The Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment, and Labour met on a virtual platform to consider the responses of the parliamentary Constitutional and Legal Services Office and the Department of Trade, Industry, and Competition to the provincial negotiating mandates in respect of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill. This was a continuation of the previous meeting.
The Senior Parliamentary Legal Advisor presented general comments relating to drafting, public participation, indigenous law, and constitutionality. The allegation of a lack of public participation was firmly rebuffed by the Legal Advisor who also commented that the Committees had to carefully consider all inputs but might arrive at a decision that differed from the ones submitted by the provinces. The indigenous and cultural content and the constitutionality of the Copyright Amendment Bill had both been fully addressed earlier in the course of the drafting and public comment process and the concerns were addressed fully. Matters were raised in respect of virtually every clause in the Bill. The Legal Advisor had prepared slides that presented a clause-by-clause response. There were far fewer issues raised in response to the Performers Protection Amendment Bill. One of the provinces suggested that the Bill should be explicit on how it was going to apply to foreign artists and production companies, as it might encourage infiltration by foreign companies and artists. The response was that the criteria in the Bill did not focus on where the performer was from, but where the performance took place and the Act applied to all performances in South Africa. Another province was not happy with definitions in the Bill being cross-referenced with the Copyright Amendment Bill. The response addressed the method of drafting to ensure that when the Copyright Amendment Act was amended, the cross-referencing meant the Performers’ Protection Amendment was automatically updated.
The Department responded to the policy issues raised by the provinces. The Deputy Director-General presented a relatively brief scanning of particular areas where the Department prioritised policy. The overview revealed that the provinces had requested that provision be made in the Bill for various issues that were already addressed in the Bill. Some provinces raised implementation-related issues that could not be addressed in a Bill while other provinces commented on the mandates of other national departments and other organisations that were in no way related to the Bills per se. Certain themes were recurring, such as fair use, fair dealing; 25-year reversion rights; powers of the Minister to issue minimum contract standards; orphan works, remuneration/royalties, collecting societies, definitions, regulatory impact assessment, and persons with disabilities. A few provinces had repeated issues from individual submissions made in the public hearings and the documents contained much repetition. Those submissions were not addressed individually as they were numerous and generally the same submissions that had been submitted to the Portfolio Committee in the National Assembly. New Amendments proposed by provinces were addressed both in terms of merit and in terms of what it would mean for the legislative process, considering the implications and consultation processes as well as possible unintended consequences.
A Member asked how a case currently in a South African court dealing with stolen material that was copyrighted would impact the legislation and how the Bill would impact the court case. Another Member asked if there was an explanation for why all provinces, except one, were giving unequivocal support to the Bills but raising numerous issues about them. Why did the Department support certain proposals for change but then say they could not be implemented as they would require a new legislative process? If the submissions were so good, why not include them while the Committee was busy with the process? Did that not in itself create a window of opportunity for litigators to say even the Department had conceded to the point? Did section 40 not limit the powers of the President?
There was discussion about the Senior Legal Advisor’s involvement with the Bills from the very beginning as well as a request for an independent legal opinion.
The Committee agreed to a legislative timetable that would lead to voting on the negotiating mandates on 20 June 2023 and engaging with the final voting mandates and the report to the House on 5 September 2023.
The Chairperson greeted Members and delegates as well as Dr Evelyn Masotja, Deputy Director-General for Consumer and Corporate Regulations in the Department of Trade, Industry and Competition (DTIC), and Adv Charmaine van der Merwe from the Constitutional and Legal Services Office (CLSO) in Parliament. The Committee would discuss the responses of the CSLO, as well as the DTIC on the negotiating mandates which he had been hoping to have done the previous week, but due to time constraints, it had been decided to amend the legislative programme.
The Chairperson indicated that he would be leaving early but that he would like to address the legislative programme which had been amended. There was a proposed meeting date in July after the Committee had returned from the study tour and he wanted to request Members to make themselves available on that date.
Mr M Dangor (ANC, Gauteng) told the Chairperson that the Committee did not have final mandates yet so the Committee just needed to urge provinces to send their final mandates in as soon as possible for Members to consider them. The Committee had expressions of support or non-support, but not the final mandates as yet.
The Chairperson explained that provinces could not provide the final mandates until the Committee had sent its responses which is why the Committee would be meeting on 13 June and 20 June 2023. Thereafter, they would have a product to send to the provinces so that the provinces could develop the final mandates. The day’s meeting was to engage with the responses of the Department and the CSLO to the negotiating mandates. The meeting was a continuation of responses to the negotiating mandates. It was a response to the provinces’ engagement then the Committee would get responses to the further engagement and that, he hoped, would be on 25 July 2023. He requested that Members made themselves available to consider the responses on that day.
All Members present agreed to make themselves available.
Legislative Programme for the Performers Protection and Copyright Amendment Bills
6 June 2023 – Continuation of engagement on responses to CLSO and DTIC.
13 June 2023 – Voting on Negotiating Mandates on the Performers’ Protection and Copyright Amendment Bills
20 June 2023 - Voting on Negotiating Mandates on the Performers’ Protection and Copyright Amendment Bills
25 July 2023 (Recess) – Tabling of E-list on the Performers Protection and Copyright Amendment Bills
5 September 2023 – Final Voting Mandates on the Performers’ Protection and Copyright Amendment Bills;
Consideration and adoption of the reports on the Performers’ Protection and Copyright Amendment Bills
The Chairperson stated that, in principle, Members had agreed to meet on 25 July. He asked if there were any comments or questions for clarity on the responses by the Department as well as by the CLSO of Parliament.
There was no response.
The Chairperson requested Adv van der Merwe to facilitate the process by refreshing the minds of Members.
Adv van der Merwe stated that there were first some general comments relating to the drafting, public participation, indigenous law, and how that affected copyright and general comments on the constitutionality and that the Committee could not oust section 36 and then she went through her slides clause by clause.
In response to the claim that the Copyright Amendment Bill (CAB) was poorly drafted, Adv van der Merwe explained that both Bills had gone through extensive drafting exercises involving both drafting and subject experts. Details were provided. The claim of a lack of public participation was firmly rebuffed by the Legal Advisor who also commented that the Committees had to carefully consider all inputs but might arrive at a decision that differed from the ones submitted. Other issues raised by provinces included the indigenous and cultural content and the constitutionality of the CAB. Issues were raised in respect of virtually every clause in the Bill and the Legal Advisor had responses for all questions raised. These were detailed in the presentation of 53 slides.
There were far fewer issues raised in response to the Performers Protection Amendment (PPA) Bill. One of the provinces suggested that the Bill should be explicit on how it was going to apply to foreign artists and production companies, as it might encourage infiltration by foreign companies and artists. The CLSO response was that the criteria in the Bill did not focus on where the performer was from, but where the performance was and the Act applied to all performances in South Africa. A province did not understand why definitions were cross-referenced with the Copyright Amendment Bill: the explanation was that there was then never an occasion when the definitions in the Copyright Amendment Act could differ from that in the PPA because when the CAB was amended, the cross-referencing meant the PPA was automatically updated.
Dr Masotja requested a chance to just flag the policy issues raised by the DTIC to assist Members. She would present quite a brief scanning of the issues she wished to flag because they were areas where DTIC prioritised policy. Indicating the voting pattern, Dr Masotja stated that eight provinces had submitted negotiating mandates in favour of the Bills; only the Western Cape was not in favour of the Bills. In her overview, she stated that the provinces raised issues that were already in the Bill, requesting they be provided for. Some provinces raised implementation-related issues that could not be addressed in the
Bills while other provinces commented on the mandates of other national departments and other
organisations that were in no way related to the Bills. Certain themes were recurring such as fair use, fair dealing; 25 years reversion rights; powers of the Minister to issue minimum contract standards; orphan works; remuneration/royalties, collecting societies, definitions, regulatory impact assessment, and persons with disabilities. A few provinces had repeated issues from individual submissions in public hearings and the
documents had much repetition. Those submissions were not addressed individually as they were numerous and generally the same submissions that had been submitted to the Portfolio Committee. The new amendments to the Bill proposed by provinces were addressed both in terms of merit and in terms of what it would mean for the legislative process, considering the implications and consultation processes as well as possible unintended consequences. She presented detailed responses in a presentation of over 50 slides.
The Chairperson thanked the presenters and opened the floor to Members to ask questions of clarity.
Mr Dangor mentioned there was a court case at the moment, dealing with the issue of copyright. It had to do with papers and copyright issues that were stolen from a particular company and it was their copyright. It was sold to a publication house, which then published the papers and the court cases for them to return those papers and not publish them any longer. How would that impact the legislation and how would the Bill impact such a court case?
The Chairperson asked if it was in a South African court.
Mr Dangor confirmed that the case was presently in a South African court.
Mr M Mmoiemang (ANC, Northern Cape) said that he was interested in a slide presented by Dr Masotja which showed eight out of nine provinces expressing support in terms of the interim mandate. One of the issues that she picked up was the provinces relying on interest groups and content from stakeholders as part of the mandate. He knew that the Select Committee had sent the Department's response to the Committee to the provinces so that could have led to what the Department was seeing in the interim mandates from the provinces. In addition, the stakeholders were all over. One could see that they had people attending all the public hearings in various provinces. He needed to understand why provinces were giving unequivocal support to the Bill but raising issues. The second point also related to what he suspected there was a concession because there were certain areas where Adv van der Merwe and Dr Masotja agreed with the proposal from Gauteng. Dr Masotja made the concession but then she said it would require another series of public engagements and would require a new legislative process. Did that not in itself create a window of opportunity for litigators to say even the Department had conceded to the point but suggested that it was a completely new legislative process and could only be addressed in the long term?
Mr Mmoiemang agreed that the manner in which Dr Masotja and Adv van der Merwe had fundamentally captured the issues such as the definition of "authorised entity" and the view expressed by Gauteng and KwaZulu-Natal. Their responses showed they understood the issues. The issue of extras that Gauteng and North West had raised and how they both responded to it had to be appreciated. They had responded to the issues around royalties. There was a sense of one size fits all and he was appreciative of how the Advocate and Dr Masotja responded to that. The issues around offences, integrity, and the need to comply with the BlindSA Constitutional Court judgment and the view that the amendments could be technical in nature, gave him comfort. He was assured by the manner of response by Adv van der Merwe and Dr Masotja to the issues around technological protection measures. Likewise, their responses to the views of the provinces in terms of the Performance Protection Amendment Bill impressed him as they responded comprehensively to the issues. So, his only concern was those two issues that he had raised around what appeared to be concessions that might open a window of opportunity for litigation.
The Chairperson invited members from the provincial legislatures to raise questions as they also had a right to ask their questions for clarity.
Mr J Londt (DA, Western Cape) admitted that he had said, somewhat tongue-in-cheek, that there were so many amendments and concerns raised by some provinces that the mandate might as well have been a negative and not a positive on the support for the Bills. He had also raised the question around Adv van der Merwe’s involvement with the Bills from the very beginning. As he had said, if one wanted three different opinions on something, one asked three different lawyers, and then one would get three different opinions. Being involved with the drafting and getting it through the National Assembly and getting it through the National Council of Provinces (NCOP), and then all of the valid concerns that had been raised, it was natural, and it was not negative on the individual, that there would be a defence of something that had been drafted and defended and pushed through the entire process. It was illustrated in the language used right at the start of the presentation: “the Bill was close to perfect”. But it was not close to perfect; there were too many concerns raised by too many stakeholders from the provinces to say that. It was an important piece of legislation and the Committee Members needed to be very sure about it. Because of the seriousness of matters, he suggested that the Chairperson should get an alternative legal opinion on the Bills to that of somebody who had been with the process from the beginning; driving it, pushing it, and defending it again.
Mr Londt wanted to give slight credit but also to raise a concern because the Committee had been in that situation before with the Gambling Bill when concerns were raised by the provinces but the Department had ignored all of those concerns and inputs and had basically sent back the same piece of legislation, and then it was rejected. Now it seemed to him that there should have been some learnings from that. But he wondered if the learnings were just how to push something problematic through the process. There was a willingness, e.g. on page nine to change minor wording by including "an entity" and "on a non-profit basis". And in another place, the wording was slightly amended. But quite often the presenters also said that good comments were submitted and that progressive amendments were made but Dr Masotja was not willing to include them. The proposals were kicked down the road to be included in a future process. But if the submissions were so good, why not include them while the Committee was busy with the process? That spoke to the ongoing perception that there was a tin ear for concerns that provinces raised and no concern for stakeholders' views. There was a push from the Department and the legal people to strong-arm the Committee into getting the Bills through. And it would blow back on all of the Members of the Committee. He reiterated his plea for the Chairperson to get an alternative legal opinion to the one they currently had because he was worried about the advice. It might be right and correct for the person interpreting it, but there might be other views that the Committee should consider. He noted that the changes agreed to were on page 38 and page 39.
Page 40 referred to a Northern Cape proposal that fines should be stipulated, for example, a minimum fine of R5 000 or a maximum fine of 1%. Mr Londt asked why the Department argued that it should not be linked to a monetary value because the Rand was not moving in the right direction. The Committee might differ on the fine but could something else be used? Some might not agree but, considering the international market, could a fine not be linked to the dollar? He was just using that as an example of innovative thinking. There seemed to be a willingness to make cosmetic changes but not substantive changes.
One thing that worried Mr Londt was on the bottom of page 44 where it said the Act was called the Copyright Amendment Act 2017 and it came into operation 24 months from the date of publication in the Gazette or an earlier date, fixed by the President by proclamation in the Gazette. If the President did not sign it into law or make the proclamation, then as it read, 24 months after the publication in the Gazette, it just came into effect. He did not think that was the right way of doing it. It took away the power of the President to say that the Bills were problematic. He was wondering if it had been brought in because the President had already referred them back. The perception was created that whoever was pushing the Bill wanted to remove any obstacles and, bluntly, the person saw the presidency as an obstacle because the President had referred the Bills back the first time. So it was taken out of the President’s hands. At the bottom of page 51, was again an insertion, which he, for lack of better wording, called cosmetic changes and not substantive changes.
Mr Londt added that there were quite a few changes where the Department acknowledged that the points needed to be brought in, but the officials backtracked after engaging with Advocate van der Merwe. That spoke again to the concerted push to get the Bills through without listening to anybody. On page seven or eight, Dr Masotja indicated that provinces had received the socio-economic impact assessment. He wanted proof that it had been submitted to the provinces because his information was that, despite requesting it, it had not been provided. There was a discrepancy if the Department said it had been provided and the provinces said they had not received it. The Committee should look at that. Further on, under the definition of dramatic work (page unknown) the Department noted a concern and supported the change but showed the middle finger to the entire process by saying, after an engagement with the advocate, that nothing would be done about it. Dr Masotja said that the matter should not be rushed but if there were an agreement on amendments, they should be made and not kicked down the line.
He said that on page 17 of the presentation by the Department, it was recommended that the powers should go to the Minister. Any legislation should be written not just for good Ministers; it should also be written for bad Ministers. If something was left open for interpretation, it was open to manipulation. So that was a concern. Then at the bottom of page 22, it came back to what he had said earlier, the Department said that the issue should be considered during the next round of amendments. Again at the bottom of page 23, the Department said the amendment was important, but it would not do it; it would be future maintenance. And again on page 26, there was a complaint about the timeframe to do the new research. That was a trend throughout the acknowledgement of valid inputs and problems with the legislation, but every time they were sidelined. Also on page 32, there was another recommendation that the Department said must be amended. Mr Londt thought that even if the proposal were substantial, the Committee should go ahead and make the amendment if it would make the poorly written legislation better.
Mr Londt noted that on page 34, the Department said that further assessment had to be done before the point could be included. Before the Committee went ahead, it should do those assessments, find out what the impact would be, and then include something that everyone was comfortable supporting. That recommendation came from both Mpumalanga and KwaZulu-Natal and, again, a provincial recommendation was just being pushed to the side. Referring to the bottom of page 35, he agreed that there was a risk that as technology changed, the legislation would become redundant and would need constant updating. However, the Department contradicted itself by arguing against solid changes because it should be included in future amendments, and at other times the Department said it had to be included. That was what he had argued from the very beginning,
Mr Londt referred to the section on artificial intelligence. The first slide on artificial intelligence said the Department noted the positive inputs from the provinces, but then the Department said it needed to bring it in a future amendment, kicking the can down the road, and saying it must be reviewed for the next legislation. But the Committee was busy with legislation. It should be done properly and not kicked down the line. Slide 46 said the Department could not predict the impact on the provinces, which was exactly the concern raised, specifically by the Western Cape in its submission. The Department should be able to back up its Bill with empirical evidence, making a solid prediction on the potential impact on the provinces and include that. And yet again, the Department acknowledged that it could not make that prediction, but it wanted to include certain things in the legislation. Under the definitions a point in the second bullet point that was supported by DTIC but not for the present; it was supported for the next round. And it spoke again to rushing something instead of doing it properly. That was the theme throughout the presentations. The Committee had an opportunity to do something to correct the Bills and it should make sure it did not do a half job that was going to come back and bite the Members of the Committee, not only now, but going forward as individual lawmakers, as well as biting an entire industry.
The Chairperson sought to clarify some legal issues. Firstly, whenever a Committee dealt with legislation, it would have a legal adviser from the legal unit of Parliament. Advocate van der Merwe was not somebody external; she was a legal adviser from Parliament. She advised the Committee and it was up to the Committee to accept the advice or not. She had a particular legal view on the aspect of the legislation that the Committee was dealing with. The legal advisors did not push a particular view on content per se: they based their advice on legal principles. It was up to the meeting whether it took that advice or not. Even with the National Gambling Bill, it was normal that there would be times when there were differences between the NA and the NCOP in terms of the legislation. The mandates that came from the provinces might not be in support of what the NA had supported. That was why the Constitution had the provision of a mediation committee in anticipation that there would be those differences. It was the Members of the Committee who would decide in the next three meetings, not Advocate van der Merwe or the Department. They might be putting their responses in terms of the presentations by the stakeholders and the presentations by the provinces, but as of the following week, the Committee would be going clause by clause, and Mr Londt could raise his views about each clause. The Committee Members would decide on the negotiating mandates, not the Department, perhaps agreeing with some of the points raised by the Department and the CLSO and agreeing with some of the issues raised by the provinces. And then there would be a package that went to the provinces. There would be nothing wrong if the provinces came back and said they were voting with the national government. One did not blame provinces for their views; those were their views and they were accommodated in the Constitution. Sometimes they voted against a Bill; sometimes they voted in support of a Bill. When the Committee sent the product to the provinces, it engaged with the negotiating parties. And then the province would decide. That was the process.
Mr T Brauteseth (DA) welcomed the way in which the Chairperson had conducted the proceedings right from the word go. He had made sure that the Committee had had multiple engagements, but he wanted to support Mr Londt in his comments about a legal opinion, and it in no way was intended to disrespect Adv van der Merwe. As somebody with a legal background, and he understood that Mr Mmoiemang also had a legal background, he could say that it was very seldom that any persons in the legal fraternity would have a problem with somebody else advising on any legislation, just to see if a fresh set of eyes could pick up any problems that somebody else might have missed. Everyone was, after all, human and those things could happen. He supported Mr Londt in that it might be a good idea to solicit inputs from external legal Practitioners who were familiar with that field of law to give their input. That would be in line with the Chairperson's very detailed, very transparent, and very wide-ranging process of bringing in various points of view on the two Bills.
The Chairperson asked Mr Mmoiemang to take over as Chairperson when he had made his input as he was leaving the meeting for a medical appointment.
Mr Mmoiemang responded to Mr Brauteseth's subtle comment which was an attack on Adv van der Merwe. He had to deal with it as it made him very uncomfortable to cast aspersions on the parliamentary staff because they did not have the right of reply within the rules of the House, although they had recourse through the Powers, Privileges, and Immunities of Parliaments and Provincial Legislatures Act. He had to express that view.
Mr Londt did not want Mr Mmoiemang to put words in his mouth; he could speak for himself. He clarified that in no way was there an attack on Adv van der Merwe by him or Mr Brauteseth. He did not appreciate Mr Mmoiemang phrasing it in such a way – he should know better. What he did ask was that the Committee obtained another view, another set of eyes on the Bills, and have that opinion served before the Select Committee. If it was the same, then it was fine. It was his job as Chairperson to ensure that Members obtained inputs that would allow them to make the best possible decision. It was quite clear that a request had been put forward and now it was in his hands to decide whether he was going to completely disregard Committee Members who had put forward a constructive, workable way of going forward, or not. There was a massive difference between the two approaches put forward by Mr Mmoiemang, Mr Brauteseth, and himself.
Mr Dangor supported the Acting Chairperson. Unfortunately, it did seem to be an attack on a person who had drafted the original legislation, reviewed the original legislation, and described it as near perfect. It could be considered an attack but he hoped it was not. At the moment, the Committee was dealing with the substance that had come from the provinces and the substance that the Committee was going to send back to the provinces. When they came back with a response the Committee could take other considerations into account. But he thought anticipating what the provinces were going to say was a bit challenging.
The Acting Chairperson asked Adv van der Merwe and Dr Masotja to respond to the input.
Adv van der Merwe responded to Mr Dangor’s question on court cases. Only when the Bills were made operational, would they be applicable. So in other words, any court that currently sat with copyright or performance protection issues before that court had to consider the Act as it read currently. The Bills would apply prospectively. There was an interpretation, a law, that was against a retrospective or retroactive application of legislation because that created uncertainty in the law and that could affect the rights of people. So when a court looked at a challenge before it currently, it would apply the Act as it was before the Amendment. And how court cases would affect the Bill was demonstrated in the BlindSA case, and she was also answering Mr Londt in respect of the question about matters where new proposals were made for new inclusions in the Bill but the recommendations were they should go to the next stage of review. The BlindSA judgment gave Parliament 24 months to rectify the concern with the Copyright Act as it read at present and which did not provide for persons with a disability. The Bills were already addressing the matter of persons with a disability before the court made its judgement and that was why she had recommended that the Committee take into account the court's judgment. It necessitated minor technical changes to comply with exactly what the court wanted, nothing substantive. If another court judgment came in e.g. to do with artificial intelligence, that was not something she would have recommended to the Committee. Development of legislation was informed by the development of a policy and that could easily take two to three years, sometimes as in another Committee on the Muslim marriages, the policy had taken almost 20 years to develop. Policy development was not always quick. And the only reason she recommended the BlindSA judgment to the Committee was that there was already a policy on the matter. That was why she recommended that the Committee should consider the court's judgment; otherwise, she would hesitate to recommend any other judgment from a court be taken into account in the Bill. Many questions could be raised on new policy matters. There were just so many questions on new policy matters and artificial intelligence, specifically. South Africa was working on a policy related to artificial intelligence and how that would operate. Copyright would be part of that because that was a big question in the artificial intelligence debate. Her advice would always be to be very cautious when a new policy was being proposed because there was a lot of work that went into a new policy so that there were no unintended consequences. So many times a Committee acting on inputs from the public decided to change one tiny word and then advertise that, the public response was that the impact of that one word being changed was significant. They had to be very, very cautious. How a court judgment would impact legislation, would depend on the nature of the judgment – whether it entailed new policy, or whether it was simply a matter of tweaking something.
Adv van der Merwe said that the Committee was in a negotiation process so there was more than enough scope for Members to listen to different advice. She was not present at the briefings of the provinces, so she was not sure what was said to the provinces specifically. She also wanted to confirm to the Committee that advice from CLSO was quality controlled within the Office and she did not express a view on policy. She could only provide inputs on legislation, parliamentary process, and legislative drafting principles. That is what she had tried very hard to restrict her advice to. She had not been the only legal adviser on the Bills. The Office of the State Law Advisor also advised on the Bills, especially on the constitutionality of the Bills. Parliament had also approached some legal experts and the public had provided some legal opinions. So hers had definitely not been the only legal opinion.
Adv van der Merwe said that she just wanted to respond in respect of clause 40. Perhaps Mr Londt was driving at the time because he said he was between two spaces. Clause 40 dealt with the short title and the commencement of the Amendment Act. The Bill was not there yet. Once the Bill is passed by the NCOP, any Amendments would have to be passed by the National Assembly again, after which it would be submitted to the President for assent. At that point in time, it was still a Bill, and clause 40 was not yet applicable and the President had all the rights accorded to him by the Constitution to send it back. The State Information Bill was sent back by the President twice in terms of section 79(1) based on new Amendments. So the President might consider the new Amendments to both Bills and might, on the basis of the new Amendments, refer the Bills back in terms of section 79(1). The President might also decide not to refer it back to Parliament because he had already referred it back in terms of section 79(1); he might refer the Bill directly to the Constitutional Court for a decision. So the President has those rights. The third right of the President would be to assent to the Bill. Only once the President had assented to the Bills, would they become Acts. And once they became Acts, conditions for making them operational had to be considered. The Constitution required that once the President had assented to an Act, he must publish that Act. Now, if the legislation did not have a clause such as clause 40, the Bill became operational immediately on publication. Once the President had exhausted his functionality and had decided to assent, then operationality had to be considered. So clause 40 did not interfere with the functions of the President at all. The Copyright Amendment Bill required that provisions be made for the collecting societies, the registration, the tribunal, and the new functions of the tribunal to become fully operational.
Adv van der Merwe said that she would definitely not suggest that the Amendment Act came into operation immediately. Some things needed to be sorted out in practice first. The Interpretation Act also provided that, where something had been assented to and was an Act, but not yet operational, the Minister could make regulations and so on. She proposed that once the President had assented and published the Act, the clauses dealing with BlindSA matters should come into operation immediately. That was her proposed wording in respect of the definitions and in respect of section 19D. The proposal from Gauteng was that once the Bills had been assented to and published as Acts, there should be a limit in respect of how long Parliament would give the executive to put measures in place for the Acts to become operational. So that was not interfering with the presidency or the executive because the legislature had the right to say when the legislation would become operational. Saying legislation would become operational by way of proclamation afforded the executive time to put that law into operation. However, nothing prohibited Parliament from saying that the Acts would come into operation on a particular date. There were many, many examples of similar clauses in that regard.
Adv van der Merwe stated that she had no objection to the definition of “dramatic work” being amended, but she was of the view that the Committee would have to advertise that Amendment. That was her only concern; she had been highlighting the legislative process in her response.
Dr Masotja noted that most of the questions by Members addressed the contradictions and the fact that DTIC noted some amendments that could be made and some good proposals from provinces but had stated that they should be pushed to the next process or held for future amendments. She explained that one of the things that DTIC had been criticised about previously was that it had not thoroughly considered issues. People were asking for impact assessment studies on each aspect of the Bill, e.g. fair use and the powers of the Minister regarding contracts, etc. which meant that the public, experts, and stakeholders acknowledged the need to do a thorough assessment of each issue raised. She agreed with Adv van der Merwe on doing full assessments before including new issues. She cited the example of how the DTIC had included the excellent Canadian concept of ephemeral rights in the Bill and how when it went for public comment, people pointed out that the context was not similar to the South African situation, the language used in the proposed amendment was not in alignment with terminology in SA legislation, and there were many unintended consequences. That section had to be removed. Other proposals such as including the three-step test in the law, adding "broadcast", etc., had all resulted in extensive debate and showed what a difference a single word could make. There were also other unintended consequences, such as non-alignment with international treaties.
As an official, she had to be transparent and acknowledge valid input. However, those suggestions still needed to be tested and researched in the same way everything else in the Bill had been checked, assessed, and consulted. One of the President's reservations was that there had been insufficient consultation on fair use and it had become a constitutional issue. All of the points noted as contradictions seemed like good suggestions, e.g. the artificial intelligence one, but there was work to do before including them. She could provide many examples of elements of the Bill being hotly debated, e.g. strong technological protection measures, where not only differing views but unintended consequences had resulted in changes, or additions, not being made. She assured Members that DTIC was not trying to push certain things. As Adv van der Merwe had said, some of the issues take time. The initial copyright review was in 2010 and since then there had been further engagements and further consultations. It was ongoing.
Dr Masotja moved on to the issue of the copies of the SEIAS (Socio-Economic Impact Assessment System) that were not made public. She explained that she had not provided provinces with copies of the SEIAS but where the provinces requested additional information, the DTIC had provided what it had. One province had requested DTIC to come and present the Bills. It had also requested studies and the SEIAS records, and the Department had provided what it had. However, in terms of the SEIAS requirements, she explained that the guidelines determined that the SEIAS had to be submitted to an authority, such as Cabinet or Parliament, but there was no obligation to submit it to stakeholders. The SEIAS informed the initial processes in Parliament, but where the documents were requested, DTIC provided them. She was not sure about the need to give proof of emails and so on, because she had responded to requests for the SEIAS and not just sent it out to everyone - she could make the documents available to the provinces if Members requested that as DTIC wished to support the process. She assured the Committee that the Department had followed procedure and had given different versions and copies of all assessments and research to Parliament.
Regarding the powers of the Minister in slide 17, she said that the focus was on section 8, the audiovisual works royalties, and suggested that section 8A should be retained, but some of the provinces were recommending that they should not retain that link as there should be a distinction. In sections 8A and 9A, the point was the cumbersome reporting requirements in those sections for royalties. But then in terms of the powers of the Minister in legislation, he was empowered to issue regulations and it was normal for the Minister to have such powers. Regulations were important. It was part of a Minister’s mandate. So in terms of the issues that were raised about the contract, many stakeholders raised concerns about his powers, but if there were a market failure, the Minister could intervene. That was where the government played its part: in market failure, when there were gaps, etc. And if there were no market failures or gaps, he could not issue regulations. When there was a need for further clarity, further support, or further protection, in alignment with the provisions of the Act, he could issue regulations.
Dr Masotja addressed the question of investment. The world was so dynamic and the economy so difficult, even the most amazing economist could not predict everything in the economy. There was an expectation that there would be an erosion of investment in South Africa because of the Bills. What if the opposite happened? What if they created an enabling environment? What if there were creativity and more growth and more freedom to express oneself and be innovative? She noted the comment that one could not even predict investment in provinces but suggested that there were things even the best economies could not predict. Ultimately, the Committee would make a decision and the provinces would make their decisions. The DTIC simply had to know it had given the best information it could. Mr Mmoiemang made a point about the role of the provinces in terms of working with other groups and information. The DTIC had assisted provinces as they had asked for input and had provided information to address concerns. It was part of the process. She trusted that she had clarified matters from her side.
Dr Masotja added that she supported stakeholders and they had made a good argument for further changes but she repeated her caution about the need to test new points. She liked the comment about learning and the need to correct oneself.
Mr Mmoiemang expressed his gratitude for the manner in which the team responded to the issues raised by Members. The process of negotiation was underway and the Committee had to await further processes by the provinces.
The Committee Secretary stated that the next meeting was on Tuesday, 8 June, and 13 June 2023 at nine o'clock.
Mr Mmoiemang asked Adv Shamara Ally from the parliamentary Procedural Office to respond to the matter of quality assurance by the Legal Services.
Adv Ally assured Members that, although quality control had already been dealt with by her colleagues, she could add that any documents prepared by CLSO officials were quality controlled. In the NCOP, a procedural adviser and then the NCOP Secretary would normally quality control a document. The same applied to Legal Services and her learned colleague, Advocate van der Merwe. She added that her colleague was very competent at what she did. In terms of getting an external consultant into the Committee at that point, it was the purview of the legislature to legislate and the Committee should be considering the parameters within which it was going to negotiate provisions. The concern was that if an external consultant was brought in at that point, there was no way of guaranteeing that the consultant would not influence the Committee in any particular way or that the consultant would be totally impartial in the advice that he or she gave to the Committee as there were very differing views on the Bill. So at that point, it would not be procedurally correct to appoint an external consultant. However, Parliament did have the internal capacity as well as the know-how to have the document quality controlled. Adv Zuraya Adhikarie, Chief Parliamentary Legal Advisor, could be asked, should the Committee require, to quality control the document. With regards to the Committee process, when considering the negotiating mandate, Members could only consider what was part of the mandate. No amendments could be required by the Committee which were not in the mandates. Members would vote according to their provinces for the relevant amendments.
Mr Mmoiemang noted that the meeting had been a continuing meeting emanating from the presentation received the previous week when the Committee had not had enough time to engage and seek clarity. He believed that they had sufficiently covered the matter and could allow the processes to unfold.
Mr Londt raised his hand. He had said so at the beginning and had said so more eloquently than others that, at no stage, were any aspersions cast on the individuals that gave their opinions. He appreciated the explanations on quality control. However, he did not want the Committee to hear only one opinion. External lawyers might, as Adv Ally said, have their own interests, but then he was not sure what quality control meant. He might have a different opinion on that. Was quality control just taking the opinion that was written by person X and accepting that it was fine? Everyone had to acknowledge that it was a controversial Bill and there would be different views, so how was it possible to get only a single view from – he would not use an individual's name - a particular department or unit? There should be other views to take into consideration before they made up their minds.
Mr Mmoiemang stated that the procedure for the Committee was clearly legislated. He was comfortable with the process applied and Advocate van der Merwe had indicated, in the first three slides, where the process had started, who the experts were that had been brought on board, and what had happened in the second round. The Committee should allow the provinces to finalise their mandates, and then allow the Committee to deliberate and take positions as provinces in that meeting. He was not going to give Mr Londt an opportunity because he had adequately canvassed his point.
Mr Londt objected stating that was not how Parliament operated.
Mr Mmoiemang and Mr Londt continued to argue about listening to Members and allowing additional comments.
Mr Londt placed it on the record that he had asked for a ruling on hearing other views.
Mr Mmoiemang stated that the request would be addressed at the next meeting.
Mr Dangor noted that the Committee had listened to the guidance given on the matter by the Chairperson, adding that the Secretary of Parliament had indicated that the process under discussion would be undertaken without the Committee having to request it. Could the Committee move on to the next point?
Select Committee Study Tour
The Committee Administrator announced that the United Kingdom leg of the study tour could not proceed because the UK Parliament would be on summer vacation when the Committee was on tour.
She made arrangements for the applications for Schengen visas and agreed to look into extending the dates for the visit to Germany. Insurance forms would have to be changed.
Mr Mmoiemang determined the minutes would be considered in the next meeting. He reminded Members that they were in a continuation meeting on the negotiating mandates. He declared the meeting closed.
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