would look into the matter.

Adv van der Merwe had found a submission from the Association of Broadcasters and one from eTV that had indicated that broadcasting by wire occurred - the Department of Telecommunications had not yet made a transition from wire. Both submissions were in respect of television.
   
  Clause 1: Definitions cont.
1.4 “lawfully acquired” – the Committee had wanted to be strict about access to material but the court needed some flexibility so the proposal was that when it came to personal copies the term “lawfully acquired” should not be used as a definition or in the text of the Bill. It was too restrictive.
Recommendation:
- the definition of “lawfully acquired” be removed;
-the addition of “lawfully acquired” to S12B(1)(h) and subsection S12(3)(b) be removed.

Mr Tshwaku asked if “lawfully acquired” meant that if he had bought something, such as a CD, and he gave it to his brother to play, that CD was “lawfully acquired”.  How did one regulate something like that?

Mr Mbuyane referred to section 12B(1)(i), asking if it would not be in line with the three-step test and if that was the case, he believed that “lawfully acquired” could be retained.

Adv van der Merwe said that the current Copyright Act allowed for the making of private copies. The amendment, prior to adding “lawfully acquired”, was in line with the 3-step test. The Berne Convention said that personal copies had to be in line with the three-step test and so the inclusion of fair practice was adequate. If ‘lawfully acquired” was included, his brother could not use the CD even to listen to as, in the example, Mr Tshwaku had lawfully acquired the CD, not his brother. She added that each situation had to be determined according to its own merits and so the courts had to have the flexibility to come to a judgement. “Lawfully acquired” would mean that one could not borrow a copy of the material even to read one page or to listen to one song. She did not think that the Committee wanted to make copyright that strict.

Mr Thring asked how one enforced the “lawfully acquired”. Was it down to intent versus negligence? He also asked if pirated copies were forbidden.

Adv van der Merwe explained that an exception in an Act could not be used to allow previous illegal actions. The strict nature of the definition of including lawfully acquired would mean enforcement would be difficult. Enforcement was always a problem. If one bought a CD but did not have a CD player in one’s vehicle, so one transferred the music from a CD to another format for use in one’s own vehicle, reasonable copyright laws would allow for that as it was a fair practice. But to sell the copies of someone else’s material, even lawfully acquired, was not a fair practice. Fair practice would deal with any illegal activity, including piracy. The crux lay in fair practice.

Dr Masotja said that the explanation by Adv van der Merwe showed the idea behind fair practice. Users had to align themselves to the restrictions. Private copies could not be circulated beyond one’s personal use. Piracy was a real problem in SA and that was why “lawfully acquired” had been included as an amendment. The UK had to delete “lawfully acquired” as there were too many unintended consequences when it had been introduced into the UK Copyright Act. She agreed that enforcement was a serious problem but that was related to the implementation of the Act and people should be educated about those things. The public did not always know what was correct and what was not correct in respect of personal use of material.

Mr Burns-Ncamashe stated that a lot of education was needed because they were dealing with poor communities, especially students who were ignorant of the law. A lot of education had to be done at all levels of education institutions, from schools through to tertiary institutions.

Clause 1: Definitions, cont.
1.5 Technological Protection Measure (TPM): The concept in SA copyright law was a new one and while the Bill should be careful to protect technology, the amendment had too many unintended consequences and would breach other laws.
Recommendation: Retain the wording of the Bill before the latest advertisement and add “product” (also to paragraph (b) of the definition of TPM) to extend the protection provided.

1.6 Technological Protection Measure Circumvention Device (TPMCD): the advertised definition could limit certain freedoms. The amendment had also added examples, but the restrictions had become too broad, and the use of examples had certain unintended consequences.    
Recommendation: Retain wording of Bill before advertisement and add “or service”.

Clauses 5, 7, 9: The Committee had already agreed to delete the retrospective clauses as well as the delegations to the Minister.
That had been a substantive referral of the President. The clauses had related to copyright that was assigned before the Act came into implementation and had wanted to enforce the sharing of any profits currently obtained from those earlier contracts and (b) had delegated plenary power to the Minister to determine how to achieve that sharing of profits. However, such delegation to a Minister was illegal and unless Parliament could resolve questions of who had been deprived and how to take cognisance of the individual details of each case, such a law could not be passed. The retrospective clauses and the delegations to the Minister had to be withdrawn.

Mr Tshwaku asked if the retrospective clauses had enabled the copyright to revert to the creator. Many artists were concerned that they could not get their work back. By deleting those clauses did that mean that the originators would be left to go hungry because they could not get their work back? Artists were looking to clauses 5, 7, and 9 to have their rights restored.

Adv van der Merwe said (7) “c” was the crux of the retrospective clauses. It stated that if profits were still being made, a share had to be paid over to the author. That clause was not about expropriating the work; that had not been possible because there were too many issues to take into consideration in an Act, e.g. contracts, conditions, etc. The clause dealt with companies that had bought the work and were still making money. People could have been exploited but how did one differentiate between who had been exploited and who had not been exploited? What about work that had been sold on? How did one identify all the works? The questions that could not be answered meant the law would be vague and that was against the rule of law. The section was problematic and would not have passed constitutional muster so the plan had been to include the concept in law but to leave the Minister to determine how it could be done. However, that was not constitutional, and the Committee had decided to remove the clause. It had decided that the dtic would look at the situation and identify the necessary processes to be able to implement such a law. Parliament would maintain oversight of that process to be sure that it was happening.

Mr Thring asked if that subsection had sought to mitigate against exploitation and, if that was being removed, when would something be ready to put in the law to protect the originators of work?

Mr Tshwaku did not know what the conclusion was in the end. What was going to be put in its place to deal with exploitation?  Who had given company A the authority to sell the work to company B? The Committee should not be on the side of companies that were exploiting artists. He wanted the Committee to re-look at the clauses.

Dr Masotja stated that the points made by the Members were valid. She noted that it had been one of the most debated areas of the Bill. It was a big policy issue and there had been consultations with artists who had not been paid their rightful dues. She said that artists and creators signed off the rights to their works and accepted an offer that did not recognise the value of their work. That was still an issue. Sometimes it was only many years later that a company found a market for the work and made a profit from it.

She confirmed that the Committee had decided that it should be a separate issue and that a process should be put in place to deal with it. She believed that the Committee should guide the dtic in that process. The Committee had tried to resolve the problem by including those clauses, but the President had raised the issue of unconstitutionality. The matter remained an issue.

Adv van der Merwe suggested that the report to the National Assembly on the Bill could refer to those clauses and the issue that had given rise to the clauses so that it did not get lost.

Clause 11: Correction of the gender references in the Bill to make it gender-neutral and in line with more acceptable drafting principles. The gender referencing applied to several clauses.

New Clause: Changes to Sections 11A and 11B add the exclusive rights in respect of computer programmes and published editions. It was an addition to the Bill in line with public input and approved by Parliament.
Recommendation: Retain the wording as advertised (but correct “services” to read “service” as in the original amendment)

Clause 13
Section 12A(1) – consideration was given to the deletion of paragraphs (i), (iv) and (vi) because they were repetitions but the public had called for them to remain.
Recommendation: Retain paragraphs (i), (iv) and (vi).

Section 12A(c) – the amendment dealt with ensuring that the author was accredited, but only if the name appeared on the work; one did not have to go and look for the name.
Recommendation: Add “if it appears on the work” (in reference to the name of author)

Section 12A(d) added the fair use principles but it had been decided that was not necessary.
Recommendation: Delete 12A(d).

Section 12B(1)(a)(i) – The advertisement substituted “justified by the purpose” with “fair practice” but the Berne Convention referred to both phrases.
Recommendation: Use both “fair practice” and “extent justified by the purpose”.

Section 12B(1)(a)(ii) – consideration had been given to allowing for an author’s name to be used with a quotation from that author’s work “only if it were practicable”. However, the exception for quotations when it came to copyright already existed in the current Act and it would be unfair to the author to use an extract without naming the author.
Recommendation: Because “as far as is practicable” is not in the Copyright Act, it is recommended that it not be included in the Bill.

Section 12B(1)(b) – moved to section 12D(9) (use of illustrations for teaching).

Section 12B(1)(c) (will become (b) as per above move) – Discussed the previous day: remove the wording from the Canadian Act that talks about ephemeral rights. The Canadian Act could be used for research and furthering policy but should not be included in current Bill. Adv van der Merwe explained that the dtic looked at international treaties and legislation in other countries to form policy and then from the policy some of those points adopted would come into SA legislation. She suggested that the wording from the Canadian Act be removed and the wording in the Bill be retained because it spoke to the same issues, including the fact that the work could be used for a period of six months post the broadcast of material. The dtic could look at the Canadian Act and, if necessary, come back to the Committee with further proposals.
Recommendation: Retain the wording of Bill prior to the advertisement.   

Mr Thring said the use of word “ephemeral” could cause confusion for someone whose language was not English. He suggested that the word be changed to” temporary” or something appropriate that the layman could understand. He also suggested that it was necessary to add timeframes so the time period was clearly understood.

Mr Mbuyane said Mr Thring had covered him regarding the number of days allowed for the ephemeral period.

Adv van der Merwe stated that the Act spoke of six months and that the period could be extended if agreed to. She agreed that the term “ephemeral rights” was a difficult term but pointed out that it was not used in the Bill itself. She had used the phrase to explain to Members what she was talking about.

Dr Masotja said that it was a word used in the Canadian Act and in general use in copyright terminology.

Mr Mbuyane asked for “a short period” to be clarified. He said that six months was not a short period; it was a long time.

Adv van der Merwe asked if she could come back to the point regarding six months as it had been a policy decision but there had been submission in regard to the time period.

Section 12B(1)(c): (now (b))  – FLAGGED

Clause 13 cont.

Section 12B(1)(d) – this paragraph related to adding the name of the author “if it appears on the work”. [NB: incorrectly numbered 12B(2)(d) on table document]
Already agreed to by the Committee.

Section 12B(1)(e) – The amendment was intended to make some leeway and require the name of the author only “in so far as practicable” but the Copyright Act already has the exception and does not limit naming requirements to “in so far as practicable”.
Recommendation: Delete “in so far as practicable”.

Section 12B(1)(e)(i) – delete (i) because it already appears in the Bill in section 12A.
Already agreed by the Committee.

Section 12B(1)(e (ii) and (iii) speak to the providing of current information. The Berne Convention uses only “extent justified by the information purpose”.  It was not necessary to add fair practice because the test should be aligned to the Berne Convention, i.e. “to the extent justified by the purpose”.
Recommended: Use only “to the extent justified by the information purpose”. In recognition of the moral rights of the author, the name of author had to be used, if stated.

Mr Tshwaku asked if there was not a template for writing SA Bills, which would include “fairness”, etc. Did the wording from Berne, etc not tamper with the fairness that people should enjoy in SA? Why were they using wording from Beijing, Sweden and Berne? Why could they not develop their own work and know that it would work without copying from others?

Adv van der Merwe said that the dtic looked at the treaties as best practice. Those ideas were used in creating SA’s policy, so the ideas were naturally included in the Bill. One of the main reasons for using specific wording was that the courts, when considering a case, could look at the way a word or phrase was used and interpreted internationally, so it was helpful to refer to international law where words had a history of interpretation. For example, “extent justified by the purpose” had a particular meaning for the courts. The courts would then look at how much of a work had been used. For example, a newscaster could use an extract of a work to show an artist on stage but not the entire work. If the legislative drafters found unique terms, the courts would ask why the particular word was used and not the one in common use. Laws had to be readable by everyone. One should not need a law degree to read a law. The laws were made for non-lawyers. She had read legislation from a number of other countries and wished to assure Members that, compared to other countries, SA law was written in simple language.

Mr Tshwaku said that SA should not just import ideas or schools of thought from other countries, as was being done in SA’s foreign policy and which was not working. SA should be innovative and look at the needs of SA and look at the things that SA wished to drive home, such as fairness. If SA wanted to coin new words, that was fine. Original wording could be defended. He cautioned against using international wording and schools of thought as it would drag the country back because some of the treaties were counter revolutionary. The Department could learn from international law, but it should not adopt it.

12B(1)(f)(ii) – translations
The Berne Convention did not provide for translations but could be brought in under Article 9 – the interpretation of fair practice was exactly what they needed in that clause.

-All three criteria had to be in place for the exception to be allowed and therefore “or” had to be corrected to be “and”

-Deletion of section A Personal copies had led to lots of changes being proposed.
No special article in Berne but as above.

-Proposed 12A wording be retained and delete
Being compatible with fair practice – that would limit personal copies to adhering to the three
step test.

Mr Tshwaku asked if there had not been an agreement to use simpler terms.

Adv van der Merwe said that the Canadian version was not being used in the Bill.

The Chairperson thought he was referring to the word “ephemeral”.

Mr Burns-Ncamashe held a different view. Legislation had to be simple and readily understandable but there should be certain jargon and nomenclature that was understood by legal people. It was legal people who argued the cases in courts. The legislation did not end with the layman but was used by judges and lawyers. Language had to be understood by ordinary people but legal terms should not be taken out.

Adv van der Merwe explained that the word “ephemeral” was from the Canadian Act and by taking out reference to the Canadian Act, the word ephemeral had been removed from the Act.

Mr Thring jokingly asked why Mr Burns-Ncamashe used a complicated word like “nomenclature”.

Section 12C – recommended that the paragraph be removed.

Section 12C , i.e. specific examples. Layout change had been necessary to make the phrase applicable to 12C (a) and (b).
Proposal to add wording of three step test but fairness criteria had been built-in to determine fair use. Adding the wording of the three step test made it too difficult for the exception to be applied.

Section 12D – there was also a proposal to add the wording of the three step test but the fairness criteria had been built-in to determine fair use. Adding the wording of three step test made it too difficult for the exception to be applied.

Section 12D(1)  –no need for fair practice/ extent justified by purpose –
“Practicable” to be used in all subsections but not 12D(8).

Clause 18
Section 19 – gender neutral drafting throughout.

Section 19D(1) – authorized entity. The intention had been to take out “as may be prescribed” but it was necessary to refer to people prescribed by the Minister.

Section 19D(1) – the brailled book or accessible copy would look different, but the content had to be identical unless, for example, one indicated that it was an abbreviated copy.

Section 19D(2) – consequential amendment.

Section 19D3(a) – consequential amendment.

Section 19D3(b) – treaty language spoke to a defence so it had been necessary to find wording aligned to treaty language but that created the correct explanation. The public had thought that the words meant that the importer /exporter had to investigate if anyone intended using the copy incorrectly. That was not the intention but only if the importer/exporter had been aware of intended incorrect use. The proposed wording did not put an obligation on the side of the importer/exporter to investigate.
Another change was “reason to believe”. The treaty said “reason to know” and that was a more objective test. Proposed change to “reason to know”.

Section 19D(4)(a) -proposed including the name of author on the accessible format copy.

Section 19D(4)(b) – no need for repetition of the point that it could also be a person who assists one who is disabled.

Gender neutral drafting:
Clauses 22, 23, 24, 25 –  changes in terms of gender neutral language would be shown on the C list = (amendment list).

Clause 27
New section 5A – “and” changes to “or”.
Sometimes it was not the owner who gave authority in a specific company, whereas “authorised authority” allowed for it to be someone to whom that authority was delegated.
The contravention was serious enough if it is communicated, even if there was no profit, that it would be criminalised. However, the section had to show that that there had been an intent to communicate without copyright.

Mr Thring said that at certain times of the year e.g. Christmas, many songs were played and there was reference to literary works. If one received a message, e.g. on social media, one did not know if the material was subject to copyright. If one passed it on, was one engaging in a criminal activity?

Adv van der Merwe stated that in terms of the Bill, that work had to be communicated to the public, not just an individual. Some of the material had passed the expiry date of copyright. The newer songs were more problematic. If the message was extended only to one other person, that was in order, as long as it was not for a person to download. Also, she pointed out, that mostly it was only a small portion of a song and so the reproduction might be fair practice.

Dr Masotja said that it was difficult because it was about the balancing of the rights of the public versus the extent to which there was infringement of rights holder. The offence was about creating harm and it could create harm for the rights holders in terms of income generation. There was a definite need to educate the public about some actions.

Adv van der Merwe said that, in law, if something was so small and insignificant, it was not prosecutable. A person could use that as a legal defence.

Clause 18 cont.
Section 5B dealt with an offence in terms of TPMCV – the question was whether negligence should be part of the offence. Considering the Cybercrimes Act specifically where only intent constitutes an offence and offences in general where negligence rarely constitutes an offence, the recommendation was that negligence should not be included as an offence and the wording could revert to “believe” The difference between “reason to believe” and “reason to have known” related to the difference between negligence or not. The recommendation was to use of “reason to believe”.
The fine had been deleted because it appeared in another section.

Section 5C related to an offence in respect of copyright management information.  The recommendation was that the verbs in (5C)(a) and (b) should be in the singular form. It was also recommended that that (5C)(b) should also only constitute an offence where the infringing party knows that it is infringing copyright.

Clause 29
Section 280 –  adding “or service” and changing “has reason to believe” to “should reasonably have known” were both consequential amendments.

Clause 31
Section 29C – correction of the subsection numbering and gender neutral drafting – already agreed to by the Committee.

Clause 33 – technical amendment (corrected (cH) to read “28P”)
Section 39 was to provide for regulations for disabled people and there was to be no discretion: the Minister must ….
Consequential amendment (2) became (3). The Minister had to publish for public comment.

Clause 35
Gender neutral drafting.

Performers Protection Amendment Bill (PPAB)
Adv van der Merwe stated that there were very few amendments to the PPAB.

Clause 1
Definition of broadcast – align with CAB and retain “wire”.

Clause 2
Gender-neutral drafting.

Clause 3
Section 3A – the intention was to distinguish between audiovisual work and sound recordings in respect of royalties and equitable remuneration. One cannot use royalties for everything as “royalties” did not apply to sound recordings and could not be used in contracts.
Also gender-neutral drafting.

Mr Thring asked if it meant one would get equitable remuneration and not royalties.

Dr Masotja informed Mr Thring that “equitable renumeration” was used in the treaties and the dtic had been cautioned to use the relevant type of payment with the appropriate form of work. The technologies of different industries were different and different terms were used, but it did not mean that in certain industries artists were not treated fairly and not paid equitably.

Clauses 4 and 5 – gender-neutral drafting.

Clause 6 – add “into” (missing word)

Clause 7, 8(e)and 8(f)
Remove reference to Electronic Communications and Transactions Act. Also gender-neutral drafting

The Chairperson informed the Committee that the intention was to allow parties to go back to their caucuses to discuss the proposed changes and that they would be discussed at the next meeting on the two Bills. She noted the DA and FF+ positions.

Closing remarks
The Chairperson stated that the National Lottery Commission matter would be discussed the following week.

The Committee Secretary said that at the next meeting, the Committee could come to a decision regarding how to proceed with the Bills. There would be no meeting on the coming Friday owing to plenary commitments. On Tuesday 24 May 2022, the dtic would present its Fourth Quarter Report for the 2021/22 financial year and the Committee would discuss the NLC Chairperson. The following day, Wednesday 25 May 2022, the Committee would continue deliberations on the Bills.

The meeting was adjourned.