Copyright & Performers’ Protection Amendment Bills: Committee Reports

Meeting report

Opening Remarks
The Chairperson reminded Members that the Committee had resolved that parties would be given an opportunity to submit minority views for the Committee’s consideration.

She requested the Committee Secretary to present the minority views submitted.

Formal Consideration of the Second Report to the National Assembly on the Copyright Amendment Bill
The Secretary stated that he had received minority views from the FF+, the DA, and the EFF. Each party was requested to consider the way in which the secretariat had captured the input presented by the party.

He presented the FF+ minority view which expressed concerns that the Bill was fundamentally flawed and that amendments would not enhance the Bill. The Freedom Front Plus was concerned that, although it was not a legislative prescript, a Socio-Economic Impact Assessment Study of the copyright exceptions in Sections 12A, 12B, 12C, 12D, 19B, 19C, and 19D, as well as the other new provisions in the Bill, had not been conducted before the Bill was adopted.

The Freedom Front Plus was of the view that the Bill was fundamentally flawed and that a clause-by-clause consideration of amendments to address the President’s reservations would not enhance the Bill further. In light of the above, it had recommended that the Committee should have opted to apply Rule 203(3)(c) recommending to the House that it should rescind its previous decision to pass the Bill and reject the Bill.

The Freedom Front Plus disagreed with the Committee that the consultation periods had been sufficient, and was of the view that the periods, which it viewed as too short given the complex nature of the Bill, had inhibited members of the public to comment. It expressed a concern that the Bill might face a Constitutional Court challenge in that regard.

Mr F Mulder(FF+) thanked the secretariat for presenting the views of the FF+ accurately.

The Secretary presented the minority view of the Democratic Alliance which expressed concerns that although not a legislative prescript, a Socio-Economic Impact Assessment Study of the copyright exceptions in Sections 12A, 12B, 12C, 12D, 19B, 19C and 19D, as well as the other new provisions in the Bill, had not been conducted before the Bill was adopted.

Academics had provided training to the Committee to enhance Members’ understanding of copyright law.  The Committee also considered inputs from all academics who made submissions during the call for comments. The Democratic Alliance was, however, of the view that the Committee had relied too much on the Department and a specific group of academics during the process and raised that as a concern.

The Democratic Alliance was of the view that communication from stakeholders, received after the period for submissions on the Bills had closed, had been withheld from Members and that was a concern.

The Democratic Alliance expressed a concern that parties had not been given sufficient opportunity to make submissions with regard to the option available to the Committee, as expressed in Rule 203(3)(c), which would have allowed the Committee to recommend to the House that it should rescind its previous decision to pass the Bill, and to reject the Bill. The Committee had considered a discussion on, and proposal to proceed under paragraph (c), as well as the proposal to proceed under paragraph (b), which allows for the Bill to be amended. The Committee had voted to amend the Bill and not to reject it.   
                                                                                                                                                                       
Mr D Macpherson (DA) disagreed with the way in which the DA concerns were captured in respect of the new communications submitted to the Chairperson after the clause-by-clause reading but before the voting on the Bill. They were not made available to the Committee Members, despite a request to view the correspondence. The DA was of the view that communication from stakeholders to the Chairperson was withheld until after the vote on the Bill.

The Secretary confirmed that the correspondence from stakeholders sent via the Chairperson was only made available to Members after the voting. He amended the DA minority view.

The Secretary presented the minority view of the EFF. The Economic Freedom Fighters were of the view that the deletion of the retrospectivity clause from the Bill would result in the continuation of the exploitation of artists, singers and performers guaranteeing that they would continue to live in poverty and die as paupers.

The Economic Freedom Fighters also expressed concern about the process being limited by the Committee in terms of Joint Rule 203.

Dr M Tshwaku (EFF) stated that he had not made a recommendation requiring urgent action by the Minister to address the concerns of the EFF. He wanted that removed as it was not part of his input.

Dr Tshwaku asked if he could add another point because the Bill did not adequately address the plight of the actors.

The Chairperson enquired whether that point had been made in his input as the Committee could not add additional items. The meeting was to consider the report as it was written.

Dr Tshwaku said that he had only obtained that point after he had made his input. He asked if he could add one sentence.

The Secretary informed the Chairperson that further input was permissible as it was part of the process.

Dr Tshwaku stated that he wished to add: The Bill did not address the plight of the actors because currently actors were not earning royalties and the injustices of the past were not being addressed. The actors were treated as freelancers and not as workers and so were not protected by the Labour Relations Act. The Bill also fell short of enabling the establishment of collection societies so that they could collect royalties, which had led to a huge disappointment amongst actors.

The Committee adjourned briefly while the secretariat rewrote the minority view.

The Committee Secretary read through the Second Report of the Portfolio Committee on Trade and Industry on the Copyright Amendment Bill to the National Assembly (see documentation). At the point where the EFF expressed concern that the Bill did not allow for collecting societies, the Secretary requested that Adv van der Merwe be permitted to explain where the Bill accommodated collection societies.

Adv Charmaine van der Merwe, Senior Legal Advisor, Office of Constitutional and Legal Services, stated that clause 27 of the Copyright Amendment Bill inserted a chapter 1A into the Act. It was headed ‘Collecting Societies’ and provided for accreditation of collecting societies and section 22(b)(6) provided that if there was no collection society for a right, the Commission may provide such assistance as it may be necessary in the formation of a collecting society. The Bill provided, not only for the accreditation of existing and new collection societies and even made provision for the Commission to step in and assist should a right not be represented by a collecting society. The provision was there. It was a whole chapter describing every aspect of the business of a collecting society and even allowed for a collecting society be re-registered if appropriate.

The Chairperson asked for a mover and a seconder for the adoption of the report

Dr Tshwaku asked to make some comments as he was of the view that sections of the report were missing.

The Secretary stated that he had included the points that Dr Tshwaku had given him.

Dr Tshwaku said that the reservations of the EFF were not properly captured. He asked why the EFF point about the Bill not addressing collecting societies had been removed.

The Chairperson explained that the statement was incorrect and therefore could not stand in the report. Adv van der Merwe had informed the Committee of the exact detail contained in the Bill that addressed all aspects of collecting societies. The point was factually incorrect.

Dr Tshwaku stated that he vehemently disagreed with the advocate. He categorically disagreed with her statement and it was his view that the Bill did not address collecting societies.

He added that the report should state upfront, in the beginning, that the President had a problem with the retrospective clause. That was a reservation. It was one of the President’s problems and had to be captured as such. Why did the report capture the fair use clause but the important clause of retrospectivity was not captured.

The Secretary explained that the first report to Parliament had already addressed that point in the first report to Parliament. The current report was the second report. Retrospectivity had been addressed and the report had been adopted by Parliament.

Mr Macpherson intervened in an attempt to resolve the situation. He stated that the point of a Committee Report was to capture what had taken place in the deliberations and which matters had been discussed. It was not a document to debate ideology; it captured the process and procedure that had taken place in the Committee to get to that point. The ideological debate would take place in the House.

Mr Mbuyane stated that he did not know what Dr Tshwaku wanted to say because everything had been captured in the report. Possibly he had not been well-briefed by the former EFF Member because the Committee was currently busy with the second round of decisions. On 12 May 2021, a decision had been taken that in the light of the deletion of the retrospective clause, the Committee urged the Minister and Executive to identify a possible mechanism to compensate artists and performers who were exploited in the past because in terms of the Constitution retrospective clauses were not allowed. All the parties, even the DA, had agreed that it was feasible to establish a levy to address the matter and to compensate artists exploited in the past. The Committee had recommended that the Minister spoke to National Treasury.

Mr Mbuyane requested that the secretariat correct the numbering and then he proposed the adoption of the Report.

Mr C Malematja (ANC) said that the Committee had to be clear about why they were there. They were there only because they had given the other parties an opportunity to submit their views. They had done that but there were those who wanted to raise points from outside their submission. He believed that the Committee should consider only what had been submitted as per the agreement. They could not tolerate those who wanted to start things afresh in order to delay the matter as if they did not know what it meant to the lives of the poor and poorest, in particular those who were not given the opportunity to them because the Bill was not pro-poor. It was high time the Committee agreed on what it had agreed on and proceeded to finalise the matter so that it benefitted the people outside there.  

Prince Z Burns-Ncamashe (ANC) seconded the adoption of the report. He allayed the concerns of Dr Tshwaku. The issue about retrospectivity was a doctrinal issue. It was an international principle that when legalisation was enacted a retrospective issue could be included only if it did not impair the content. The Committee had agreed that a different mechanism had to be found to undertake redress, which was the primary concern of Dr Tshwaku.

He said Adv van der Merwe had stated that point several times. As Mr Mbuyane had said, the Committee had addressed a different approach to deal with retrospectivity.

Mr Macpherson stated that the report was a fair and accurate reflection of the process and so the DA supported the report. That should not be misinterpreted as support of the Bill

Dr Tshwaku recorded the EFF’s abstention.

Mr Mulder stated that the FF+ supported the report but not the Bill.

The Report was adopted by the Committee with one abstention.

Read: ATC220610: Second Report of the Portfolio Committee on Trade and Industry on the President’s reservations regarding the Copyright Amendment Bill, dated 10 June 2022

Presentation of the Second Report to the National Assembly on the Performers Protection Amendment Bill
The Secretary read the Report.

The Chairperson called for a mover and a seconder

Mr S Mbuyane (ANC) proposed the adoption of the report and Ms N Motaung (ANC)  seconded the motion.

Dr Tshwaku indicated that the EFF abstained.

Mr Macpherson stated that the report was a fair and accurate reflection of the process and so the DA supported the report. That should not be seen as support of the Bill

Mr Mulder stated that the FF+ supported the report but not the Bill.

The Chairperson stated that the Second Report to the National Assembly on the Performers Protection Amendment Bill had been adopted with one abstention.

Read: ATC220610: Second Report of the Portfolio Committee on Trade and Industry on the President’s reservations on the Performers’ Protection Amendment Bill, dated 10 June 2022

Closing Remarks

The Chairperson noted that both Reports had been adopted and that the business of the day had been concluded.

The meeting was adjourned.