The Standing Committee on Finance, Economic Opportunities and Tourism (the Committee) in the Western Cape Provincial Parliament (WCPP) convened virtually to consider the negating mandates on the Copyright Amendment Bill (CAB) [B13D– 2017] and the Performers’ Protection Amendment Bill (PPAB) [B24D–2016].
After having considered the draft report on the negotiated mandate of the CAB, the Committee (via the majority) resolved to confer authority to the WCPP delegation in the NCOP not to support the Bill in its current form and called for the Bill to be redrafted in its entirety and to undergo the full legislative process, including public participation and a comprehensive socioeconomic impact assessment study (SEIAS). Reasons for not supporting the Bill included the lack of adequate research that underpinned the SEIAS report of the DTIC and the reluctance by the Department to make the report available to the creative industry. While not supporting the Bill, the Committee acknowledged that the objectives are sound but raised concerns that certain risks had not been carefully considered. A key concern relates to the Fair Use doctrine in the Bill that was not based on empirical evidence affecting the South African socioeconomic environment and that it was not addressing the peculiarities that are specific to different stakeholders in the creative industry.
The Minority View adopted by the ANC and Al Jam-ah, was in support of the Bill but with the consideration that concerns and submissions with opposing views on Fair Use raised by stakeholders during the public participation process, be taken into account.
After having considered the report on the negotiated mandate of the PPAB, the Committee (via the majority) resolved to confer authority to the WCPP delegation in the NCOP not to support the Bill in its current form and called for the Bill to be redrafted in its entirety and to undergo the full legislative process, including public participation and a comprehensive SEIAS. Reasons for not supporting the Bill included the poor drafting of the Bill and the overlap or duplication of provisions within the CAB.
The Minority View adopted by the ANC and Al Jam-ah, was in support of the Bill but with the consideration that technical amendments are made to improve certain clauses, as proposed by stakeholders during the public participation process.
The Chairperson stated that the purpose of the meeting was to focus on the negotiated mandate of the two Bills. She suggested that the Committee first work through the DTIC matrix in sessions of 20 pages at a time.
Consideration of DTIC responses to public submissions
Mr A van der Westhuizen (DA) asked for indulgence to allow Members time to organise the many papers before them.
Ms Zaheedah Adams, the Committee Procedural Officer, was tasked to present the matrix and pause for questions after every 20 pages.
Mr Van der Westhuizen indicated that he had difficulty accessing the document electronically due to load shedding. He was working from a hard copy of the Bill on which he made notes and asked to be guided in terms of the clauses in the Bill that were being worked through.
The Chairperson suggested that the report should be tabled in its entirety and the Committee should provide feedback later, given the clauses were not as clear in the matrix compared to the work done by the Committee.
Members agreed to the suggestion.
Consideration of the Copyright Amendment Bill (CAB)
Mr Van der Westhuizen raised some concerns in line with the feedback from the public participation process. The high volume of public input should not be ignored because it raised a number of concerns about the current draft of the CAB. Some of the comments are quite serious, e.g. requests for more clarity about the royalties that indigenous communities should receive. Although it is an Act of Parliament, it had not been signed by the President and could be referred back to Parliament by the President. He found it problematic to build on another piece of proposed legislation that had not been promulgated. The words ‘indigenous communities’ appear quite often in the CAB. He was concerned about the prescriptive nature of the CAB when it stipulates that the Minister must prescribe royalties although the Minister published the Bill for comment. It opens up the opportunity for the Minister to have a single percentage of royalties while the royalty issue is so broad and royalties must often be shared. People are sometimes not interested in royalties for a couple of years but intend to sell the rights to their works. Provision should be made for cash-strapped artists who prefer to have a bulk payment for their work. To prescribe the terms of the agreements that the copyright holders must enter into is too inflexible and might not be in line with the freedoms in the Bill of Rights. He proposed a review of the definitions. For example, inserting the word ‘reasonably’ before identified in the definition of orphan works would give more clarity regarding the identification of copyright and the owner of orphan works. This should help when it can be proven in a court of law that attempts were made to identify the author of the work. This is not provided for in the wording in the current document. An amendment to paragraph 6(a) was requested by some big role players in the entertainment industry who raised serious concerns about the sharing of royalties of literary and musical works. Section 7(b) provides for the Minister to prescribe the rate which takes away the freedom to negotiate and ignores the fact that some artists are entitled to ask for more royalties due to market forces. The Bill refers to recommended royalty rates that the Minister may amend. He found this problematic because the seller and the artist are liable to pay royalties contemplated to the author. In some cases, the seller might be the author but this is not provided for in the Bill. To prove the intention of a person is difficult, he proposed a redrafting of the paragraph in subsection 5(a) which refers to any person who intentionally fails to register an act contemplated or who intentionally fails to submit a report. Subsection 6(c) refers to the prescription of fines based on the annual turnover in the financial year immediately preceding the offence or the majority of offences of transactions to which the act applies. He argued that it would be difficult to determine the financial year of the transgression of the majority of the offences.
Mr Van der Westhuizen was concerned that the Bill was in some respects too prescriptive and might violate some of the constitutional rights in the Bill of Rights. If the parties that drafted the Amendment Bill and those involved in the public participation processes could engage in one more round of serious talks, it might avoid the current position where this piece of legislation might be taken to court and be challenged or the President might refer it back to the Department. When the Committee previously warned about the drafting of some of the clauses, it was ignored and the President reiterated those positions in his comments that were warned about. In his opinion, the President is again being placed in a difficult situation with this piece of legislation. He proposed that in terms of the negotiated mandate to representatives in the NCOP, the Committee recommends that the Bill be returned in its entirety for redrafting to address the problematic areas and that the Committee not support the adoption of this piece of legislation.
The Chairperson remarked that in terms of the programme, the deliberations on the stance of the negotiated mandate is to be reviewed. But she noticed the position on the matrix put forward by Mr Van der Westhuizen. Since the matrix had been tabled in its entirety, she allowed Members to put forward deliberations on the stance. She asked for further comments on amendments to the CAB.
Ms N Nkondlo (ANC) said she would not be commenting on the matrix but would share general comments on both Bills with the intention to get to the stance as suggested by the Chairperson. The absence of clarity around copyright and IP continues to present a serious challenge. Where there is legal and policy uncertainty for artists and those who produce knowledge that are not necessarily protected in terms of their own development in their works, compared to those who have the legal means that enable them to identify areas from which they could be exploited in their interaction and trade with others. This has been the practice since the apartheid era, which makes these two pieces of legislation critical for redress to ensure that the socio-economic rights of people are protected. The spirit in which the Committee should have the discussion in the absence of clarity is to consider that the old pieces of legislation are still enabling further exploitation of those that need protection. She appreciated the input received and the interest demonstrated by young people, particularly from indigenous groups, academics, and artists including those outside the provinces who had shown an interest. She emphasised that the process should not continually be delayed because it was posing a serious challenge. Instead, the Committee should propose that the Department heed the concerns raised by canvassing the matters with specific stakeholders to ensure that their particular concerns are addressed, e.g. appreciating the notion of Fair Use and a Freedom of Panorama clause raised by Wikimedia. The concerns around Fair Use in clause 12 must explicitly differentiate between Fair Use in relation to authorship of music composition and Fair Use regarding academic literary works. These issues should be factored into clause 12 under a subclause that seeks to ensure that Fair Use does not disadvantage those that produce knowledge because part of regulating knowledge production would be the licensing thereof. Copyright pertaining to scientific and technological inventions in addition to the creative and literature sectors should include IP. The formulation of clauses in the Copyright Bill must not hamper the exploration and innovation of new ideas by vague and over-flexible use of exceptions that could inadvertently expose creatives to IP infringements. One of the issues to consider is the field of technology. It was important for the Department to start conducting such studies because technology had taken over. The majority of young people in the public participation process had already been engaging on international platforms and sharing their works with international production houses. It was therefore important to strengthen the protection because the processes to enable new entrants into the market are unclear. It was also important that input from Members seek to ensure that the process, which had been taking so many years, is completed and to make suggestions of a time period because retaining the old legislation was not helping those that need protection.
The Chairperson reiterated the significance of what the Bill was aiming to achieve in protecting copyright to create jobs and opportunities. But she was concerned that the research that is meant to underpin the entire legislative process has not followed the necessary processes to ensure that the outcome of the Bill would ensure greater protection for performers and that it would create better opportunities. The industry has been trying on numerous occasions to engage with the DTIC to get an understanding of the SEIAS conducted in terms of this Bill. The Committee had requested this information at the Stellenbosch hearing and received a report that was commissioned prior to this legislative process having taken place. It did not provide a SEIAS to review how Fair Use would impact various stakeholders who would be affected by the changing copyright. In the last meeting with the DTIC, the Committee was informed that the SEAIS report was introduced in the Parliamentary process but the report was never shared with the industry. She found it problematic that the report had not been shared while so many in the industry had voiced concerns about the lack of a SEIAS. Having perused the SEIAS report, she found that it does not indicate how Fair Use would impact various key stakeholders in the industry, e.g. publishers, musicians, film and copyright professionals. The report focuses on the intended consequences but the detail about the current copyright situation in South Africa was not considered. Despite the six years’ worth of inquiry into whether research of this nature had been conducted and that no regulatory assessment on the copyright Bill was presented to Cabinet as a memorandum to approve the Bill, Cabinet approved the Bill to be introduced in June 2016. The SEIAS report was not finalised when the previous Minister, Rob Davies, introduced the Bill into Parliament, nearly a year later in 2017. The absence of the report when the Bill was submitted for approval resulted in a failure to comply with guidelines that were applicable in 2015. This breached the undertaking by the DTIC to support stakeholders with a regulatory impact assessment following the drafting of the Bill. She regarded the situation in which the Bill was being presented to the Committee as grave because the impact of the Bill on Fair Use in the creative and performance industry is unclear.
In response to the DTIC comments on the submissions received, the Chairperson made the following observations. Regarding the Wikimedia support for the Freedom of Panorama clause, she noted that in other countries, e.g. in France, Freedom of Panorama is allowed without adopting Fair Use, i.e. both can exist independently. She was concerned that in a number of detailed submissions, the Department did not engage substantively with the nature of the complaints. For example, in response to comments by Research ICT Africa on the role of technology in copyright, the Department stated that it would be considered for future amendments. She found the response unacceptable because this process was providing a platform for members of the public to make suggestions for better protection. In the age of AI, it is important to consider the role of technology in the legislation before the Committee. Not doing so, would be a missed opportunity to protect people considering the long periods between the two pieces of legislation coming into effect. The comment by Voices of Africa about the need for a digitised system to recognise copyright in order to prevent litigation and confusion was not properly addressed in the DTIC response. The Department stated that copyright is automatically secured and does not require registration. She found the lack of engagement on the substantive inputs received, troubling because stakeholders deserved the opportunity to be fully engaged considering the time invested to study the complex pieces of legislation.
Mr Van der Westhuizen voiced his support for the Chairperson’s comments. He cited the many international companies who, over the last couple of years, have chosen South Africa for audiovisual works, e.g. shooting of films and advertisements. The good reputation of South Africa could attract more artists and create more work which could lead to wealth and prosperity. Therefore, an urgent review of the legislation is needed. The Committee wants to be proud of the legislation that would steer and guide the creative industry. But the Committee should not pass this Bill due to time pressure, considering the aspects that were raised through the public participation process. He would be satisfied if the aspects highlighted by the court case were addressed but found it problematic that a number of other changes and problematic clauses are also being pushed through by the deadline of September 2023 set by the court for specific amendments. He felt it would be a mistake, which he hoped would be rectified.
Ms Nkondlo drew attention to the fact that Bill seeks to address reforms because the copyright Act of 1998 is outdated. A delay would keep out a number of disadvantaged artists. At this point, she was experiencing connectivity issues. On advice from the Chairperson, she agreed to submit her comments in the Chat function.
The Chairperson proposed that the Committee confers the authority of the WCPP to the NCOP delegation to support or not support the CAB Bill. She requested Members to assist with the report writing by submitting their detailed input to the Procedural Officer. She sought approval to proceed with the negotiated mandate.
Mr I Sileku (DA) referred to Ms Nkondlo’s comments about not delaying the piece of legislation. He felt that as legislators, the Committee should not be pressurised to complete the process. The Committee has the responsibility to ensure that the law is just and equitable to avoid the possibility of litigation by certain stakeholders. The needs of the people come first and whatever Bill is supported by the WCPP would be just and deal with the imbalances of the past. A situation should not be allowed that a Bill by virtue of the long process be rushed despite the issues that have been flagged and that need to be corrected. Public participation is an important part of the process and should not be rushed. Through the negotiated mandate, the NCOP would be requested to review the submissions and the Committee would then finalise it. The Committee should not be found in a position of wasting time.
The Chairperson read out the reply from Ms Nkondlo, i.e. South African law is far behind many countries in terms of development on a global level and technological advancement.
The Chairperson asked Members to confirm whether the Committee confers to the Western Cape delegation in the NCOP to support or not support the CAB with reasons. She requested Members to submit their feedback and other comments in writing to the Procedural Officer.
Mr Van der Westhuizen proposed that the Committee not support the CAB and that this view be relayed to the NCOP delegation.
Mr Sileku support Mr Van der Westhuizen.
Ms Nkondlo proposed that the Committee supports the Bill, taking into account the technical input and comments from some of the stakeholders.
Mr G Brinkhuis (Al Jam-ah) confirmed the minority view in support of the Bill. The grievances raised by stakeholders have been noted, specifically about the impact of AI on the Bill.
Consideration of the Performer’s Protection Bill
The Chairperson advised that the same process of deliberation be followed as for the CAB.
Mr Sileku said the two Bills ran concurrently and the comments made were similar, especially with reference to the SEIAS report which was raised as a concern by stakeholders in the public participation process. Although the Department tried to explain why the report was not publicly shared, it still raised concerns. Sharing the report would have created a better understanding of the risks and how they could be mitigated. He found it unfortunate that the Bill had been criticised for being poorly drafted. For example, some of the amendments in the CAB is a duplicate of some provisions, which could be problematic in the future. The equitable remuneration clause lacks specifics which lends it open to various interpretations and should be reviewed by the Department. He was not convinced that the international treaty would have a positive or negative impact, that it was relevant to other countries, or would disadvantage South African artists. He was unsure whether ‘extras’ could be regarded as performers as per the definition in the Bill.
Mr Van der Westhuizen noted a lot of overlap between the two Bills. Some of the input mentioned that the CAB should exclude sections that deal with aspects such as royalties of performers. The wording relating to royalties received for the execution of certain acts might need improvement. Based on the large number of submissions from stakeholders who indicated that they could not support the current Bill, the Committee could likewise not support the Bill until the real public comments have been addressed. He wanted to prevent what was happening in the mining industry where investments are taken away to other countries where it is easier to invest. The goal is to grow the economy and attract more performers but the Bill might create the situation for companies to invest in other countries where they find more freedom to negotiate. He stated that he could not support this Bill.
The Chairperson further unpacked her concerns about the lack of access to the SEIAS report. The SEIAS report was supposed to be tabled before Cabinet. She questioned what was presented in the Cabinet memorandum under Minister Davies. She was concerned that Cabinet might have been misled when the Department communicated Cabinet’s approval on its website in July 2016, which had since been removed. The media reported a forecast growth in the economy of 5% if the Bill was properly implemented. What was lacking in the statement, is the source of the information that was presented to Cabinet. The SEIAS document that was shared with the Committee, showed that much of the content was rehashed in the Bill. It is unclear that any research was done in compiling the document, particularly regarding Fair Use. As a result, she questioned the value of the SEIAS. She noted that DTIC was no longer relying on the 2014 report by Genesis Analytics or the 2011 study that was done by the University of Pretoria and was concerned about the lack of research underpinning both Bills. The economic consequences for those in the creative industry are therefore unknown. It was not enough to have a Bill that is forecasting positive economic outcomes without empirical evidence to support the estimation. Fair Use might be a successful doctrine in the USA but the socioeconomic environment differs from that in South Africa. Fair Use is not a common doctrine used in terms of copyright compared to Fair Dealing which is much more common. Fair Use leaves room for ambiguity and vagueness in the law while Fair Dealing provides clear definitions. This was of particular importance in South Africa considering the level of inequality where not many people have equal access to the courts. The implementation of the Fair Use provision might disadvantage some people because to get clarity on Fair Use in copyright, one needs to approach the court, unlike Fair Dealing which is clearer in the legislation. This was her underlying factor for not supporting the Bill and why it needs to be reviewed in its entirety with further research being conducted on Fair Use in our specific socioeconomic situation.
Ms Nkondlo said her colleagues should not assume that work on the Bill has started with this Committee. [Due to poor connectivity, the rest of her comments were unclear.]
The Chairperson requested Ms Nkondlo to submit her comments in writing.
Mr Van der Westhuizen said the Committee should relay its support of the objectives of both pieces of legislation but the concerns are too significant to be able to support the Bills at this stage. The objectives are sound but a review of the amendments has been long overdue.
The Chairperson agreed with Mr Van der Westhuizen, citing a number of cases where artists have not been able to bear the fruits of their labour. The Committee should ensure that legislation that proposes to support artists is based on empirical evidence and not by a policy driven by an ideology and that it empowers people. She requested Members to submit their detailed comments to the Procedural Officer to be recorded in the report. She asked Members to indicate with reasons, whether they confer the authority of the WCPP to the NCOP delegation to support or not support the PPAB.
Mr Van der Westhuizen requested that representatives in the NCOP be asked not to support the PPAB because it was too prescriptive. Certain risks had not been carefully studied and quantified and might work against the objectives stated in the Bill.
Mr Sileku concurred with the view not to support the Bill based on the concerns that he had voiced earlier.
The Chairperson allowed the Procedural Officer time to draft the reports on the negotiated mandate.
[A transmission break of more than 30 minutes followed to allow for the reports to be compiled.]
Consideration of the Committee Report on the negotiated mandate on the CAB
The Chairperson read the full draft report on the negotiated mandate on the CAB into the record. In principle, the Committee conferred authority to the WCPP delegation in the NCOP not to support the Bill in its current form and called for the Bill to be redrafted in its entirety for the reasons discussed above. The Minority View to not support the Bill is noted.
The Chairperson allowed Members the opportunity to make proposals for amendments while the Committee Secretary scrolled through the report.
Mr Van der Westhuizen suggested that the legislative process in terms of consultation and participation should be addressed and not only the redrafting in terms of the wording of the Bill.
The Chairperson agreed and added that the process should include a comprehensive economic impact assessment.
Mr Van der Westhuizen proposed that a date or link to the News24 article be included in the report.
The Chairperson replied that there is a footnote to the News24 article.
Ms Nkondlo referred to the News24 article and the critique in the following section. She asked how the choice is made between opposing references to substantiate the stance of the Committee, e.g. by using the News24 article and ignoring the Fair Use article by Dr Nicholson. She asked how the bias could be explained.
The Chairperson replied that the word bias might not be appropriate. The article suggested that Fair Use could have unintended negative consequences in terms of job creation in the industry. One of the concerns raised in the Committee is the lack of a SEIAS on the different stakeholders within the industry. The current SEIAS was not clear on this matter. She noted that Dr Nicholson’s comments have been captured in the Minority View section of the report.
Mr Van der Westhuizen proposed that the report be adopted. He suggested that relevant references to sections of the Bill be included to make it clearer for readers of the report.
Ms Nkondlo asked why her comments about the CMO’s (Collection Management Organisations) have not been included in the submissions.
The Chairperson replied that it might have been an omission.
The Committee Secretary added Ms Nkondlo’s comments as requested.
The report on the negotiated mandate for the CAB was subsequently adopted.
Consideration of the Committee Report on the negotiated mandate on the PPAB
The Chairperson read the full draft report on the negotiated mandate on the PPAB into the record. In principle, the Committee conferred the authority to the WCPP delegation in the NCOP not to support the Bill in its current form and called for the Bill to be redrafted in its entirety and undergo the full legislative process, including public participation and a comprehensive socioeconomic impact assessment for the reasons discussed above. The Minority View to not support the Bill is noted.
She allowed Members the opportunity to make proposals for amendments while the Committee Secretary scrolled through the report.
Ms Nkondlo requested that the same changes made to the Minority Views in the CAB report be copied and pasted into the Minority View in the PPAB report.
The report on the negotiated mandate for the PPAB was subsequently adopted.
Actions and resolutions
Mr Van der Westhuizen, on behalf of the Committee, expressed his gratitude to the public who participated in the process. The Bills solicited many inputs. He was grateful to the staff for arranging all the public participation events and for summarising the input. He congratulated the staff for a task well done. He thanked the Chairperson for keeping everything together and for assisting the Committee to get to this point. He asked that a resolution be put on record that while the Committee was not supporting these Bills, it believes that a revision was long overdue. This round of the process did not meet all the expectations.
Ms Nkondlo held a different view. The spirit of putting legislation as a measure to impose different political views becomes important. These Bills are important to reform an old system to assist the new dispensation and help local artists. She sought clarity about the process of sharing the Impact Assessment report received from DTIC because many people have not been able to access it. She wished to circulate the report through the Public Outreach Office. She enquired about the extent to which the Provincial Economic Department would be able to raise awareness. She noted a fair amount of interest amongst young people in the public participation process. She, therefore, proposed that the Committee approach the Provincial Department to host workshops that would equip young people with an informed view about copyright, especially those at the lowest ladder of society.
The Chairperson acknowledged that the Provincial Department has an important role to play but argued that, as the custodian of the Bill, the DTIC should play the leading role.
She confirmed that the SEIAS report was received and requested the staff to circulate the report amongst Members.
26 May 2023 was scheduled as the date for the final mandate.
She thanked everyone involved in the process who had to apply their minds to the difficult subject matter. She thanked the Procedural Officer for her assistance in the process and expressed appreciation for the input from the public.
The meeting was adjourned.
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