Copyright & Performers’ Protection Amendment Bills: Negotiating Mandates (continuation)

Meeting report

The Chairperson noted the meeting would continue from the previous day deliberating on the negotiating mandates of provinces on the Copyright Amendment Bill.

Ms B Mathevula (EFF, Limpopo) asked if minority party members would be given an opportunity to give their views on the Bill. She said that minority views must be recorded and reflected in committee reports and minutes.

The Chairperson welcomed Ms Noluvuyo Tafeni (EFF, Eastern Cape) as a new delegate to the Select Committee. He then invited Adv Ally to lay out the voting procedure.

Adv Shamara Ally, Parliamentary Legal Advisor, replied that the view of the EFF would be stated in the report. Each time Ms Mathevula posts in the chatroom, those posts would be recorded and included as part of the minutes and reports as well.

Adv Ally indicated that the Committee would go through the Bill clause-by-clause. In order for a clause to carry through, it would need the vote of at least five out of nine provincial votes.

Department and Legal Advisors response to Negotiating Mandates
The CLSO and DTIC responses were outlined (see documents). This captures the voting record:

Clause 10
No province proposed an amendment to clause 10.

Mr Rayi, Ms M Moshodi (ANC, Free State), Mr E Landsman (ANC, North West), Mr K Mmoiemang (ANC, Northern Cape), Ms M Mamaregane (ANC, Limpopo) and Mr M Dangor (ANC, Gauteng) supported the clause.

No one voted against the clause.

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

Clause 10 was approved.

Clause 11
No amendment was recommended by the provinces.

Mr Rayi, Ms Moshodi, Mr Mmoiemang, Ms Mamaregane and Mr Dangor supported the clause.

No one voted against the clause.

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

Clause 11 was approved.

Discussion on voting power of a permanent delegate for negotiating mandates
Mr Londt sought clarity about the legal opinion on the voting power of a permanent delegate.

Mr Dangor interjected and said that there is precedent the Committee can follow. The NCOP set-up determines that it is the province that is voting for Section 76 Bills affecting the provinces. Other votes that are different to the vote of the province are recorded as minority views. That was the procedure practised in the Gambling Bill.

Mr Brauteseth stated that there should not be a duplication of votes in the same province. He pointed out that both Ms Mathevula and Ms Mamaregane were from Limpopo and the Chairperson, Ms Tafeni and himself were from the Eastern Cape.

Mr Landsman asked the Chairperson if his vote on clause 11 had been recorded or not.

The Chairperson replied that it was not recorded because Mr Landsman had not raised his hand.

The Chairperson explained that the voting in the NCOP is determined by the majority party of that province. Thus, it does not matter if the permanent delegate is from the majority party or not, the delegate must vote in accordance with the mandates and directives given by that province. For instance, since the DA is the majority party in the Western Cape, Mr Njadu (ANC, Western Cape), despite of his party affiliation, must vote in accordance with the directives of the Western Cape Parliament.

Ms Mathevula was confused. She recalled that the Chairperson had indicated in the meeting yesterday that only the votes from the majority party would be counted, she did not understand why minority parties were allowed to vote but their votes are not being counted.

Adv Ally replied that the requested procedural advice was being prepared and would be forwarded to the Committee as soon as the Secretary to the NCOP approved it. Her office cannot send anything to the Committee without the Secretary’s approval.

Adv Ally explained NCOP proportional representation. The Committee’s report records the votes of the nine provinces, whether they voted for, against or abstained. It is the responsibility of the majority party of that province to cast the vote, but it is the majority party’s prerogative to delegate someone from a minority party to represent the province in the NCOP meeting where the minority party does not have a vote but it can make its position known and recorded as a minority view.

Mr Londt said that he would wait for a legal opinion on this. If this Committee does not want opposition members to be full delegates of the NCOP, then going forward the Chairperson should not expect opposition members to provide a quorum when members of the majority party cannot even be available for such meetings. He pointed out the contradiction that the Chairperson had confirmed yesterday that even opposition members were allowed to vote as they see fit whereas Adv Ally’s response suggested that Mr Brauteseth does not have the voting right.

Mr Londt was unhappy at the delay in Members receiving the second legal opinion on the Bills. The Chairperson had received the legal memo on 7 June and he only circulated it to Members on 13 June. He requested that such important documents to be circulated immediately in future.

The Chairperson explained the decision was for the legal opinion to be dealt with in the meeting. There was no meeting between when he had received the memo and the 13 June meeting.

Mr Mmoiemang did not think it was politically correct that Mr Londt should use quorum to destabilise the committee’s business. Members should always be available for meetings.

Adv Ally clarified that since Mr Brauteseth was the only KZN legislature member present, in line with the KZN provincial legislature, Mr Brauteseth had voted in favour of the Bill. But when it comes to individual clauses, if he chooses, he can vote against the clauses or abstain during the negotiating mandate phase. This was unlike the situation of Limpopo where both Ms M Mamaregane (ANC, Limpopo) and Ms Mathevula (EFF, Limpopo) are present where only the vote from the majority party would be counted. Fortunately, KZN so far does not have any proposed amendment.

Clauses 12, 13 and 14
No amendments were proposed by provinces on these clauses.

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

No Member voted against the clauses.

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

Clauses 12, 13 and 14 were approved.

Clause 15 amending Section 12(a)
The Chairperson indicated that Committee Members would have to vote for each amendment before adopting the entire clause 15.

Mr Londt recalled that during the Committee’s last in-person meeting, he had requested more information to be provided to the Committee on the Social Economic Impact Assessment (SEIA). He was also aware that the Department had provided its feedback responses to several provinces which was why he had requested those feedbacks and the dates they were sent to provinces. He wanted to check if there was a misalignment of communication. with his province, Western Cape.

The Chairperson commented that to his understanding the Department of Planning, Monitoring and Evaluation (DPME) is under no obligation to send those to provinces and indicated that SEIA is not with the Department of Trade and Industry but with the DPME.

Dr Evelyn Masotja, DTIC Deputy Director General: Consumer and Corporate Regulation, reiterated the Chairperson’s point that SEIA was the mandate of the Presidency and the DPME. The guideline is clear that there was no obligation for the department to send SEIAs to stakeholders. The department has made SEIAs available in terms of the parliamentary processes. She had informed the Committee that there was one province which had requested SEIA information and the department did provide the information as per the request. She was uncertain how it could be perceived as miscommunication. There were public hearings in the provinces and the department had also briefed provinces on each of their concerns. She thought that the matter had been clarified in the last meeting. The guideline is not meant to be published for the public but meant for the authority to address certain issues.

Mr Brauteseth heard Dr Masotja’s explanation and cautioned everyone that although there was no obligation, there are already numerous court cases where courts found that there has been insufficient public participation on the government’s side. He urged the government to ensure sufficient public participation to avoid such court cases in future.

The Chairperson highlighted the difference between public hearings and the SEIA.

Mr Londt requested the SEIA to be sent to Committee Members. He wanted to know details such as which provinces had requested the SEIA and when the SEIA was sent to those provinces. The information in SEIA will have an impact on all nine provinces. By withholding information, there would be implications for provinces. At the very least, law makers in each province should be entitled to the SEIA even though they are not published.

Mr Dangor asked what constituted sufficient public participation.

Dr Masotja replied that the Western Cape was the only province that requested the SEIAs and the Department did provide documents to the province as per the request. Her department can make available those documents that have been sent to the Western Cape.

Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of the part of clause 15 amending Section 12(a) of the Act.

Mr Brauteseth, Mr Londt and Ms Boshoff voted against.

Ms Mathevula abstained.

The vote was carried.

Clause 15 amending Section 12(b) of the Act
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of the part of clause 15 amending Section s12(b).

No Member voted against.

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

The vote was carried.

Mr Dangor said the Secretariat should have recorded the vote as provinces not as Members.

The Chairperson indicated to the Secretariat to keep the status quo until the Committee received the legal memo from Adv Ally.

Clause 15 amending Section 12(c) of the Act
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of the part of clause 15 amending Section 12(c).

No one voted against.

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

The vote was carried.

Clause 15 amending Section 12(d) of the Act
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of the part of clause 15 amending Section 12(d).

No one voted against.

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

The vote was carried.

Clause 15 (overall)
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of clause 15.

Mr Brauteseth, Mr Londt and Ms Boshoff voted against.

Ms Tafeni and Ms Mathevula abstained.

Clause 15 was approved.

Mr Londt interjected and said that the SEIA had looked at the impact assessment on government only and excluded the impact on industries. This is exactly why he persistently had requested distributing the SEIA to provinces. It is crucial that provinces are well-informed before making their final mandate.

Clause 16
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of clause 16.

No one voted against clause 16.

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

Clause 16 was approved.

Mr Brauteseth indicated that since he and Ms Boshoff are the only delegates from KZN and Mpumalanga respectively, the Committee should record their votes as Mr Brauteseth from the KZN province and Ms Boshoff from the Mpumalanga province in terms of uniformity.

The Committee Content Advisor explained that the Committee had received the negotiating mandates of both Mpumalanga and KZN and both provinces voted in support of the Bill. However, individual Members were still allowed to vote in support of, or against, or abstain for each of the clauses.

Mr Londt interjected that there are some provinces that change their positions on the Bill after they received the feedback from the department and CLSO. It is not the job of the Content Advisor to give legal opinions and the Committee would require a formal legal opinion on the matter.

The Chairperson took note of Mr Londt’s comment and moved to the next clause.

Clause 17
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of clause 17.

No Member voted against clause 17.

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

Clause 17 was approved.

Mr Brauteseth asked the Chairperson that since there were two members from Limpopo and two from the Eastern Cape, which Member’s vote has the preference.

The Chairperson explained that the question had been answered. The vote from the majority party will be counted but the other is recorded as a minority view. He asked Members to allow the voting process to continue until the legal memo was received from Adv Ally.

Mr Mmoiemang was concerned that the issue has been persistently brought up. He suggested either to defer the meeting to another session until the Committee received the legal memo or continue with the process. In his view, the voting question has been clarified already.

Ms Boshoff said that the Committee is going through this process where a legal decision is unclear. She thus asked the issue to be shelved until the legal matter has been clarified.

The Chairperson said that the voting query has been explained already. What the Committee is waiting for now is the written memo from Adv Ally.

Ms Mathevula asked should the legal advice not be the way the Committee had assumed, would the Committee re-vote on the Bill.

The Chairperson replied that the legal opinion was only a confirmation in writing.

Clause 18
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of clause 18.

No Member voted against clause 18.

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

Clause 18 was approved.

Clause 19
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of clause 19.

No Member voted against clause 19.

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

Clause 19 was approved.

Clause 20
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of clause 20.

No Member voted against clause 20.

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

Clause 20 was approved.

Clause 21
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of clause 21.

No Member voted against clause 21.

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

Clause 21 was approved.

Clause 22 amending Section 19(c) of the Act
Mr Rayi, Ms Moshodi, Mr Landsman, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of the recommendation.

No Member voted against the recommendation.

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

The recommendation was accepted.

Clause 22 amending Section 19(d) of the Act
Mr Rayi, Ms Moshodi, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour of the recommendation.

No Member voted against the recommendation.

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

The recommendation was accepted.

Since the Chairperson was disconnected from the platform, Mr Dangor suggested adjourning the meeting.

Mr Londt said it is unfair to call adjournment when the majority party has not enough members to support the Bill.

Mr Dangor requested the Secretariat call Mr Landsman to ensure his presence.

Ms Boshoff said that she hoped if any DA Member was not on the platform, they would also get a call from the Secretariat.

Mr Mmoiemang suggested that the meeting might have to be adjourned due to frequent disruptions.

Ms Mathevula asked the Committee to allow her to submit the view of the EFF on the Bill before adjournment.

Mr Dangor said that he would support adjournment.

Ms Boshoff agreed that she would also support adjournment.

Ms Mathevula read out the EFF’s view on the two Bills.

The EFF had consultative meetings with the creative industry and practitioners on 17 March 2022. The followings are the overview of those submissions.

Copyright Amendment Bill creates compensation not for those artists who created the work but rather those who own the work of those artists. The Bill continues to marginalise artists because it promotes the interest of those who commission the work. The Bill legislates the existent collecting society out of existence. Although this may benefit artists via royalty, it might also give the same royalty company more power to act as middlemen to determine who gets paid what. Those companies have exploited performers and will continue to do so because there is a long history of producers refusing to pay performers. The Bill must include a provision that returns the right which currently those companies hold to the artists since those rights were stolen from them. The Bill must emphasise that the IP must lie with the performer and not with the company that produces the performer. Multi-national companies are now taking advantage of performers. This Bill must also protect artists from signing exploitative contracts, particularly female artists. The Bill should establish a tribunal court for artists as artists are entitled to have royalties without being at the mercy of producers. Provision must be made for the compensation of performers for repeating episodes. The Bill must compel entities who still hold the music of artists who had passed on to release their work for research purposes.

The Chairperson, who had reconnected, requested Ms Mathevula circulate that document to the Content Advisor. If procedurally allowed, it would perhaps include that in the minority view report.

He agreed with Members’ view and indicated that the meeting would re-convene on 20 June.

Clause 22
Mr Rayi, Ms Moshodi, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour.

No Member voted against clause 22.

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

Clause 22 was approved.

Clause 23
Mr Rayi, Ms Moshodi, Mr Mmoiemang, Ms Mamaregane and Mr Dangor voted in favour.

No Member voted against clause 23.

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

Clause 23 was approved.

The Chairperson said that the 20 June meeting would continue from clause 24.

The Committee briefly discussed the oversight visit with the Committee Secretary reporting that she had submitted the note verbale to DIRCO. DIRCO replied that it had a long list of such visa applications but would try to process it during the course of the day.

Ms Boshoff and Mr Dangor both suggested that since visa application is a time consuming process, the Committee needed to speak to someone in DIRCO directly to fast-track the process as time was running out.

The Chairperson adjourned the meeting.