Copyright Amendment Bill: Voting on Negotiating Mandates

Meeting report

The Chairperson greeted Select Committee Members, and acknowledged the presence of the Department of Trade, Industry, and Competition, Parliament's Constitutional and Legal Services Office (CLSO), as well as other guests on the virtual platform.

He indicated that the meeting may proceed.

CLSO Memo to the Committee

The Chairperson informed the Committee that it had approached CLSO and read the CLSO’s memo. The memo confirmed that the legal advice provided by Adv Charmaine Van Der Merwe was legally sound. It was also unanimous and there are no alternative legal views to the advice provided by Adv van der Merwe.

The memo further stated that it was not practicable or efficient to have multiple legal advisors on a project as this can create inconsistency and inefficiency.

Adv van der Merwe remains the most appropriate person with the relevant background, skills, and knowledge to best serve the Committee. Her thorough engagement and understanding of the issues related to these bills over the past period of six and a half years are beyond any doubt.

CLSO is committed to providing Parliament with advice that is in accordance with the basic values and principles governing public administration provided for in section 195, specifically that the advice must be impartial, without bias, and development-oriented. To achieve this outcome, legal advice is discussed with peers, seniors, and deliverables are subject to a quality control exercise.

Mr J Londt (DA, Western Cape) asked for the memo to be circulated on the WhatsApp group so that Committee Members could look at it carefully and apply their minds. He expressed his appreciation to the Office for the time it took to respond to the query. He clarified that at no stage was there ever any aspersion cast on the competence and abilities of Adv van der Merwe. His view was that it would be better if there was another set of eyes to look at the bills as it was confirmed this was done by the workstreams read out in the memo.

If someone works on a piece of legislation for such an extensive period of time, there are advantages to that but there are also disadvantages and biases that may creep in.

He maintained that it would in fact be good to have different opinions - even from the CLSO – for the Committee to consider. Members are capable of looking at different opinions and applying their minds to what would work best in the legislation.

Mr M Mmoiemang (ANC, Northern Cape) appreciated the feedback which confirmed the soundness of Adv Mer der Merwe’s legal opinion.

Mr M Dangor (ANC, Gauteng) noted Mr Londt’s response and reminded him that the manager of CLSO had indicated that they would also look at the bills, so that should be serving as the second set of eyes that looked at the work and approved it. He nevertheless expressed his appreciation for the feedback.

Legal Opinion on the voting process

Adv Shamara Ally, NCOP Procedural Advisor, explained the process that the Committee could follow today. The Chairperson could take the Committee through the bill clause-by-clause in terms of the amendments that were proposed. The Committee could then allow DTIC and Adv van der Merwe to make give input if members require any response. The Committee can then move to voting per clause. Strictly speaking, 5 provinces have to be in favour to carry the amendments. Each province holds one vote and the Member from the majority party in the respective provincial legislature carries the vote. Concerning members from a minority party in a particular province, their opinion can be noted but they can not vote.

Mr Londt sought clarity on the last point raised by Adv Ally. He was aware that this matter had been raised previously and the Chairperson had asked for a legal opinion.

The NCOP is set up with the intention to include diversity in the representation from different legislatures. It was concerning to suppress those different voices in a committee and say those votes go to the majority party. He requested formally to get a legal opinion, in writing, on that rule.

Adv Ally indicated that she would provide a formal procedural opinion to the Committee before the next meeting. The voting procedure is set out in the Constitution, and it is one vote per province and the majority of five would carry through the vote. In terms of representing different opinions, the various opinions will be included in the report but they would be recorded as minority views and not a vote. Only a permanent delegate may vote and in their absence, an alternative may vote. The problem arises when there are two members from a province in which one is a member of the ruling party and the other is of the opposition party. Schedule 3 Part B of the Constitution states that the permanent delegates from each province are determined by the proportional representation of that party within that province.

Ms B Mathevula (EFF, Limpopo) sought clarity about what would happen if the member of the majority party (from her province) was not in the Committee and she was present, would her vote be noted?

Mr Londt remarked that he had no problem proceeding but wanted to wait for the legal opinion before proceeding to vote. He reiterated his concern that opposition votes were being suppressed.

The Chairperson explained that it only applies to section 75 and 77 bills. Individuals do vote in the House. When it comes to section 76 bills, it is done by provinces even when it came to declarations. That has been the practice.

Mr Mmoiemang acknowledged the proportional representation principle to accommodate diversion views and indicated that he would await Adv Ally’s legal opinion.

Mr Dangor pointed out that as a permanent delegate from Gauteng, Gauteng has already given him a negotiating and voting mandate. Each member has an instruction, in writing, from the province in terms of which direction to go and what to vote on or against. If there were two different negotiating mandates from a province, he was not sure what that would mean.

Adv Ally explained that only permanent members of the Committee have a right to vote and Members can only vote in terms of the provincial mandates that were provided to them. If the permanent member of a province is not in the Committee such as in the case of Ms Mathevula, she has to vote in terms of the mandates that were in front of her but her minority view can be recorded.

Mr Londt indicated that he preferred doing this in-person especially when the Committee is working on legislation of such importance. He urged the Chairperson to motivate this to the House Chairperson.

The Chairperson explained that it was not about motivation but rather the availability of venues. For a meeting of this nature, he did not think it would be a huge issue to do it online as other committees were doing the same and the Committee itself had passed two bills on this platform.

Voting on Copyright Amendment Bill

The Chairperson took the Committee through the bill clause-by-clause.

Dr Evelyn Masotja, Deputy Director-General: Consumer and Corporate Regulation Divisio, DTIC, and Adv C Van der Merwe provided the Committee with their inputs to provinces’ proposed amendments. Details of the explanations of those amendments and their responses can refer to the slides.

Below captures the voting record.

Clause 1

 “accessible format copy”

Both the DTIC and CLSO recommended the retention of the bill’s wording “accessible format copy”. Details can be found in the attached document.

The provinces that voted in favour of accepting the response from DTIC and CLSO were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

The Chairperson asked if there were any votes against the acceptance of the amendments or abstentions.

Mr T Brauteseth (DA, KZN), Ms B Mathevula (EFF, Limpopo), and Mr Londt (DA, Western Cape) abstained.

The Secretariat noted that Mr Brauteseth and Ms Mathevula would be recorded as minority views.

Mr Londt sought clarity why Mr Brauteseth is framed as a minority view if there was not a previous vote from KZN.

Adv Ally replied that Mr Londt is correct and Mr Brauteseth’s vote is noted as an abstention.

The vote was carried.

“Authorised entity”

The DTIC and CLSO proposed a new amendment. Details can be found in the attached document.

Mr Brauteseth said the negotiating mandates were given before the responses by the DTIC and CLSO. Normally, if a province raises an issue on its negotiating mandate, it would receive a response from the Department and CLSO and perhaps come back with a revised position.  It placed him in a difficult position as he had not had time to process those comments from his colleagues from the Department and the CLSO. He also did not have the view of his colleagues on the response to indicate if they accept or want to adapt their mandate.  

Adv Ally clarified that many of the mandates received had proposed amendments included but KZN did not have a specific position on an amendment. There were just recommendations. The voting is up to the Member as there are no proposals in the mandate that he has to vote in terms of.

Mr Brauteseth indicated that he felt that he needed to abstain as he did not know the position of the province.

The Chairperson said the Committee is on its own: it is discussing, expressing views, and voting on those views. Provinces will have a chance – whether they agree with what a delegate says or not – when they consider their final mandates. For now, the member was free to express his views and vote accordingly.

Mr Brauteseth sought clarity if today’s discussion will form part of the report that goes back to the provinces and then they come back with their final negotiating discussion.

The Chairperson clarified that the provinces will come back with their final mandates.

Mr Brauteseth understood the process and thanked the Chair.

Ms Mathevula posted the below in the ChatRoom.

Note EFF position on Copyright Amendment Bill AND Performers Amendment Bills

The bills must establish two collecting agencies, one representing producers and the other representing performers.

The bills must make provision for performers right to work of art and any works that is in the custody of anyone other than artists must be returned.

The bills must make a provision for the creation of a tribunal or special court for mediating disputes between artists the producers and multinational companies that eventually take unfair ownership of the IP right of the creative, not the producers who benefit the most.

The bills must make provision for the expropriation of IP rights from companies and multinationals that hold them which got these rights through cheating the artists who came before us, the product produced by those who came before us must be freely made available for research purposes.

South Africa must withdraw from tips a WTO treaty to which SA is a signatory.

The bills must protect artists and performers by ensuring that they are paid in perpetuity as long as their work is aired or circulated in various format rather than a one-time payment at the production stage.

 

The provinces that voted in favour of accepting the response from DTIC and CLSO were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the recommendation.

Mr Brauteseth, Ms Mathevula, and Mr Londt abstained.

The vote was carried.

“broadcast”

The DTIC and CLSO’s proposed amendment: Propose to delete the amendment to the definition in the Bill so that the Definition in the Act is retained. I.e., delete clause 1(d) of the Bill.

Details can be found in the attached document.

The provinces that voted in favour of accepting the response from DTIC and CLSO were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the recommendation.

Mr Brauteseth, Ms Mathevula, and Mr Londt abstained.

The vote was carried.

“Commission”

Neither the DTIC nor the CLSO supported the Gauteng provincial legislature’s recommendation to define the term "Commission" as meaning "the Commission established in terms of section 185 of the Companies Act".

The provinces that voted in favour of accepting the response from DTIC and CLSO were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the recommendation.

Mr Brauteseth, Ms Mathevula, and Mr Londt abstained.

The vote was carried.

“Dramatic works”

The proposed definition from the Gauteng Provincial Legislature on the definition of “dramatic works” was not recommended by DTIC.

Dr Masotja added that given the unique characteristics of the industry, it would require proper consideration before amending the definition.  

Mr Brauteseth welcomed the Department’s concession that further work would be needed for this clause. He wanted to know when the Department would be embarking on the stakeholder process and if they will be allowed to make submissions to the Committee and passed on to provinces before they submit their final mandates.

The Chairperson clarified that what Dr Masotja meant was that should the bill be passed; it would be done without this definition of dramatic works. The Department would then start reviewing this Act and focus on amending the definition of dramatic works.

Mr Brauteseth suggested the bill be paused to get everything right the first time or else there would just be a plethora of amendments bills for the seventh Parliament. They should concede the bill is poorly written and should be fixed. Parliamentarians must also bear in mind that they should not waste taxpayers’ resources.

The Chairperson explained that is the nature of legislation. It is reviewed and amended if there are unintended consequences and did not mean a waste of resources. It was part of the legislative process. The process will be done by the Department. It will consult with stakeholders, draft an amendment bill, submit it to Cabinet, go to Nedlac, the Department, there is a SEIAS process, then has to be approved by Cabinet before being referred to Parliament.

The provinces that voted in favour of accepting the response from DTIC and CLSO were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the recommendation.

Mr Brauteseth, Ms Mathevula, and Mr Londt abstained.

The vote was carried.

“performer”

The recommendation of the Gauteng Provincial Legislature was supported by the DTIC and CLSO but the recommendation amendment of the North West Provincial Legislature was not supported.

The Department, though recognised the input about the Beijing Treaty, highlighted that extras do not have to be in the definition since they are not explicitly stated in the treaties. Since the issue was raised by provinces, the Department’s view is that it would not cause harm for extras to be excluded from the definition.

Mr Brauteseth was concerned that they were looking at two distinct pieces of legislation: one of which includes extras and the other that did not. As a result, there might be a contradictory situation going forward where those looking to harm the interests of extras, who were on the lower rung of actors and were trying to make a living and feed their families, that they are being discriminated against by interests that are only looking after the bigger stars. There will be a situation where they are protected in one Act and not in another. They all knew that good lawyers would use one against the other. Surely, they should be protected in both Acts.

Mr Londt supported his view and expressed his concern that the Committee was being over-ambitious by pushing something through and not fixing things problems properly. Furthermore, he pointed out that since the Chairperson struggled with internet connectivity, it affirmed his point that in-person meetings would be better in such cases. Such important legislation should not be rushed through, otherwise, there will be unintended consequences flowing from decisions made now that might have damaging consequences.

Adv van der Merwe explained that it’s not that the two Acts will have different definitions. In respect to the definition of performer, the Copyright Amendment Bill refers to the Performers’ Protection Bill so in other words, as it appears in the Performers’ Protection Act, that will be definition applied in the Copyright Act as well. From legal side, there is nothing that requires extras to be added. From the Department’s side, it has indicated that it would not be problematic to make sure extras are expressly excluded and therefore, if the Committee agrees that amendment must be made, it will not be done in the Copyright Amendment Bill but the Performers’ Protection Amendment Bill.

Dr Masotja explained that it is a widely known practice in the industry that not all people participating in productions are typical performers who are entitled to a royalty. These are people in the background. The experience of extras is incidental. The Department has viewed the treaties and extras are excluded from the definition of a performer. They won’t be disadvantaged in terms of their rights. They are not implying that extras are not important. In their view, it should not necessarily be amended and could be dealt with without being in legislation.

Mr Brauteseth said he found the last expression of opinion “highly offensive”. We live in a country where we have a constitution that protects the rights of all South Africans. It protects their right to make a living and feed their family. The Committee just heard an official say that extras are incidental, not really important and don’t do much. He suggested that the Committee goes out to all the extras in the country who make a couple of hundred rands and here and there to survive and tell them they are incidental, not really important and don’t do much. He found this offensive and asked for a ruling that Dr Masotja withdraws her remarks. He personally has family members who worked as extras in various productions and such language should be rejected with contempt.

Ms H Boshoff (DA, Mpumalanga) supported Mr Brauteseth’s view and highlighted that the Committee should have a look at the experience of extras and ensure that they get due diligence.

A Member clarified that it was not the Department that came up with the proposal to exclude extras as it was actually the Gauteng Provincial Legislature itself that brought up this idea. The issue came up in the public hearings and the Department considered it and felt that extras should be included whereas the public felt that extras should be excluded.

The provinces that voted in favour of accepting the response from DTIC and CLSO were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the recommendation.

Mr Brauteseth, Ms Mathevula, Mr Londt and Ms Boshoff abstained.

The vote was carried.

“persons with a disability”

Both the Department and the CLSO believed that no amendment was necessary as the bill already covers all persons with disability.

The provinces that voted in favour were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the recommendation.

Mr Brauteseth, Ms Mathevula, Mr Londt and Ms Boshoff abstained.

The vote was carried.

“Producer”

Neither the CLSO nor the Department supported using the word “producer” in the bill as the word is not used in the Act or the bill.

The provinces that voted in favour were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the recommendation.

Mr Brauteseth, Ms Mathevula, Mr Londt and Ms Boshoff abstained.

The vote was carried.

“technological protection measure”

The view of the Department and the CLSO is that no amendment to the wording of the Bill’s definitions is recommended. These definitions are fully compatible with the treaties and the three-step test. As they are currently worded, they provide a very careful balance between the rights of copyright owners and users.

Mr Brauteseth requested a detailed breakdown of the consultation with the experts that the explanation had referred to as he was not part of the discussion.

The Chairperson clarified that it referred to the workshop which had taken place before the DTIC briefings. The workshop invited experts from universities and NGOs which took the Committee through the copyright issue. Public hearings were held subsequently to that workshop.

Adv Van der Merwe explained that she had provided the slides of consultations as well as the names of experts in their previous session. She summarised the advice given in the past as well. She referred to the need to balance three freedoms in the document.

• “the freedom to arrange our conduct to our own benefit rather than that of the shareholders of the companies whose products we purchase (to use the product as the consumer wants to);
• the freedom of third parties to offer accessories, consumables, services and repairs for the products we own; and
• the freedom of auditors to uncover and publicise defects in the products we rely on (they are threatened that any disclosure could jeopardise the TPM).” (Doctorow)

The Department concurred with her view and highlighted that in countries with stricter technological protection measures, there are unintended consequences. Hence the Department supported adhering to the definition.

Neither the Department nor the CLSO supported the Gauteng Provincial Legislature’s recommended amendment to include terms such as “wire” and “wireless”.

The provinces that voted in favour were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the recommendation.

Mr Brauteseth, Ms Mathevula, Mr Londt and Ms Boshoff abstained.

The vote was carried.

Clause 2

Neither the Department nor the CLSO agreed with the amendment by the North West province.

The provinces that voted in favour of accepting the response from DTIC and CLSO were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the recommendation.

Mr Brauteseth, Ms Mathevula, Mr Londt and Ms Boshoff abstained.

The vote was carried.

Clause 3 and Clause 24

No amendment has been recommended by provinces on this clause.

The provinces that voted in favour were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the recommendation.

Mr Brauteseth, Ms Mathevula, Mr Londt and Ms Boshoff abstained.

The vote was carried.

Clause 4

Although no legislative proposal from provinces, the Committee was still required to vote on the clause.

Adv van Der Merwe clarified that the E-list will not include clause 4, so she recommended Committee Members vote on it today as they might otherwise forget.

Adv Ally concurred with her colleague.

On the definitions that are not included in the bill, she advised that the Committee would have to make decisions on whether this definition would enhance the bill. She recalled the previous experience when a Committee had passed the Tourism Amendment Bill without having defined the word “tourism”. It would not make sense for the Committee to pass the bill without fixing this technicality. Obviously, that process would involve applying to the House to have it considered should the definition not be included in the bill. In that process, it would lengthen the process.

Having heard the explanation, the Chairperson asked Committee Members to vote on clause 1 including those amendments with no provinces making any proposal.

The provinces that voted in favour of accepting the response from DTIC and CLSO were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the clause.

Mr Brauteseth, Mr Londt and Ms Boshoff abstained.

Clause 1 is thus adopted.

The Committee Secretariat suggested the Committee vote on clauses 2 and 3 just for confirmation.

The Chairperson agreed and asked members to vote on clauses 2 and 3.

The provinces that voted in favour of accepting the response from DTIC and CLSO were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against the clauses.

Mr Brauteseth, Mr Londt, Ms Mathevula and Ms Boshoff abstained.

Clauses 2,3 and 4 were thus adopted.

Clause 5

The proposed amendment was to include “equitable remuneration” wherever “royalties” is used (with the necessary drafting adjustments to ensure sentences read well).

Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of the clause.

No one voted against the clause.

Mr Brauteseth, Ms Mathevula, Mr Londt and Ms Boshoff abstained.

Clause 5 was adopted.

Clause 6

Since there was no legislative amendment from provinces, the provinces that voted in favour were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against clause 6.

Mr Brauteseth, Ms Mathevula, Mr Londt and Ms Boshoff abstained.

Clause 6 was adopted.

Clause 7

Responses can be referred to in the attached document. No amendment was recommended by provinces to this clause.

The provinces that voted in favour were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

Mr Brauteseth, Mr Londt and Ms Boshoff voted against clause 7.

Ms Mathevula abstained.

Clause 7 was adopted.

Clause 8

Since there was no legislative amendment from provinces, the provinces that voted in favour of were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

No one voted against clause 8.

Mr Brauteseth, Mr Londt, Ms Boshoff and Ms Mathevula abstained.

Clause 8 was adopted.

Clause 9: s8(a)

The provinces that voted in favour of the amendment were: Northern Cape, Limpopo, Gauteng, Eastern Cape, North West, and Free State.

Mr Londt, Mr Brauteseth and Ms Boshoff voted against the recommendation.

Ms Mathevula abstained.

The recommendation to s8(a) was accepted by the Committee.

In terms of the voting on the entirety of clause 9, Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of clause 9.

Mr Brauteseth, Mr Londt and Ms Boshoff voted against clause 9.

Ms Mathevula abstained.

Clause 9 was adopted in its entirety.

Other Matters

That brought to an end of the meeting at 12:30pm. Members still needed time to go to Parliament for the plenary.

The Chairperson indicated that the meeting would reconvene on 20 June.

Mr Brauteseth sought clarity on the postponement of the meeting the following day.

Mr Mmoiemang indicated that the response from the Department of Transport in relation to the Economic Regulator of Transport Bill was not ready yet. The Department hence requested an extension.

Ms Grace Dinizulu, Committee Secretary, confirmed that the Department of International Relations and Cooperation (DIRCO) was yet to accommodate the Select Committee’s overseas trip to Germany. It has not been scheduled that the trip would begin on 3 July but Members would be travelling from South Africa on 1 July and return to on 10 July. She was busy with the note verbale. As soon as she received all the information, she would be able to communicate with TLS to arrange for Schengen visas for Members.

Mr Brauteseth enquired about the possibility to make a visa application appointment for next week since some Members have by-elections.

The Chairperson suggested Monday be the day to make such arrangements.

The Chairperson asked Members if they could continue this clause-by-clause process the next day.

 All Members agreed and indicated their availability. The meeting would continue on 14 June 2023.

The Chairperson adjourned the meeting.