Workshop on Performers’ Protection Amendment Bill and Copyright Amendment Bill, with Deputy Minister
NCOP Trade & Industry, Economic Development, Small Business, Tourism, Employment & Labour
25 October 2022
Chairperson: Mr M Rayi (ANC, Eastern Cape)
The Select Committee on Trade and Industry, Economic Development, Small Business, Tourism, Employment, and Labour held a workshop on issues relating to the Performers’ Protection Bill and the Copyright Amendment Bill. The Parliamentary Legal Advisor briefed the Committee on how to address issues arising from the section 79 process in relation to the two Bills and the recent court case on the current Copyright Act.
The workshop was an empowerment exercise to enable Members of the National Council of Provinces and Members of provincial legislatures to deepen their understanding of copyright and Performers’ Protection laws. The workshop did not deal with the merits and demerits of the Bill, which would be handled by the Department of Trade, Industry and Competition. Two experts on Performers’ Protection legislation, one from the University of Stellenbosch and one from the Companies and Intellectual Property Commission, addressed the Committee in light of the technical challenges of such legislation. The experts enlightened the Committee on the technicalities relating to performances of works, treaty obligations, the similarities to personality rights, the relationship between copyright and performers' protection, and how the current legislation was retrospective from 30 December 1967. Performers’ Protection was a type of copyright in effect, but it addressed the person and so was more akin to personality rights. Each performance had its own copyright and was independently protected. The law automatically created an intangible property item. Protection was offered for 50 years after a performance took place or after the recording was made. Certain conditions had to be met to obtain protection but scripted works, folklore and traditional works were generally automatically subject to copyright. The Companies and Intellectual Property Commission was the regulator of the collective management of writing and sound recordings. Legislation had been amended so that performers also became the beneficiaries of the collective management rights. The Performers Protection Act of 1967 was secondary legislation and it was the South African national law that complied with the World Intellectual Property Organisation’s Rome Convention of 1961 and to a certain extent with the World Intellectual Property Organisation’s Performances and Phonograms Treaty, 1996, especially on collective management of rights in sound recordings. The Performers Protection Act was a piece of legislation specifically for performers to ensure that their performances enjoy protection from exploitation.
Members noted the absence of litigation in respect of the Performers’ Protection Act and asked if the professor had observed any gaps or lack of protection in the Act or the field of performers. Why did the Copyright Act seem more important than the Performers Protection Act? Was such a distinction not problematic as it seemed that all legislation should be primary? Did the law of contracts overpower the rights of performers? What did they have to do to make sure the legislation remained primary despite the law of contracts being central to the agreements? Was there no way to mitigate the negative effects of contract law?
On a practical note, Members enquired whether the presentation that day was a performance and whether the consent of the presenters was necessary should they use the presentations to advise provincial legislatures. How would one know if a performer had been pushed or intimidated into assigning rights instead of giving a licence? What protection could be guaranteed concerning that situation?
The Department presented an exhaustive briefing on the background, the motivations for the Amendment Bills, the processes followed to date, the President’s reservations, and the contents of the Bills. The Department took the Committee through the various assessments undertaken, the early drafts of the Bill, and addressed amendments in fine detail before sketching recent events. The majority of the feedback or responses from the public about recent amendments pointed to the unintended consequences of some of the proposed changes. Ultimately, the Portfolio Committee on Trade, Industry, and Competition adopted its report on the Bills on 8 June 2022 and the National Assembly adopted the Bills on 1 September 2022 before referring them to the NCOP for concurrence.
Members asked why further research on the definition of broadcast was necessary when there was a definition in the Bill. Had the amendments been put to the public and were they part and parcel of the consultative process? Was the standard contract proposed in the Bill contrary to the freedom of contract? How were the two reconciled? Was trade a concurrent matter according to the Constitution? If the Committee and provinces were not bound by the President’s reservations, what would happen if the public called for the inclusion of some of the issues about which the presidency had reservations? What if the NCOP and parliamentary processes endorsed those views?
The Legal Advisor informed the Committee of the technicalities involved in re-tagging Bills from section 75 to section 76 and explained what was expected of the Committee in respect of the section 79(1) process. Section 79(1) dealt with the constitutional reservations that the President had raised but he had also raised reservations on several substantive matters as well, and also in respect of the legislative process. The Committee could not confine itself to the President's reservations because of the change in classification, or tagging, of the Bills which had led to a change in the legislative process. Things to consider in the Bills included the copyright exceptions which might constitute a deprivation of property and violate the right to freedom of trade, occupation or profession, and compliance with international treaties and the implications thereof. The facilitation of public involvement was critical. Concerning the court case involving aspects of the Copyright Bill, the Minister had not opposed the application as it related to the rights of disabled persons. The court had given the Department two years to rectify the manner which was a timeline well within reach as the Copyright Amendment Bill included specific provisions relating to the rights of persons with disabilities.
The Chairperson presented a programme for processing the two Bills which would end in mid-2023.
The Chairperson welcomed the panel members and all other attendees to the workshop.
He began with some background for the Members. The Bills were introduced to Parliament earlier and both the National Assembly and the National Council of Provinces had engaged with the Bills. At the time, they were tagged as section 75 Bills, but a year after being passed by both Houses, they were returned to Parliament by the President who had some reservations. The Bills subsequently went through the appropriate processes in the National Assembly and via the Portfolio Committee on the Trade, Industry and Competition and then they were finally passed by the National Assembly. One of the reservations of the President was the actual tagging of the Bills as he wanted them to be section 76 Bills so that provinces also participated in the process of making the law. The National Assembly agreed and re-tagged the Bills as section 76 Bills. That meant that, after receiving the briefing from the Department, the Committee would follow the process of advertising for public comment and brief the provinces so that they also took the process forward. Because the Bills were now section 76 Bills, the Committee was not going to focus only on the reservations, but would look at the entire Bills, as would the provinces.
As the Chairperson welcomed the panellists, he expressed the need to emphasise the importance of partnerships with higher education institutions to make SA’s democracy a highly functioning process. The development of such partnerships would enhance law-making. The workshop was an empowerment exercise to enable Members of the NCOP and Members of provincial legislatures to deepen their understanding of the Copyright and Performers’ Protection laws. However, the workshop was not dealing with the merits and demerits of the Bills. It was not a public hearing platform but a knowledge-sharing and empowerment platform. He emphasised that the general public would be invited to participate in the law-making process at a later stage. The provincial legislatures would also administer their own law-making processes. He hoped that the workshop process would enable Members to find a symmetrical pattern and a better understanding so that the final legislation would contribute towards the realisation of national policy outcomes. It also had to contribute to inclusive economic growth, to the well-being of society and to improve policy certainty to attract much-needed investment and to lubricate the creative economy.
The Chairperson emphasised that there was much interest in the two Bills. As soon as the Bills were passed by the National Assembly, some organisations were already making their own submissions to the NCOP. Some organisations had already sent their submissions to the Chairperson of the NCOP. The Committee was not going to consider them yet as it was not at that stage. He was just indicating the interest as he had never seen so much interest as in those two Bills. When the Bills had previously been considered in the NCOP, he was not the Chairperson of the Committee, but he had been a Member of the Committee and he saw the interest in the bundles of submissions received from the public. So, he was aware that there was much interest in the two Bills. The Committee would welcome submissions because they empowered the Members of Parliament. There were many observers on the platform and so he emphasised that the workshop was about empowering Members of Parliament and Members of provincial legislatures. Participation was not open to observers.
Adv Charmaine van der Merwe, Senior Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), was the facilitator. The first panel consisted of Prof Owen Dean, who had assisted at the workshop the previous week and is Chair of Intellectual Property, at Stellenbosch University.
Prof Dean received his BA LLB from the University of Stellenbosch and then a doctorate in copyright also from Stellenbosch. He was a specialist copyright attorney, with an emphasis in litigation with the firm, Spoor and Fisher, which is a leading intellectual property rights firm, and he was there for 48 years conducting in excess of 50 High Court copyright cases. He also set up and managed the Chair of Intellectual Property Law at Stellenbosch University as a professor. He was the author of the Handbook of South African Copyright Law which was a standard textbook on the subject and he was an authority frequently quoted by courts. He was the principal editor of Introduction to Intellectual Property Law, which is also widely used as a textbook in South African universities. He had published in excess of 100 articles in South African and international legal journals and he served for 20 years on the Minister's Statutory Intellectual Property Advisory Committee and as chairman of the Copyright Subcommittee, and he was also a principal draftsman of eight of the Copyright Amendment Acts, and also a speaker on copyright at numerous seminars, including on behalf of the World Intellectual Property Organisation (WIPO). He was also a member of the WIPO panel of arbitrators.
Presentation on Performers’ Protection Legislation – Prof Owen Dean
Prof Dean spoke on performances of works, treaty obligations, similarities to personality rights, the relationship between copyright and performers' protection and how the current legislation was retrospective from 30 December 1967.
Common law protected personality rights. Performers’ Protection was a type of copyright in effect but it addressed the person and so was more akin to personality rights. Each performance has its own copyright and is independently protected. The law automatically creates an intangible property item. Protection was offered for 50 years after a performance took place or the recording was made. Certain conditions had to be met to obtain protection but scripted works, folklore and traditional works were generally automatically subject to copyright.
Prof Dean added that he was aware of only one case of performance protection ever coming to the court, so either the law was not understood or even known to a vast proportion of performers or they did not see their way clear to try to enforce those rights. Perhaps in the future when the Act was amended, performers would feel more inclined to exercise their rights.
While the next speaker organised his connectivity, the Chairperson requested Members to pose questions.
Mr M Mmoiemang (ANC, Northern Cape) noted the absence of litigation in respect of the Performers’ Protection Act (PPA). Had Prof Dean observed any gaps or lack of protection in the PPA or in the field of performers? Could he assist Members to understand why the Performers’ Protection Amendment Bill (PPAB) had not led to litigation?
The Chairperson advised Mr Mmoeimang that the panellists had been requested not to speak on the merits or demerits of the Bill.
Adv van der Merwe introduced the second member of the panel, Mr Kadi Petje, a Senior Manager in Copyright at the Companies and Intellectual Property Commission (CIPC) as Members might know it. He had 18 years’ experience in the intellectual property field and had represented the CIPC in the Copyright Review Commission, which was established by the Minister of Trade and Industry in 2010. He remained part of the African delegation at WIPO and was currently part of the Department of Trade Industry and Competition’s team on the Bills. He holds both a BA degree and LLB degree and had done a lot of training on the subject matter. He brought a practical perspective, being involved in implementing the Acts.
Presentation by Kadi Petje, CIPC
Mr Petje explained that currently, CIPC was the regulator of the collective management of writing and sound recordings. Legislation had been amended so that the performers became the beneficiaries of the collective management rights as well. The Performers Protection Act of 1967 was secondary legislation and it was the SA national law that complied with the World Intellectual Property Organisation (WIPO) Rome Convention of 1961 and to a certain extent with the WIPO Performances and Phonograms Treaty, 1996, especially on collective management of rights in sound recordings. The Performers Protection Act was a piece of legislation specifically for performers to ensure that their performances enjoy protection from exploitation.
Mr M Mmoiemang (ANC, Northern Cape) noted that the Copyright Act seemed more important than the Performers Protection Act. Was the distinction not problematic? Should all legislation not be primary? Secondly, in respect of competing rights between various role players, could role players not be more elaborated to mitigate other players? He had referred to the systemic nature of challenges. A performer came to an agreement that there should be no amount paid until a certain point. Did the law of contract overpower the rights of performers? What did they have to do to make sure the legislation retained its primacy despite being central to the law of contract? Was there no way to mitigate the negative effects of contract law?
The Chairperson asked a practical question about the rights of Prof Dean’s performance that day, his consent, and the infringement of his rights. How would one know if a person had been pushed or intimidated to assign a right instead of giving a license? What protection could be guaranteed around that?
Prof Dean said that there were implied licenses as in the current situation where he had been told in advance that the performance or workshop was being broadcast and so when he agreed to speak, he gave implied consent to the rights. He said that there was no facility for a performer to assign or transfer rights because there was no such facility in the PPA. That could only occur in the Copyright Act.
He suggested that the note on the screen appeared because someone suddenly woke up to the fact that one needed such a notice in terms of the PPA and being mindful of the discussion. [NB All parliamentary virtual meetings/workshops etc. alert participants to the fact that the engagement is being recorded.]
Prof Dean responded to Mr Mmoeimang. He did not know why performers were not taking action to enforce their rights in the court, although the PPA was used almost on a daily basis when permissions were given and contracts were entered into to give permission. So it was not as if the Act was not being used, but what was clearly not happening was that performers were not taking action to enforce their rights in the court.
Copyright had operated in SA for 200 years up to 2090, but only 17 cases relating to copyright had gone to court. Immediately after his textbook was published, there had been a flare-up of copyright cases and there had been 75 cases in the past 30 years. There was no writing about Performers’ Protection legislation and very few people knew about the legislation and so there had only been one court case relating to the PPA.
Prof Dean explained that copyright and performers’ protection rights were equal, self-standing and one was not inferior to the other. The Berne Convention dated from the 1800s but it had not covered performers until a supplement of the Berne Convention was brought out covering aspects, such as performers’ rights, that had not been included in the original, or any subsequent, Berne Convention. They were known as neighbouring rights. But they were not inferior.
He said that the law of contract was not malevolent towards intellectual property rights or copyright. The manner of giving permission was via a contract. Giving or receiving permission was done via a contract. SA courts upheld the freedom of contract and people could set any terms but bargaining permissions came into play and well-known authors were in a stronger position than an unknown author. That was a situation of supply and demand. A lump sum payment was one way of buying rights. The rights holder had to determine whether it was better or more beneficial to receive an upfront payment or to earn royalties. A contract could also be drawn up offering a combination of upfront payment and royalties. The owner of the rights had the right to accept a contract or to determine the contents of the contract.
He said that competing rights was a difficult issue because in a musical performance, one could have rights to the lyrics, the musical score, and even a producer and a broadcaster could be involved, each with a separate contract. It was a complicated process but each permission had to be contained in a separate contract and that required a very skilled lawyer and perhaps even a collection society to assist the performer to manage the contracts.
Regarding Mr Petje’s presentation, Prof Dean noted that his emphasis was on films and audio-visual. They were the main types of performers, but he reminded Members that the legislation was not restricted to those types of performances. Poets, presenters, etc were also performers.
Mr Petje said that he would attempt to give a sort of an umbrella view of the matters that had been raised. Firstly, the copyright system was aligned with intellectual property but it was a foreign concept to the African continent. It started as early as 1886 through the Berne Convention, but when it was introduced to some of the regions across the globe, one had to look at the entire corporate ecosystem. To find copyright solutions, contributions from all the role players in the ecosystem were needed to create an intact integrated approach. One of the reasons is that market forces might dictate something quite opposite to what one wanted in law. In a sense, those rights were private rights in nature and the rights had to be managed privately by the rights holders. The only thing required, in his view, was continuous education and awareness about the rights so that the rights holders could understand how best to approach deals, but, at the same time, it was very difficult to determine which was a good deal, and which was not.
Mr Petje agreed with Prof Dean that performances should not be limited; they included recall performances and many others. He had just referred to those most often used. As a copyright office, time and again, his branch at CIPC advised rights holders to go for a license rather than selling the intellectual property rights. When a work was licensed, after the expiry of a licensing period, very often one found that the work was even more expensive. It also gave the writer the opportunity to review the contract at that time, unlike where the right had been sold, if at a later stage, it turned out that it was becoming even more commercially valuable. That meant its price might have increased. So he always advised licensing rather than outright assigning, but it would be naïve for one to say, licensing was always better than outright selling because each and every case depended on its own circumstances. The question of contracts was very difficult. When CIPC engaged the industry, the industry very often cautioned CIPC, saying one should not discourage the freedom to contract because those products, or works, had to be exchanged and the performer had to be able to attract commercial gains. If one saw that contracts were not necessarily benefiting certain categories of rights holders, the best way was to keep on educating the rights holders about the options that they might have in terms of dealing with the product that belonged to them. Some of the things did not necessarily reside in the copyright system but in the economic state of the country and should take into account the historical issues.
Prof Dean said that freedom of contract was extremely important because it allowed nuanced approaches and he was against any system that imposed on rights owners a requirement to earn only royalties; one size did not fit all. Education was very important because people did not know their rights.
The Chairperson asked who was responsible for education about those rights.
Mr Petje said that the Copyright Office should be the lead player but all role players had to be engaged. There was no super-department alone that could fix it. Other countries had IP policies. Rights holders should be encouraged to promote their works outside of the country as they could import the profits.
Prof Dean held a workshop for non-lawyers to learn something about IP. He had started a blog for articles on IP aimed at the man in the street. It was a small step at spreading the word about copyright.
The Chairperson thanked the presenters. He encouraged the provincial MECs to get copies of the proceedings and documentation of the previous week’s workshop as well as the current workshop so that they could hold workshops in their provinces. He encouraged Members of the NCOP also to review the work.
Prof Dean sympathised with the Committee and the provinces as IP was a complicated and unknown area of the law and it was a difficult subject for lawyers, much less non-lawyers. A judge once described it as a very technical subject. Legislators were faced with the problem where they were starting with a very complicated area of the law and being asked to look at amendments, which was equally complex and difficult, and they had to come up with the right results in the end. That was a very difficult task.
The Chairperson understood that several provincial Members would have to attend sittings in their legislatures that afternoon so he thought it appropriate to inform everyone of the processes to be followed in dealing with the Bills before the lunch break.
Processing of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill
-Briefing of permanent delegates in the NCOP: 18 and 25 October 2022.
-Briefings of delegates to legislatures in all provinces: 1 to 5 November 2022.
-Advertisements for input from the public to close on 27 January 2023.
-Public hearings to be conducted by the NCOP on 21 and 28 February and 7 March 2023.
-Provincial legislatures to follow their own processes in preparation for submission of negotiating mandates to NCOP by 9 May 2023.
-The Select Committee’s position to be consolidated and final mandates received from provinces by 16 May 2023.
The Chairperson noted that the timeframe was very tight and assured Members that the Committee would apply for an extension of time.
The Committee Secretary reminded the Chairperson that the dtic normally briefed the Committee on its responses to the submissions from the public. That briefing would have to be factored into the processes. She also informed the Chairperson that she had sent the presentations and the link to the recordings for the Copyright workshop and the current Performers” Protection workshop to the provinces.
After the break, the Chairperson moved into the formal part of the meeting in which the Committee would receive a briefing from the dtic and a short presentation from Adv van der Merwe on section 79 and the Blind SA court case.
The Chairperson explained that the Committee was meeting to receive a briefing on the two Bills that had been submitted by the National Assembly. The National Assembly had been restricted to the President’s reservations but the NCOP and the provinces were dealing with the Bills in their entirety because they had previously been section 75 Bills and the NCOP had not processed them in detail. They were now section 76 Bills because the presidency had thought that the provinces needed to be consulted on the Bills as they referred to cultural matters and to trade. The National Assembly had agreed to change the tagging of the Bills. He invited the Deputy Minister of Trade, Industry, and Competition, Fikile Majola, to commence the briefing.
Opening Remarks by the Deputy Minister of Trade, Industry and Competition
Deputy Minister Majola stated that, as the Chairperson had indicated, the Bills had already been taken through an extensive process in the Portfolio Committee on Trade, Industry and Competition and the National Assembly, but the President had expressed his concerns about certain provisions of the Bills. The Bills had been in the parliamentary process for a long time and there had been long discussions, including whether or not the National Assembly should advertise only the concerns that the President had raised or whether to go beyond the concerns that the President raised. The Department would take Members through that process. There had been quite extensive amendments and many technical changes. So it would take a while just to go through them, to indicate the intention of the Bills and then the changes that the Portfolio Committee had effected, working together with the parliamentary legal services and the Department.
The Deputy Minister clarified that he would not go into detail but would ask Dr Masotja to make the presentation and she would indicate which colleagues were present in the Committee meeting. He requested the Committee’s indulgence as the discussion on the Bills and the amendments were quite extensive, and they could take quite a while. At the end, he and the Department would be happy to take questions. They had to follow the law in the process of finalising the two Bills, but he was hoping that they would get to the point where the Bills could be passed by Parliament and sent back to the President of the Republic for his approval and signature.
Briefing of the Committee by the dtic
Dr Evelyn Masotja, DDG: Consumer and Corporate Regulation Branch, dtic, introduced the large dtic team on the platform which included officials from her branch, legal staff and also officials from the CIPC.
Adv van der Merwe explained that the State Law Advisor who had been assigned to the Bills had since retired and the two Law Advisors subsequently assigned to the Bills believed that they were unable to engage with the Bills at that late stage. She would attempt to advise the Select Committee, adding that the dtic had fully engaged its legal division and the dtic legal advisors were in attendance.
Dr Masotja informed the Committee that her briefing would be comprehensive, taking into account the background, the motivations for the Amendment Bills, the processes followed to date, the President’s remittance, and the contents of the Bills. She would be dealing with both Bills.
The amendments made in the Copyright Bill in terms of collective management, royalties, the Tribunal, and so on, were a direct result of the recommendations of the Copyright Review Commission (CRC), established in 2010, that the Copyright Act should be amended by adopting inter alia the right to communicate literary and musical works to the public and the right to make available copies of sound recordings; to allow the Registrar to take over the administration (as opposed to the withdrawal of accreditation) of any relevant Collecting Society; to allow for one Collecting Society per set of rights concerning all rights governed by the Copyright Act of 1978 (performance, needle time and mechanical rights); to allow for all music-rights Collecting Societies to fall within the ambit of the regulations issued under the Act.
Dr Masotja took the Committee through the various assessments undertaken, the early drafts of the Bill, and the President's concerns, all of which were attended to, before sketching recent events. The Portfolio Committee had called for public comment on the amendments that flowed from the President's remittance of the Bills. Some of the submissions by stakeholders did not support the amendments; some argued that the amendments went beyond the President's reservations although the amendments were in response to a consideration of international treaty obligations. Some of the issues raised by the public were substantive and that necessitated they be advertised and put forward for public comment. The majority of the feedback or responses from the public pointed to the unintended consequences of some of the proposed changes. Ultimately, the Portfolio Committee had adopted its report on the Bills on 8 June 2022 and the National Assembly adopted the Bills on 1 September 2022 and referred them to the NCOP for concurrence.
Dr Masotja presented the objectives of the Copyright Amendment Bill, the international treaties that informed the Bills, and the Amendments proposed in response to the President’s reservations. She concluded that all the President’s reservations were considered and many provisions were considered, however, due to their substantive nature and potential unintended consequences, the changes could not be made. Some required further research and policy consultations including definitions of technological protection measures, a definition of broadcast, ephemeral exceptions, and lawfully acquired personal use. More alignments were made on the standards of controls for using the exceptions, such as fair practice, the extent justified by the purpose, and including the name of the author as far as practicable.
Dr Masotja presented the objectives of the Performers’ Protection Amendment Bill which sought to amend the Act of 1967 to provide for performers’ economic rights; extend moral rights to performers in audiovisual fixations; provide for the transfer of rights and the protection of rights; extend the application of restrictions on the use of performances to audiovisual fixations; provide for royalties or equitable remuneration to be payable when a performance is sold or rented out; provide for recordal and reporting of certain acts and to provide for an offence; to extend exceptions from prohibitions to audiovisual fixation and sound recording and for the Minister to prescribe compulsory and standard contractual terms as well as guidelines for a performer to grant consent, and also to provide for further offences and penalties.
She then presented all the proposed Amendments to the Bills, explaining each Amendment in detail.
The Chairperson called for questions and comments on the briefing.
The Chairperson asked what aspects of the Bills had to be subjected to further consultation and research. For example, Dr Masotja mentioned further research on the definition of broadcasts. But there was a definition in the Bill. So what did that mean?
Mr Mmoeimang asked whether the amendments had been put to the public and whether they were part and parcel of the consultative process. Regarding the standard contract proposed in the Amendment versus the freedom of contract, how were the two reconciled? Dr Masotja had said that trade was a reason for making the Bills section 76, but he was not sure that trade was a concurrent matter. A last point was about the socio-economic impact assessment. Could the team share the study so that he could get a sense of the politics behind the amendments, although he was mindful of the challenges that were faced by the performers and the need to ensure the protection of intellectual property of all the players.
The Chairperson noted that the Committee and provinces were not bound by the President’s reservation but what would happen if the public came back on the same issues on which the presidency had reservations, such as fair use and retrospectivity, and demanded their inclusion? What if that were the outcome, the NCOP and parliamentary processes endorsed those views?
Dr Masotja stated that the definition of “broadcast” had been included in the Bill but it was a treaty issue and the Bill had to be aligned with the treaty and so the debate was regarding wire and wireless in SA. The wire and wireless debate was critical for further deliberations on whether to remove wire. So the recommendation was that to align to one of the treaties, wire had to be removed, but if one was left only with wireless, the deliberations talked to the implications of what that meant in the South African context. That decision to use broadcast or not was subject to treaty implications. But he was right; there had been a definition before. There was also a need to ensure that the same definition was incorporated in both Bills.
Dr Masotja responded to Mr Mmoeimang’s question about issues that went beyond the reservations. She had raised that point because members of the public were of the view that the amendments or the proposed changes went beyond the President’s reservations. The President listed particular subsections and provisions in his remitted letter, but the reference to the international treaties was not specific, e.g. digital rights for the public and computer programs were not on the list but they had treaty implications. The WIPO Copyright Treaty spoke to the public digital rights for computer programmes for public editions, so the public wanted that included. The point she was trying to make was that, in the Department’s view, none of the issues went beyond what the President had indicated in his reservations. He simply said that the Bill needed to ensure SA’s obligations in terms of international treaties. The Marrakesh Treaty, for instance, created a set of mandatory limitations and exceptions for the benefit of the blind, visually impaired, and otherwise print disabled and the Department had put related issues forward to the public for further consideration.
Concerning the issue of the standard contractual terms versus the freedom of contract, Dr Masotja said the thinking was not to interfere with the contractual rights of copyright owners, authors, producers and so on. The issue came up strongly because of the historical context in South Africa, where unfair contracts were part of the system and that situation seems to be prevalent even in current times. A new creator, a new artist, a new musician, or a new actor, actress did not know what to expect when it came to a contract, so whatever the performer was given, he or she signed that right away, not knowing what a contract should indicate. So, it was not to dictate actual contractual arrangements between persons; the emphasis was on policy and the fact of contractual arrangements and fair contractual practices. What happened between parties was confidential between them; the government did not get involved, but the government could set the tone by creating a framework. The intention was not to tamper with the freedom of contract.
Dr Masotja confirmed that trade was one of the areas of concurrency in the Constitution, likewise to cultural matters. Trade affected all areas, the provinces and national, and was raised in that context by the President. The socio-economic impact study that she was referring to was an actual study outsourced to a service provider and there was also the socio-economic assessment that was normally conducted by the presidency. The Department would make the studies available. The issue of fair use and fair dealing had to be looked at again, and whether to re-introduce retrospectivity. The Minister, in his presentations on the Bill, had looked at fair use in terms of the rights of consumers or users, and also the rights of the authors and the corporate owners. Everyone involved said the Department had to come up with policies that took into account where SA was on fair use and where the country differed.
Dr Masotja stated that the Bills had evolved during their time in Parliament. Concerning new directions, the Department would be guided by the Members in terms of the approach that the NCOP would like to take on those key policy positions. The Department would assess issues as transparently, as independently, and as objectively as it could and any relevant policy positions would be put forward. However, the final decisions would be dependent on the mandate of the provinces and the deliberations by the Select Committee. So there was an openness in terms of the Bills.
The Chairperson informed the meeting that he had consulted his Constitution and Dr Masotja was correct; trade was a concurrent matter.
The Chairperson stated that he would share the programme for processing he two Bills with the Department.
Presentation on Section 79 and the Blind SA Court Case
Adv van der Merwe, firstly, addressed the issue of the tagging of the Bills, especially in respect of the section 79 process. It was a technical argument as to whether they affected cultural matters, because the Bills in themselves were regulating a right, they were not regulating how that right could be explored and because of that, strictly speaking, the Bills should both be classified as section 75 Bills; that was why they were classified as section 75 Bills initially. However, the courts had said in a previous case that, if Parliament erred on the side of caution, and made a Bill a section 76 Bill, then the Constitutional Court would not be able to find that Bill unconstitutional, nor how the Bill was processed. Not every Bill should be a section 76 Bill but if Parliament was uncertain, it could do so. In that specific instance, and because the Bills were so contentious, Parliament had accepted the presidency’s reservations around the section 75 tagging.
Adv van der Merwe explained what was expected of the Committee, in respect of the section 79(1) process. Section 79 (1) dealt with the constitutional reservations that the President had raised and he had raised reservations on several substantive matters as well, as well as reservations also in respect of the legislative process. Joint rule 209 was applicable. The Committee could not confine itself to the President's reservations because of the change in classification or tagging which led to a change in the legislative process. The Select Committee might confer with the Portfolio Committee on Trade, Industry, and Competition if there were any concerns or questions that the Committee had. The Select Committee had to report to the NCOP as to whether it agreed with the amended Bill, or recommended rejection of the Bill. The Committee might also decide to amend the Bill before presenting it to the NCOP.
She pointed out that things to consider included the copyright exceptions which might constitute deprivation of property and violate the right to freedom of trade, occupation or profession. Compliance with international treaty and the implications thereof should be considered. The facilitation of public involvement was critical. There had been very extensive facilitation, and there were amendments made but the NCOP had an obligation to call for public comment and input.
Adv van der Merwe also discussed, on a very high level, the matter of Blind SA versus the Minister of Trade, Industry, and Competition. She highlighted the fact that the case concerned the current Copyright Act, and not the Bill. It was the Act itself that was before the court and the concern that was raised was that the Act did not provide for people with visual and print disabilities. So, although the Marrakesh Treaty spoke to visual and print disability, the SA Constitution required that the legislature consider equality rights. The court order to include those rights had been suspended for a period of 24 months, which would lapse in September 2024. There was sufficient time because the Bill was already before the Select Committee. The court indicated that if one could not have a format made that was accessible to one because of a disability, then the person’s enjoyment of the right to participate in a cultural activity of one’s choice was compromised. Adv van der Merwe had held a workshop with Blind SA to hear their views on the Bill. She believed that section 19D, which addressed disabilities was sufficient, but there might be other concerns that the Committee had and she could advise on possible ways forward to address those concerns and whether further amendments were required or not to meet the order of the court.
The Chairperson noted that the court had prescribed remedies to legislation. He asked if the court’s requirements should first be addressed by the National Assembly. What effect did the court decision have on the current Bills?
Adv van der Merwe said that it was the first time that a court decision had gone straight to the NCOP. If necessary, either the Select Committee or the Portfolio Committee on Trade, Industry, and Competition could prepare a Committee Bill if there were amendments that did not take the court requirements into account. There was sufficient time to do that.
The Chairperson asked how the dtic had lost the court case.
Dr Masotja requested the dtic Legal Advisor to explain.
Adv Marissa van Niekerk, Legal Advisor, dtic, explained that the instructions received from the Minister was to abide by the application because the Minister also believed that there should not be discrimination against people who were not able to access the materials. So it was not opposed and notice not to do so was filed.
Adv Kamba, Legal Advisor at dtic who had handled the case, concurred with Adv van Niekerk.
Closing Remarks by the Deputy Minister
On the Blind SA matter, the Deputy Minister assured the Committee that normally the Department would adopt a progressive approach on a matter such as that raised by Blind SA so the Department would have been ordered not to oppose the case. He was sure that the Chairperson would agree that it was the correct approach to adopt.
Deputy Minister Majola noted that Mr Mmoeimang asked what the President’s reservations were, but Dr Masotja had listed them. Initially, there were strong views to adhere narrowly to the President’s reservations but once the decision had been taken to re-tag the Bills, the Bills had been opened up. The process had to be finalised within the timeframe of the court judgement. The Department had noted the NCOP’s programme for processing the legislation.
As far as the Bills were concerned, there had been lots of water under the bridge. At the beginning, there were some views that the Department should just confine itself to the reservations of the President but Dr Masotja had explained to the Committee what happened concerning the implications of international treaties and she also referred to some of the things that came out of the public participation. He was very interested in hearing the advocate remind everyone about the commercial or trade position and the implications for the retail market. That was a very useful thing to know. So the process was quite open and the legislature was going to decide how to manage it. The Department would be guided by what the legislature decided on how about managing that process. He assured the Chairperson that Dr Masotja and her division would be very happy to return to the NCOP and assist further should the Committee have any requests or require more information concerning the process going forward.
Deputy Minister Majola was aware of the need to follow the processes of the legislature but he was also aware that the delay in finalising the Bills impacted on the lives of ordinary people; a balance was needed.
The Chairperson stated that the two Bills were very technical and Members were encouraged to review the recordings and the presentations. He requested the Parliamentary Liaison Officers and the permanent delegates in the NCOP to finalise the briefings in the provinces. The dtic would probably link virtually to those briefings but he did not want a delay in that part of the programme or the entire process would be delayed.
The Committee Secretary would request the provinces to provide their schedules so that the Chairperson could see that the briefings were planned for the following week.
The Chairperson thanked the Legal Advisor for the clarification: he had assumed that the Committee would only be dealing with the President’s reservation and not the two Bills in their entirety. The new clarity meant that everything was fresh, as with any section 76 Bill. The Committee would go into details in November; there were still two further meetings scheduled with the Department. From the following week, the Committee would be starting the next leg of the process, in terms of briefings to the provinces.
The meeting was adjourned.
Rayi, Mr M
Apleni, Mr T
Boshoff, Ms SH
Brauteseth, Mr TJ
Dangor, Mr M
Landsman, Mr ER
Londt, Mr J
Majola, Mr F
Mamaregane, Ms ML
Mathevula, Ms B
Mmoiemang, Mr MK
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