Copyright & Performers’ Protection Amendment Bill: Voting on Negotiating Mandates (continuation)

Meeting report

Opening Remarks
The Chairperson welcomed everyone to the meeting, addressed matters of attendance, and responded to Members on other meetings taking place on the day. He agreed with a suggestion made by the committee whip that the Committee takes lunch at 1:30 so that Members could attend the beginning of the plenary session in the NCOP at that time, should they so wish.

Ms H Boshoff (DA, Mpumalanga) noted that the afternoon session had been arranged without consulting party whips or any Members of the opposition on the Committee. She expressed her unhappiness that she had also not been informed that the break would take place at 13:30 as she would have appreciated the opportunity to put a motion before the House. She assumed that Mr M Dangor (ANC, Gauteng) was using the opportunity to put or speak to a motion in the House. She asked that her displeasure regarding the unilateral amendments to the Committee Programme be recorded.

Mr T Brauteseth (DA, KwaZulu-Natal) supported Ms Boshoff’s objections. He asked for a ruling on the regularity of the Chairperson taking such a decision in the name of the Committee without consulting Members. 

Mr M Dangor (ANC, Gauteng) corrected Ms Boshoff. He was not presenting a motion in the plenary that day. As a provincial whip, he was required to be in the plenary for at least the first 15 minutes.

Ms M Moshodi (ANC, Free State) stated that the Committee should not break for the Study Group meeting. She understood the whip's position but she did not believe the meeting should be held in abeyance.

The Chairperson stated that Members could spend their lunch break from 13:30 to 14:30 as they wished. He explained that Rule 91 of the NCOP Rules did allow the Chairperson to make decisions regarding dates and times of meetings when it was not possible to hold a meeting to consult with Members. He apologised for the manner in which it had happened.

Mr Brauteseth referred to rule 91 which said that the Chairperson could make a decision in the best interests of the Committee. What did he understand by "the best interests of the Committee"?

The Chairperson reflected on the meetings held in respect of the Bills. The voting on the negotiating mandates had extended long beyond the allocated day and time. He had considered it was in the best interests of the Committee to complete the process. He only realised the need for extending the day after the meeting on 14 June 2023.

Mr Brauteseth appreciated the explanation.

The Chairperson invited Adv Shamara Ally, Procedural Officer in Parliament, to make a presentation on a procedural matter following a request by Committee Members.

Procedural Opinion: Voting by Provincial delegations in Committees
The Chairperson suggested that because the opinion had been circulated, Members who wanted to ask questions for clarity could do so.

Mr Brauteseth requested that Adv Ally take Members through the opinion and explain it to the Committee as she went through it. Certain sections were a bit confusing to him.

Adv Ally explained that the document was written following an official request from the Select Committee. Members of the Committee were concerned when, during a meeting of the Committee, two Members of the same provincial delegation voted on a question before the Committee. The Select Committee had requested advice on the status quo of those votes. In addition, the Committee sought clarity on the legitimacy of the votes cast by a Member if the vote were not in conformity with the provincial mandate.

In answering the questions posed by the Committee, Ms Ally referred to sections 60 and 65 of the Constitution and the Mandating Procedures of Provinces Act 52 of 2008. She did not make mention of any of the parliamentary rules in the advice because the Constitution was the supreme law. Section 60 of the Constitution states that the NCOP consists of a single delegation from each province consisting of 10 delegates. Regarding section 76 Bills, section 65(1)(a) of the Constitution provides that each province has one vote. The Mandating Procedures of Provinces Act defines a mandate as an instrument that confers authority and prescribes how to vote on the provisions in an ordinary Bill affecting provinces, i.e. section 76 Bills. In terms of section 5 of the Act, the authority to negotiate is conferred by a committee designated by a provincial legislature.

In the circumstances of the case at hand, the delegation has been mandated to support the Bill. It had not been argued that the mandate was improperly conferred or obtained. The mandate was binding on the delegation as a whole, exclusive of the individual views of the delegates. Each delegation had one vote, irrespective of who cast that vote, as long as it was done in terms of the mandate conferred on the delegation.

The Chairperson called for engagement with the opinion.

Mr Brauteseth said that his difficulty was that he remembered quite clearly the discussion on the matter the previous week because multiple delegates from two different provinces had been allowed to vote. Two guests from Limpopo and two delegates from the Eastern Cape had each been allowed to vote. Also, early on in the proceedings, he thought it was Adv Shamara (Ally) who had said that every delegate could vote as they wanted to and not as per the mandate given by the province. That was his first question. During the course of the voting, the Committee had voted on a number of things, and on each of those occasions, the Committee seemed to follow a different procedure. The Committee was vacillating between section 76 style voting and section 75 style voting. He wanted to go back in the record and go vote-by-vote and see which clauses were improperly voted on and which ones were properly voted on. In many instances, there was confusion as to whether or not Members were voting by province or whether they were voting as individuals because all names were called out for the record. The opposition parties were just abstaining and that was not recorded as a vote for the province, but as just as a vote for the individual member, as per section 75 Bills. That was going to pose a fundamental problem later, should the matter be subject to any judicial scrutiny. That was his problem, and also the opinion that was given to Members. The Committee needed to get the minutes and review every single vote and make sure that it was done it correctly. He just wanted to do things correctly and re-vote, where necessary, to ensure only one vote for each province was recorded. 

The other thing that concerned Mr Brauteseth was the second to last paragraph of the opinion which argued for the process. That was the kind of language used by a defendant in a case and the lawyer argued that the applicant had not proved his case. It was not a legal matter. The DA requested the ruling; it was merely asking for advice but that paragraph was quite defensive of the process. On 13 June 2023, there might have been a significant number of votes that were recorded incorrectly, simply because of changes in voting style. If the Bills were simply allowed to proceed, that process would open the Bill up to legal scrutiny.

Mr M Mmoiemang (ANC, Northern Cape) appreciated the advice given by Adv Ally in relation to the issue. He listed the chapter headings. There was no confusion in terms of the issues that they are dealing with. The law about the role that provinces play in relation to the section 76 matter was very clear. There never was any confusion from the side of his party. Adv Ally had advised Members in terms of the law and it had been applied consistently by the NCOP. The confusion was manufactured. The opposition Members were expressing an opinion; they were not voting as that was the role of the head of the delegation.

Mr Dangor was partially covered by Mr Mmoiemang. He had indicated the process in the meetings but was ignored to the point that it was almost at times a bit difficult to express an opinion because he was told that was his opinion and the opposition wanted to get a legal opinion on the matter. If the Bill was going to court and had to stand up to legal scrutiny, he proposed that the Committee revisit the entire process that entire day as well as the whole day on Friday to re-do the process. Those actions were giving a new meaning to filibustering. Filibustering normally was when people spoke throughout a process but it was quite clear that it was serial filibustering to stop the Bill and to set the precedent for a legal case.

Ms B Mathevula (EFF, Limpopo) asked if they were going to go back and vote again if they had not voted very well in the previous meetings. Was the Committee going to go back and re-vote or what method would be used to go forward?

Ms Moshodi concurred with the sentiments raised by Mr Mmoiemang and Mr Dangor. The issue was clearly explained by Adv Ally from the onset. She had been given a task, which she had carried out and presented to the Committee. In short, she and her colleagues were not going to allow the matter to be delayed further. They should just get on with it.

Mr Brauteseth understood where the Members were coming from with the accusation of filibustering but if one did something wrong, it had to be repeated two or three times; if it was done right the first time, one did it once. As a Member of Parliament, he was concerned about doing his job properly. He asked if anyone could recall, definition by definition clause by clause, subsection by subsection how everyone voted, and whether they had voted correctly. If so, he would be impressed. There were instances where Members voted as individuals and instances where they voted as provinces and then halfway through, the process was corrected. Adv Ally had set out the group procedure and he had no argument with that. His concern is that they might not have voted correctly.  He did not want to restart the process but to conduct a review of the record of how each one voted.  The Committee should carry on and then circle back to correct any errors. Everyone knew that the legislation was going to be hotly contested as there were important players in the field and he did not want the Committee to be accused of doing things incorrectly.

Mr J Londt (DA, Western Cape) fully supported Mr Brauteseth as there was a concern that the Committee might have tripped over themselves. They had to make sure that they did not make any mistakes. All the decisions had to be correct before they were sent to the provinces.

The Chairperson requested Adv Ally to address the proposals in her responses.

Adv Ally stated that if Members recalled when they had the meeting the previous Wednesday, the question was posed and she had very clearly said to Members that they were voting as provinces as it was a section 76 Bill (i.e. one vote per province). Each province had one vote in terms of the way the Committee voted. Ms Mathevula and Ms N Tafeni (EFF Eastern Cape) indicated that they had strong views that they wanted to be noted with regard to the provisions of the Amendment Bill together with the Bill that was before the Committee. The rules made provision for such views to be recorded within the report. They did vote but when Ms Solomons, Committee Secretary, called out the vote, she would say Mr Rayi Eastern Cape, Ms Mamaregane Limpopo, and so on and so. When it came to the votes against the proposed amendments, as well as the abstentions, Ms Solomons followed the same procedure. So although the names of Ms Mathevula and Ms Tafeni were noted, by no means were they being allowed to vote in their individual capacity; it was voting by provinces. It was not a formal vote, but merely the views of those Members that were noted.

She asked for clarity from the Committee, especially Mr Brauteseth. Were members asking that the secretariat should make a list of those Members who had voted contrary to the mandate? Were they willing to change their votes? She did have those records. She repeated the point that the secretariat had merely recorded the views of the two EFF Members

The Chairperson understood that there was a concern that Ms Solomons had just recorded names without mentioning provinces in some instances. Later, Mr Dangor explained that she should record the province and then the Member's name where it was a provincial vote and only the name where it was an individual vote. Mr Brauteseth wanted to go back to those clauses and correct the recorded votes. That was the proposal. 

Mr Londt trusted that the Chairperson was on the same page as he and Mr Brauteseth. There were also instances where colleagues from the governing party (ANC) voted against the mandate that was separated from the province. And that was the clarity that Ms Boshoff and Mr Brauteseth had sought. They had both been voting in certain ways that might not always agree with the provincial mandates. It had been pointed out that that was not 100% correct. But there had also been cases of the governing party Members going against the mandates. And that was why they were asking that he make sure that the Committee went through everything. They did not want to make any mistakes. So that when the report went to the provinces, it was correct.

The Chairperson noted that Mr Londt agreed with Adv Ally’s understanding of the process.

The Committee Secretary stated that the minutes for 13 June and 14 June 2023 were ready for circulation to Members. She had not yet circulated them to Members pending the outcome of the decision of the Committee in terms of how to deal with the votes from Limpopo and the Eastern Cape. She proposed that the Committee adopt those minutes and then Members could see in the minutes how those votes were captured. Clause-by-clause voting was captured per province, based on the procedural advice from Advocate Ally. 

Mr Mmoiemang proposed that the matter needed to move forward. It had been almost an hour that the Committee had been discussing the matter. The procedure had been clarified. The law was categorical. He proposed the Committee move forward.

Mr Brauteseth was surprised that Mr Mmoiemang, a person with legal training, suggested that they should just gloss over what was quite possibly very problematic. He formally requested that Members be given the minutes and some time to go through the minutes, and then the Committee could reconvene to discuss the minutes. To rush through in the way that Mr Mmoiemang proposed would be irregular. He asked for the circulation of the minutes and that the Committee adjourned for some time to read the minutes. 

Mr Londt thanked the staff for getting all the documentation and the minutes ready. He supported Mr Brauteseth’s proposal.

Ms Boshoff concurred with the suggestion of Mr Brauteseth and Mr Londt. 

Mr Dangor suggested that as people were "setting the precedent" to go to court, the Committee needed to be careful and follow the rules carefully. If they were unable to conclude the matter that day, then the Committee should meet for a full day on Friday to deal with the matter so the Bills were not filibustered to the point where the Committee could not proceed with the Bills.

The Chairperson suggested that the Committee continued with the voting process because they were all clear about the voting and the minutes could be circulated in the meantime. When Members had completed the process of voting, they could go back to the minutes to see if there were any discrepancies. If there was time, that could be done in the afternoon but if not, they could reconvene on Friday to consider the minutes and see whether they could get everything already dealt with in line with the procedures.

Ms Moshodi concurred with the Chairperson’s ruling. They were wasting their time with some of the things that were going on.

Mr Londt said the proposal was different from both those put forward by the Members. He and Mr Brauteseth had only asked for an hour to adjourn and go through the minutes. Some Members had a lot of other programmes to manage on Friday and could not make last-minute changes. He explained the difficulties of adding a meeting without consultation with Members. He did not appreciate a proposal that was somewhere in the middle, because that did not show respect to any of them nor allow them time to sort their diaries.

The Chairperson suggested taking a vote on Mr Brauteseth’s proposal.

Ms M Mamaregane (ANC, Limpopo) supported Ms Moshodi’s proposal that the Committee continues with the meeting.

The Chairperson called for a vote on Mr Brauteseth’s proposal.

The Committee Secretary stated that those in support of the proposal were Mr Londt, Ms Boshoff, Ms Mathevula and Mr Brauteseth. 

The Committee Secretary indicated that those who had voted against were: Mr Mmoiemang, Mr Dangor, Ms Moshodi, Ms Mamaregane, Mr Landsman and Mr Rayi.

There were no abstentions.

The Chairperson called for votes for the proposal that the minutes be circulated and the meeting continued; the minutes would be considered that afternoon or on Friday.

The Committee Secretary indicated that those who had voted in favour were: Mr Mmoiemang, Mr Dangor, Ms Moshodi, Ms Mamaregane, Mr Landsman and Mr Rayi.

The Committee Secretary stated that those against the proposal were Mr Londt, Ms Boshoff, Ms Mathevula and Mr Brauteseth. 

The Chairperson stated that the decision was that the Committee would continue with voting on each clause and Members would consider the minutes at the end of the meeting or on Friday, depending on the time.

Mr Londt put it on the record that he raised a concern about the manner in which Members of the Committee were treated, with complete and utter disregard and disrespect for their diaries, the programmes they were trying to run in provinces and constituencies, and the way the matter was being pushed through by the ANC using the numbers to push through problematic legislation. He suggested that there were ways in which matters could have been better handled. He wanted it on record so that everybody was well aware of what happened or did not happen behind the scenes by pushing the Bills through with scant regard for any voices outside of the ANC.

The Chairperson responded that no one could have foreseen the events of the morning and the proposal to go back and check on previous voting, so there could not have been decisions and caucuses outside of the meeting. He reminded Mr Londt that Tuesdays to Fridays were Committee days. So Friday was a parliamentary day. So there was nothing that was undermining any party or individual in terms of what is being done. It had been a democratic process that we have just agreed to.

Mr Londt repeated his dissatisfaction.

Ms Boshoff informed the Chairperson that the secretariat had just posted a note that the Committee had decided to go on Friday for the visas. She asked him to keep that in mind.

The Chairperson stated that when they finished the meeting, then they could debate the matter on Friday.

Constitutional and Legal Services Office (CLSO) and Department of Trade, Industry and Competition (DTIC) responses to provincial negotiating mandates

Copyright Amendment Bill

Clause 24
Clause 24: Section 21 – Commissioned Work (page 67 of Copyright Negotiating Mandates for details of provincial mandates and responses)
Adv Charmaine van der Merwe, Legal Advisor, CLSO, said the proposal from Gauteng was that the current regime that the Act set up should be retained; a proposal from the Northwest in respect of concern in granting the tribunal license to set up the relationship between the parties.  However, Adv van der Merwe said the Tribunal's role is very limited and provided a role for the Tribunal to protect the author's rights.

Dr Masotja stated that the provisions of commissioned works were extensively debated in the parliamentary process. And there were complaints about how the contracting takes place between the parties affected and the need for intervention around the importance of an agreement when it came to commissioned works. The role of the tribunal, as indicated by the advocate, was limited in terms of when the work was not used and or used for other purposes than that for which it was intended. The intention was to provide protection for the authors, and a framework that governed how commissioned work applied.

Recommendation: The proposed amendments were not recommended - The provisions of the Commissioned works as they were in the Bill created more clarity and protection than before. The proposed amendments were substantive and had the potential to reverse the rights and protections intended in the Bill – they would need further scrutiny before being considered.

The Chairperson called for the vote.

Mr Brauteseth had a conundrum. He was hoping that Adv Ally could help him. The KZN mandate supported the Bill, subject to the amendments proposed in the committee report. The committee report just reported on all the input given during the public participation process, but it did not say what the committee proposed as amendments. He was at a loss as to how to vote. The committee had “kind of copped out”.

Adv Ally agreed that the mandate from the KwaZulu-Natal provincial legislature was problematic and that what Mr Brauteseth said was correct. However, the Member had to toe the line. If the mandate clearly indicated that the legislature supported the law, in essence, they agreed to any proposals coming from the negotiating procedure, which meant the Member should be voting in favour of the proposed amendments.

Mr Brauteseth said that the negotiating mandate agreed to support the Copyright Amendment Bill, with the following proposed amendments, as outlined in the committee report attached hereto but then did not tell him which amendments those were. He thanked Adv Ally for her advice, but it was cavalier and he needed to have a clear idea as to where I'm going. Thank you.

Adv Ally asked the Member whether he had followed up with the legislature on the legitimacy of the mandate as was her advice earlier on. The staff had queried the provisions of the mandate. If Mr Brauteseth had brought the issue to the attention of the legislature, perhaps the situation could have been curtailed before the meeting began.

Mr Brauteseth noticed that Adv Ally was getting into “whataboutery”. Would she like to quote the rule that compelled him to do that because they were getting into a legal dispute? Where was the rule that compelled him to do that?

Adv Ally said there was no such rule that mandated him to do so. However, in terms of administrative justice and ensuring that the document had been given its due diligence, she would have thought that a diligent Member such as he would have enquired in terms of the provisions of the mandate. It was just a query on her side. 

The Chairperson noted hands up. 

Mr Londt noted that the first response that delegates should toe the provincial line took him back to his previous question and comment. If his memory served him correctly, there had been several instances of Members, especially from Gauteng, that did not vote according to the provincial mandate. And based on what Adv Ally said those delegates were acting correctly. If not acting illegally, they were definitely outside of what they were mandated to do, which put a question against the entire process. Now they were going to go down that road again when they had not resolved the earlier ones. He appealed to the Chairperson that the Committee cleared up that matter. There had been an earlier proposal to get the matter sorted before moving on.

Mr Mmoiemang stated that, again, the discussion was just another means of delaying matters. The Committee had to move forward with the mandate of the meeting. Provinces were quite clear that eight provinces supported the Bill.

Mr E Landsman (ANC, North West) had been covered by Mr Mmoiemang. 

Ms Boshoff had been covered by Mr Londt but she wanted to assure Mr Mmoiemang that nobody was trying to delay anything; she and her colleagues were just following the rule of law. The Mpumalanga mandate conferred the obligation on the permanent delegate to negotiate in favour of the Bill with amendments as proposed. The amendments were stipulated but it did not say what to do regards the amendments.

Mr Brauteseth assured the Chairperson that he was not trying to delay matters. He had a conundrum because the mandate looked like a final method, which it was not, and then specifically referring to Adv Ally's input, it refers to the following amendments, but it did not list the amendments. That left him in a position as a delegate from KZN as he did not know what he was voting for. And so, therefore, he was going to have to abstain on everything. The problem was that could be seen as voting against the mandate given to him. But effectively it was a defective mandate. It was confirmed that it was a problematic mandate. So that was the guidance he was asking for. He was being asked to vote from a defective, problematic mandate.

He did not know which clauses to look out for and then Adv Ally said that he should have gone and spoken to the provincial committee. They would hardly change the position simply because Tim Brauteseth told them to change it. It was not a valid mandate so he was in a position where he could not support or vote against anything. The obvious way around that was to go back to the provinces formally and request a proper negotiating mandate. He had good legal training and knew that when people insisted on a specific rule, it was best to refer to the rules of administrative procedures, natural justice, etc. But that meant they were searching for an answer.

Mr Londt repeated his problem with Gauteng voting contrary to its mandate. He also repeated his argument that the SEIAS assessment report was not sent to provinces, except the one that had asked for it. Further, that report spoke only to the impact on the government, not on industry. So, provinces had to vote on mandates without the full picture. That was a massive, massive issue. He suggested that the Committee should just pause and get its ducks in a row and then continue instead of making a fatal mistake.

Mr Landsman stated that the Committee had been discussing the same thing a number of times and had even asked to vote on the matter. The Chairperson was opening it up again, to discuss the same issues they had been discussing since the morning. Could the meeting move forward?

The Chairperson said he would listen to Mr Mmoiemang and Adv Ally and then he would move on.

Mr Mmoiemang stated that Mr Landsman had captured his concern. The provinces had clearly and categorically stated that they were in favour of the Bill although there were certain issues that they raised as part and parcel of negotiating. But in principle, they supported the Bill. The Committee had resolved the procedure to deal with issues that Members raised. The Committee would deal with them on Friday.

The Chairperson returned to the voting process.

Adv Ally added a last point concerning the mandate from KwaZulu-Natal. The administrators had spoken to their counterparts in the KZN legislature and it was confirmed that the mandate stood and the legislature would not review it.

The Chairperson noted the response from KwaZulu-Natal. He called for the vote.

Mr Brauteseth noted that they were not going to review the defective mandate and he refused to adhere to it.

Ms Boshoff suggested that other Members were trying to be the Chairperson. It was a democratic process and everybody should be allowed to voice their opinions. She concurred with Mr Brauteseth. She would also take the Mpumalanga mandate as a defective mandate.

The Chairperson focused on the vote, asking Members to raise their virtual hands.

The Committee Secretary reported that voting for the acceptance of the CLSO/DTIC responses to section 21, were: Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi

Mr Londt wished to raise a question regarding the vote.

The Chairperson explained that they could not discuss the vote then as he had called for a division.

Mr Londt stated that his vote would not count for anything because he needed clarity the Chairperson was forcing him not to vote.

The Chairperson called for votes against the provision.

The Committee Secretary reported no votes against.

The Chairperson called for abstentions.

The Committee Secretary reported that abstentions in response to the CLSO/DTIC recommendations for section 21 were as follows: Ms Mathevula; KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.

The vote was carried.

Mr Londt stated that it came back to what Adv Ally had said earlier. It was said that the Western Cape did not support the flawed and badly written legislation and none of the inputs given by the Western Cape, or the other provinces, had been considered by the Department or the Legal Advisor, and they had said a few times, they did not want to consider the inputs because that meant that the process might be delayed. That spoke to steamrolling something through. If he was not allowed to vote in any other way than the provincial position, he would vote against every single clause.

He added that he had already pointed out that some Members were not voting in accordance with their mandate. Gauteng was one such. The rules should be applied fairly across the board. Other Members with flawed mandates would have to abstain. It was all going to come back on them and the Chairperson, unfortunately, would be the face of the Committee that had not done things correctly.

The Chairperson noted the points.

Clause 25: Section 22 (Reversion Right)
Adv van der Merwe said the proposals were from Gauteng in respect of collective management organisations (CMOs) and the 25-year limitation, indicating that it should be debated. Limpopo and Mpumalanga also submitted a concern about the reversion right.

Dr Masotja said the DTIC was not clear about the comment on CMOs, but it might be informed by foreign jurisdiction legislation. It would not fit in the SA legislative framework. The reversion right policy had been informed by the Copyright Review Commission Report that had been commissioned by the Department. It had recommended that the reversion right be provided for from a policy point of view because there had been challenges with the assignment of rights, especially when it came to literary or musical works.  The Commission found that 25 years was sufficient time for the investment to be recouped. The policy was not unique to South Africa and would assist with levelling the playing field for authors as well as rights holders. The DTIC view was that there should not be any amendments to that provision.

Recommendation: No amendments recommended – the intention with the clause was to ensure a new contract after the rights bought had been exploited for a period.

The Chairperson asked Members to go back to clause 24. They had voted on the proposed amendments but not on the clause as a whole. He called for voting on clause 24 as a whole.

The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 24: Free State; Limpopo, North West, Gauteng, Northern Cape, and Eastern Cape.
Votes against the acceptance of clause 24: Western Cape.
Abstentions from voting on clause 24 were as follows: KwaZulu-Natal, Mpumalanga, Ms Mathevula noted.
The vote was carried.

The Chairperson called for votes on section 22, clause 25.

The Committee Secretary reported that the voting was as follows:
For the acceptance of recommendation on s22: Free State; Limpopo, North West, Gauteng, Northern Cape, and Eastern Cape.

Votes against the recommendation on s22: Western Cape.

Abstentions from voting on section 22 were as follows: KwaZulu-Natal, Mpumalanga, Ms Mathevula noted, Ms Tafeni noted.

The vote was carried.

The Chairperson called for votes on clause 25.

The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 25: Free State; Limpopo, North West, Gauteng, Northern Cape, and Eastern Cape.
Votes against the acceptance of clause 25: Western Cape.
Abstentions from voting on clause 25 were as follows: KwaZulu-Natal, Mpumalanga, Ms Mathevula noted.
The vote was carried.

Clause 26 section 22A (Orphan Works)
Adv van der Merwe said that in respect of the orphan works, section 22A, clause 26, Gauteng was concerned about the whole practice and how it would proceed. KwaZulu-Natal felt that the definition should not proceed while Mpumalanga supported the need to have that kind of exception. Northern Cape was concerned that it should be per sector but that was what the Bill provided for. The North West was concerned about the definition of orphan works. Western Cape proposes that the words " "cannot reasonably be identified" be added to the definition of orphan works. 

Dr Masotja said that orphan works were the works where one was not able to locate the copyright owner which could negatively impact the creative process of other artists because they could not have access to the person who was the owner of the works, then the works became misplaced and could not be identified. The Bill provided a framework for those types of work to identify the locations of the owners and also a remuneration process. It would make a difference in terms of those works that could not be identified or the owners of those works that could not be identified. Other countries had those provisions. They also had search facilities, licensing, and issues of remunerations. The UK was one of the examples. She supported that the provision be retained as it would make a difference in terms of supporting orphan works in the creative industry.

Recommendation: No amendments were recommended – the provisions were necessary and were based on an international example.

The Chairperson called for a vote on Section 22.

Mr Brauteseth said that he was not trying to delay things but Advocate van der Merwe spoke of the KwaZulu-Natal position on section 22. Did she perhaps have a document that he did not have because the documents before him from KZN then did not express an opinion?

The Chairperson noted that the mandate document stated that the position was advanced by other interested parties, i.e. stakeholders, and not necessarily the province.

Mr Brauteseth asked that everyone be careful with language and terminology and not ascribe stakeholders' positions to the provincial committee.

Adv van der Merwe believed that everyone agreed that the mandates were quite different from what was normally seen. In trying to make sure that they did not miss anything that came from the provinces, they had tried to draw everything from the reports but it was unfortunate that it did not necessarily present the provincial picture but it provided a comprehensive reference to each province. She tried to summarise when she read out because there had already been an opportunity for the mandates to be read out.

The Chairperson stated that he would allow questions after the presentation of a clause and before the vote in the future. He called for voting on the CLSO/ DTIC responses to section 22A of clause 26.

The Committee Secretary reported that the voting was as follows:
For the acceptance of CLSO/DTIC recommendations on section 22A: Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on section 22A: Western Cape Mr Londt.
Abstentions from voting on CLSO/DTIC recommendations on section 22A: were as follows: Ms Mathevula; Ms Tafeni; KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

Mr Brauteseth wanted to ask Adv van der Merwe a question, but he could do it after the vote. He needed clarity but not about the specific vote.

The Chairperson suggested that he ask his question after the vote.

The Chairperson called for a vote on clause 26.

The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 26: Free State; Limpopo, North West, Gauteng, Northern Cape, and Eastern Cape.
Votes against the acceptance of clause 26: Western Cape.
Abstentions from voting on clause 26 were as follows: KwaZulu-Natal, Mpumalanga, Ms Mathevula and Ms Tafeni noted.

The vote was carried.

Mr Brauteseth wanted clarity from Adv van der Merwe. He asked her to confirm that in the absence of a clear mandate from a province, she was drawing inferences from the engagement with stakeholders via the public participation process.

Mr Mmoiemang stated that the question was not correct. The Member could not put that question to the Advocate.

The Chairperson requested Adv van der Merwe to respond to the question.

Adv van der Merwe read from the KZN Negotiating Mandate:
The Portfolio Committee on Economic Development and Tourism met on Saturday, 13 May 2023, and agreed to mandate the KwaZulu-Natal Delegation to support the Copyright Amendment Bill [B13D-2017]; with the following proposed amendments as outlined in the Committee Report, attached hereto. (P1)
It is clear from the written submissions that there are opposing views on the policy that should inform the Bills …  This report attempts to cover the issues raised in the written submissions under broad topics or
policy themes. (Annexure p34)

That was all that she could find that indicated a view of the KwaZulu-Natal legislature. She understood that it was difficult for the delegate from KZN to vote in terms of that mandate because there was no clear decision from the province on whether it supported the views or whether it was just an analysis. She thought it was important because the legislature had referred to the report and so the issues had been included.

The Committee had a five-minute break.

Mr Brauteseth understood that Adv van der Merwe had difficulty, and she was forced to draw inferences from what was effectively a defective mandate.

The Chairperson noted the comment.

Clause 27 – Chapter 1a (Collecting Societies)
Adv van der Merwe stated that what CLSO and DTIC received from provinces on that chapter was mainly support for a stricter regime for collecting societies. There was a request from the Northern Cape for a performance tribunal and the Department would speak to that. There was also a concern about royalties and how that would work with social media and streaming platforms. The Department would also respond to that. Only two sections received inputs. On section 22C, which was part of this chapter and so part of this clause, there was a suggestion from Gauteng that a clause simply read that remittance of the royalties, was subject to a reasonable and valid agreement between a foreign CMO and a local one. The Department would also speak to that. And then from Gauteng, there was also a suggestion for rewording subsection five of section 22(f) related to a suspension or cancellation of a CMO. They were all policy-related issues.

Dr Masotja said that in terms of the chapter on collecting societies, DTIC agreed that the framework that was in the Bill improved the regulation of collecting societies. In the past many challenges related to governance, management, and the rolling out of how the collecting societies dealt with matters on a day-to-day basis. The Bill ensured that the regulator was given certain rights and powers to be able to accredit CMOs to make sure that there was order in terms of how funds were managed, reported and governance systems. In terms of the question about the tribunal, although the section was about the collecting society, one concern was that there should be a collecting society for performers and so that provision was very significant. In terms of the foreign collecting societies, there were provisions for foreign collecting societies and the Bill promoted reciprocal relationships. The Bill provides for foreign jurisdictions and foreign CMOs.

Recommendation: No amendments were recommended – a stricter regime for collecting societies is required. No engagements will be dictated. The Minister's prescripts would relate to minimum terms, which were accepted in contract law.

The Chairperson asked if there were any questions for clarity before the vote on our members as he did not want questions for clarity in the middle of voting. Voting on Chapter 1A.

The Committee Secretary reported that the voting was as follows:
For the acceptance of CLSO/DTIC recommendations on Chapter 1A: Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on Chapter 1A: Western Cape Mr Londt.
Abstentions from voting on CLSO/DTIC recommendations on Chapter 1A: were as follows: Ms Mathevula; Ms Tafeni; KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

The Chairperson called for a vote on clause 27.
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 27: Free State; Limpopo, North West, Gauteng, Northern Cape and Eastern Cape.
Votes against the acceptance of clause 27: Western Cape.
Abstentions from voting on clause 27 were as follows: KwaZulu-Natal, Mpumalanga; Ms Mathevula noted.
The vote was carried.

Clause 28 – no proposed amendments
The Chairperson called for a vote on clause 28.
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 28: Free State; Limpopo, North West, Gauteng, Northern Cape, and Eastern Cape.
Votes against the acceptance of clause 28: Western Cape.
Abstentions from voting on clause 28 were as follows: KwaZulu-Natal, Mpumalanga; Ms Mathevula noted.
The vote was carried.

Clause 29: Section 27 (Offences)
Adv van der Merwe said there was also a proposal from KZN in respect of civil remedies to be provided for by the Department. KZN also made it very clear that the intention must be made very, very clear, and in that respect, Legal Services proposed some Amendments to the Bill to give effect to that proposal regarding intention. But in respect of the intention part, we recommend that under paragraph a(5)B, sub-paragraphs (ii) and (iii) be combined because that would make it clear that there was a requirement for intention and it could not be an unintended transgression of the Act. The proposals for new offences to be inserted were not accepted as the first proposal would have resulted in every person who owned a cell phone would be committing a crime just by owning the cell phone. Other proposals were already included. Regarding the recommendation to include specific monetary amounts, the Department of Justice had advised that it would then not be future-proof. 

Dr Masotja had extensively considered the issue of civil remedies versus criminal remedies. Because of the seriousness of the challenges of online infringements, and the current digital challenges with the works that were exploited online without fair remuneration to rights holders or the creators, it was decided that the penalties or measures taken against the offence should be very strong and serious.  Internationally, there was a need for a strong intellectual property regime that ensured enforcement given the issues of online infringement. The matter was extensively debated in the National Assembly. With the proposed amendment, those who contravened intentionally would be aware of the consequences.

Recommendations: No amendment required – the subsection did not depend on activities being commercial.

The Chairperson called for the voting in respect of clause 29, section 27 and the proposed amendment. The Committee Secretary reported that voting was as follows:
For the acceptance of CLSO/DTIC recommendations on section 27 and the proposed amendment.: Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on section 27 and the proposed amendment: Western Cape Mr Londt.
Abstentions from voting on CLSO/DTIC recommendations on section 27 and the proposed amendment: were as follows: Ms Mathevula; KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

The Chairperson called for voting on clause 29 with the proposed amendment.
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 29 with the proposed amendment: Free State; Limpopo, North West, Gauteng, Northern Cape, and Eastern Cape.
Votes against the acceptance of clause 29 with the proposed amendment: Western Cape.
Abstentions from voting on clause 29 with the proposed amendment were as follows: KwaZulu-Natal, Mpumalanga; Ms Mathevula noted.
The vote was carried.

Clause 30 Section 28
Adv van der Merwe said a concern was raised. She did not recommend an amendment as there was no conflict with section 23(2) of the Act.

Dr Masotja concurred with Adv van der Merwe.

Recommendation: No amendment is recommended – there is no conflict between the sections.

The Chairperson called for a vote on section 28.
The Committee Secretary reported that the voting was as follows:
For the acceptance of CLSO/DTIC recommendations on section 28: Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on section 28: Western Cape Mr Londt.
Abstentions from voting on CLSO/DTIC recommendations on section 28: were as follows: Ms Mathevula and Ms Tafeni; KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

The Chairperson called for voting on clause 30.
The Committee Secretary reported that voting was as follows:
For the acceptance of clause 30: Free State; Limpopo, North West, Gauteng, Northern Cape and Eastern Cape.
Votes against the acceptance of clause 30: Western Cape.
Abstentions from voting on clause 30 were as follows: KwaZulu-Natal, Mpumalanga; Ms Mathevula and Ms Tafeni noted.
The vote was carried.

Clause 31: Insertion of Sections 28O, 28P, 28Q, 28R AND 28S (Technological Protection Measures And Copyright Management Information)
Adv van der Merwe indicated she would make a general comment and then focus on section 28P because there were amendments to this provision and then she would move to the other sections. A concern was raised that the Bill should be strengthened to protect against abusive practices but the Bill already did that.

Adv van der Merwe addressed section 28P(1)(a). Proposals related to the wording currently made it possible to contravene something in the Act that was allowed by the Act. The proposal was to insert the words "by law, including".  Section 28P(2) was affected by the BlindSA case and should be deleted in full. She had dealt with that when discussing section 19D but the Committee had to vote on it. And then in 28P(3), there were consequential amendments, in other words, to remove the reference to subsection two.

She added that Northern Cape had concerns relating to the Electronic Communications and Transactions Act in section 28 because that was removed from the Bill. However, those specific sections in the Electronic Communications and Transactions Act were removed by the Cybercrimes Act and were no longer in existence.

Dr Masotja clarified that the Bill did provide for digital rights in the new insertions and in the various provisions that had been made on the technological protection measures and the copyright management information. In terms of the CLSO proposals to Section 28P, DTIC made the same recommendations. 

Recommendation: Agree with the proposed amendments – wording proposed bold:
Exceptions in respect of technological protection measures 28P. (1)(a) Nothing in this Act shall prevent any person from
using a technological protection measure circumvention device or service to perform any of the following:
(a) An act permitted by law, including in terms of any exception provided for in, or prescribed under, this Act; or…”
…
[(2) ….] (Delete in full)
[(3)] (2) A person engaging the services of another person for assistance to enable such person or user to circumvent a technological measure [in terms of subsection (2)(b)] shall maintain a complete record of the particulars of the—…”

The Chairperson called for votes in respect of section 28P, amendments to (1)(a), (2),(3)(2).
The Committee Secretary reported that the voting was as follows:
For the acceptance of CLSO/DTIC recommendations on section 28P, amendments to (1)(a), (2),(3)(2): Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on section 28P, amendments to (1)(a), (2),(3)(2): Western Cape Mr Londt.
Abstentions from voting on CLSO/DTIC recommendations on section 28P, amendments to (1)(a), (2),(3)(2): were as follows: Ms Mathevula; Ms Tafeni; KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

Clause 31: Section 28Q: Enforcement by Commission
Adv van der Merwe said the proposal from Gauteng was to delete Q which dealt with enforcement by the Commission. It was a policy matter.

Dr Masotja explained that the Commission was the Companies and Intellectual Property Regulator and regulatory entities of the DTIC were an enforcement entity. The Commission's role was very important because of issues of enforcement that would emanate from the law, and also from their role in terms of the mandate related to juristic persons from the Companies Act point of view. It was not clear from the submission by the province, why the role of the regulator should not be in the legislation. DTIC was of the view that it was a very important provision that talked to the role of regulatory entities when it comes to enforcement and oversight over legislation.

Recommendation: The proposed deletion was not recommended – the section empowered the Commission to enforce the Act and the role of the regulator was key in enforcing the Act.

The Chairperson called for a vote on section 28Q of clause 31.
The Committee Secretary reported that the voting was as follows:
For the acceptance of CLSO/DTIC recommendations on section 28Q of clause 31: Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on section 28Q of clause 31: Western Cape Mr Londt.
Abstentions from voting on CLSO/DTIC recommendations on section 28Q of clause 31: were as follows: Ms Mathevula; KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

The Chairperson indicated the vote on clause 31:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 31: Free State; Limpopo, North West, Gauteng, Northern Cape, and Eastern Cape.
Votes against the acceptance of clause 31: Western Cape.
Abstentions from voting on clause 31 were as follows: KwaZulu-Natal, Mpumalanga; Ms Mathevula noted.
The vote was carried.

Clause 32 No amendments proposed
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 33: Free State; Limpopo, North West, Gauteng, Northern Cape and Eastern Cape.
Votes against the acceptance of clause 32: Western Cape.
Abstentions from voting on clause 32 were as follows: KwaZulu-Natal, Mpumalanga; Ms Mathevula noted.
The vote was carried.

Clause 33 – Sections 29A, 29B, 29C, 29D, 29E, 29F, 29G and 29H (Tribunal)
Section 29A (Functions of Tribunal)/ Section 29H (Orders of Tribunal)
Adv van der Merwe said that in clause 33, there were two sections with proposed amendments. The first was in respect of section 29A, the functions of the Tribunal. The proposal from Gauteng related to what the Tribunal could do, and the Department would speak to that. In respect of the orders of the Tribunal section 29H, Gauteng proposed that there should not be any administrative fines. The Department would respond.

Dr Masotja stated that the role of the Tribunal was very important in terms of dispute resolutions that would arise from agreements and other matters and would help to create more rights, protection of those rights and provide a platform for dispute resolutions relating to agreements and royalties. The discretion and independence of the Tribunal should be sustained because it was an independent tribunal, established in terms of the law and it would have the right and the powers to be able to work around different matters in a fair and judicial manner. On section 29H which addressed administrative fines, DTIC was of the view that the Tribunal should be able to impose fines and other remedies depending on the matters or circumstances at hand.

Recommendation: Section 29A: The proposed amendment was not recommended – the Bill sufficiently provided for the powers of the Tribunal – there should be a level of discretion allowed.
Recommendation: Section 29H: Proposed amendment not recommended – that was important to empower the Tribunal to deal with disputes.

The Chairperson called for voting on section 29A.
The Committee Secretary reported that the voting was as follows:
For the acceptance of CLSO/DTIC recommendations on section 29A: Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on section 29A: Western Cape Mr Londt.
Abstentions from voting on CLSO/DTIC recommendations on section 29A: were as follows: Ms Mathevula; Ms Tafeni; KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

The Chairperson called for voting on section 29H.
The Committee Secretary reported that the voting was as follows:
For the acceptance of CLSO/DTIC recommendations on section 29H: Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on section 29H: Western Cape Mr Londt.
Abstentions from voting on CLSO/DTIC recommendations on section 29H: were as follows: Ms Mathevula; Ms Tafeni; KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

The Chairperson indicated the vote on clause 33:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 33: Free State; Limpopo, North West, Gauteng, Northern Cape and Eastern Cape.
Votes against the acceptance of clause 33: Western Cape.
Abstentions from voting on clause 33 were as follows: KwaZulu-Natal, Mpumalanga; Ms Mathevula and Ms Tafeni noted.
The vote was carried.

Clause 34: no amendments
The Chairperson indicated the vote on clause 34:
The Committee Secretary reported that voting was as follows:
For the acceptance of clause 34: Free State; Limpopo, North West, Gauteng, Northern Cape and Eastern Cape.
Votes against the acceptance of clause 34: Western Cape.
Abstentions from voting on clause 34 were as follows: KwaZulu-Natal, Mpumalanga; Ms Mathevula and Ms Tafeni noted.
The vote was carried.

Clause 35 – Section 39 (Regulations)
Adv van der Merwe said the Free State expressed concern about a one-size-fits-all approach to payment of royalties. And then the Free State and a number of other provinces expressed concern in respect of minimum standards for contracts. The proposals were for the deletion of subsection (c)G which dealt with these minimum standards for contracts. The Department indicated the need for that because it was for the protection of vulnerable parties and so deletion could not be supported but Adv van der Merwe presented two options in respect of a change in wording. Members could decide on which one to choose or simply vote for a change of wording and wording would be proposed in the E-list.

Addressing the issue of the one-size-fits-all approach to royalties, Adv van der Merwe proposed an amendment to (c)I to state clearly that the royalty rates or tariffs were only in respect of the resale of royalty rights.  Gauteng proposed an extension to the period of advertising of the regulations to 60 days, and the Department would speak to that.
 
Responding to the recommendation to extend the period to put out the regulations to the public to 60 days, Dr Masotja explained that the public could make a request for an extension and it did not have to be stipulated in the legislation. In terms of the proposed amendments, DTIC supported them, especially the minimum requirements or the support for protection when it came to contractual agreements and that the only royalties that could be prescribed were for the resale royalty rights, such as original artworks.

 Recommendations: Clause 35 – Section 39 (Regulations)
“One-size-fits-all”: No amendments recommended – The Bill provides for all types of royalties. It is also proposed (see above) that equitable remuneration be included in the Bill.
“Minister’s powers to prescribe”: The proposals to remove the power of the Minister to prescribe in relation to terms of a contract are not recommended. The purpose is to ensure protection for vulnerable parties who do not have a strong negotiating base when entering into agreements.
-However, the following amendments are proposed to ensure that the Bill is clear on the nature of what the Minister may include in regulations (an option is provided in respect of wording) – see the font in bold:

“(cG) prescribing [compulsory and] standard contractual terms reflecting rights or protection afforded by this Act, [to] that must be included in agreements to be entered in terms of this Act;
OR
(cG) prescribing [compulsory and] the standard [contractual terms to be included in] elements for agreements to be entered in terms of this Act, to ensure that rights or protection afforded by this Act are duly provided for;

- To avoid a one size fits all approach iro royalties, it is also recommended that the regulations related to royalties are limited to Resale Royalty Rights as recommended by the Farlam Commission. Proposed amendment:

(cI) prescribing royalty rates or tariffs for [various forms of use] resale royalty rights;…”

The Chairperson asked Members whether they would prefer the first or the second option for (cG).

Mr Mmoiemang proposed the second one because it had an elaboration: “to ensure that rights or protection afforded by this Act are duly provided for”, whereas the first one did not have that elaboration. The second one was more appealing and more understandable than the first one.

Ms Moshodi seconded the proposal.

There were no contrary views.

The Chairperson called for a vote on section 39(cG), second option, and (cI).
The Committee Secretary reported that the voting was as follows:
For the acceptance of CLSO/DTIC recommendations on section 39(cG), the second option, and (cI): Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on section 39(cG), second option, and (cI): None
Abstentions from voting on CLSO/DTIC recommendations on section 39(cG), the second option, and (cI): were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula, Ms Tafeni (noted).

The Chairperson indicated the vote on clause 35:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 35: Free State; Limpopo, North West, Gauteng, Northern Cape, and Eastern Cape.
Votes against the acceptance of clause 35: Western Cape.
Abstentions from voting on clause 35 were as follows: Mpumalanga; Ms Mathevula and Ms Tafeni noted.
The vote was carried.

Clause 36 – Section 39B (Unenforceable Contractual Term)
Adv van der Merwe indicated that the concern was again related to contractual freedom. The Department would respond because it was a policy matter.

Dr Masotja explained that the clause, and the provision, aimed at ensuring protection for the authors and the rights holders in cases where there was a violation of the legislation where certain provisions were not taken into consideration and the law was not applied the way it was intended and then the law became unenforceable. However, those measures would weaken the protection because it added an additional burden for the rights holders to be subjected to a tribunal process instead of having an automatic right as intended in the Bill. The DTIC recommended that the amendment not be taken into account and not be considered.

Recommendation: The proposed amendments are not recommended – the Bill must provide stronger protection to vulnerable parties to a contract. The proposed wording adds an administrative burden on the vulnerable party.

The Chairperson called for a vote on section 39B.
The Committee Secretary reported that the voting was as follows:
For the acceptance of CLSO/DTIC recommendations on section 39B: Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on section 39B: None
Abstentions from voting on CLSO/DTIC recommendations on section 39B were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula, Ms Tafeni (noted).

The Chairperson indicated the vote on clause 36:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 36: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of clause 36: Western Cape.
Abstentions from voting on clause 36 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula, Ms Tafeni noted.
The vote was carried.

Clause 37 – no amendments
The Chairperson called for a vote on clause 37:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 37: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of clause 37: Western Cape.
Abstentions from voting on clause 37 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula, Ms Tafeni noted.
The vote was carried.

Clause 38 – no amendments
The Chairperson called for a vote on clause 38:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 38: Free State; Limpopo, North West, Northern Cape, Eastern Cape, and Gauteng.
Votes against the acceptance of clause 38: Western Cape.
Abstentions from voting on clause 38 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula, Ms Tafeni noted.
The vote was carried.

Clause 39 – no amendments
The Chairperson called for a vote on clause 39:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 39: Free State; Limpopo, North West, Northern Cape, Eastern Cape, and Gauteng.
Votes against the acceptance of clause 39: Western Cape.
Abstentions from voting on clause 39 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula, Ms Tafeni noted.
The vote was carried.

Clause 40 - Short Title and Commencement
Adv van der Merwe said that clause 40 dealt with the short title and commencement. The proposed changes would not affect the role of the presidency at all as they were only for the operation and effectiveness of the Act after the presidency had completed its processes. The Act would be called the Copyright Amendment Act. The date, 2017, would be corrected before gazetting The clause determined that the Act would come into operation 24 months from the date of publication in the Gazette, or on an earlier date fixed by the President by proclamation in the Gazette. To adhere to the Constitutional Court judgement in the BlindSA case, the definitions for 'accessible format copy', 'authorized entity' and 'person with a disability' contained in section 1 would come into operation upon the date of publication in the Gazette, as would section 19D.

Dr Masotja supported the recommendations. DTIC had noted the arrangements around clause 40.

Recommendations: The proposed amendments are recommended, especially to provide for the provisions dealing with the Blind SA judgment. See proposed amendments in blue:
40. (1) This Act is called the Copyright Amendment Act, 2017, and comes into operation [on a] 24 months from the date of publication in the Gazette, or an earlier date fixed by the President by proclamation in the Gazette.
(2)  The definitions for 'accessible format copy', 'authorized entity' and 'person with a disability' contained in section 1 come into operation upon the date of publication in the Gazette.
(3) Section 19D comes into operation upon the date of publication in the Gazette.”

The Chairperson called for a vote on section 40.
The Committee Secretary reported that the voting was as follows:
For the acceptance of CLSO/DTIC recommendations on section 40: Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on section 40: None
Abstentions from voting on CLSO/DTIC recommendations on section 40 were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula, Ms Tafeni (noted).

The Chairperson called for a vote on clause 40:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 40: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of clause 40: Western Cape.
Abstentions from voting on clause 40 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula, Ms Tafeni noted.
The vote was carried.

Schedule 2
Adv van der Merwe stated that a concern had been raised on whether Schedule 2 referred to the correct section. Section 22(3) did not in itself specifically deal with translation licenses, but it did deal with exclusive licenses, which included translation licenses. She confirmed that it was the correct section. No amendments were necessary.

Recommendations: No amendment recommended – section 22(3) was the correct reference

The Chairperson indicated the vote on no amendment to section 22(3) in Schedule 2:
The Committee Secretary reported that the voting was as follows:
For the acceptance of no amendment to section 22(3) in Schedule 2: Free State; Limpopo, North West, Northern Cape, Eastern Cape, and Gauteng.
Votes against the acceptance of no amendment to section 22(3) in Schedule 2: Western Cape.
Abstentions from voting on no amendment to section 22(3) in Schedule 2 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula, Ms Tafeni noted.
The vote was carried.

The Chairperson indicated the vote on Schedule 2 without amendments:
The Committee Secretary reported that the voting was as follows:
For the acceptance of Schedule 2 without amendments: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of Schedule 2 without amendments: Western Cape.
Abstentions from voting on Schedule 2 without amendments were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula, Ms Tafeni noted.
The vote was carried.

The Chairperson checked whether there was a Schedule 1.

Adv van der Merwe explained that there was no Schedule 1 in the Bill; there was a Schedule 1 in the Act.

The Chairperson asked how to address the additional matters raised by provinces in respect of the Bill.

Adv van der Merwe suggested that Adv Ally advise as the matters raised had all been addressed in the Bill but the wording was different or the matters were addressed in other ways.

Ms Ally stated that the Committee should be mindful of the fact that when considering provincial mandates, it was bound by the Bill that was in front of the Committee and if it wanted to introduce a new Amendment, it would need to apply to the House for special permission to do that. So, if the amendments were not contained in the Bill before it, the Committee should refrain from considering it.

The Chairperson supposed that voting on the Bill was complete.

Ms Ally concurred. By adopting clause by clause the Committee implied, by adopting the entire of proposed amendments, that the Bill in its entirety had been agreed to. The Committee could take it a step further by adopting the E-list once it had been compiled.

The Committee Secretary indicated that the cover page had to be adopted.

Cover Page
The Chairperson called for a vote on acceptance of the cover page:
The Committee Secretary reported that the voting was as follows:
For the acceptance of the cover page: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of the cover page: Western Cape.
Abstentions from voting on acceptance of the cover page were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula noted.
The vote was carried.

Performers’ Protection Amendment Bill
The Chairperson stated that all matters relating to the Copyright Amendment Bill had been concluded and asked Members to turn their attention to the Performers Protection Negotiating mandates.

Performers Protection Negotiating mandates

Clause 1 - definitions
Adv van der Merwe made general comments on the proposed amendments: that the definitions did not correspond with the international treaties. No specific concerns or specific definitions were mentioned. However, she could confirm that they did, in general, comply with the treaties.

Dr Masotja agreed that the definitions did align with the treaties.

Mr Brauteseth noted that the negotiating mandates from provinces were defective and unusual. It had been a recurring theme throughout the discussions that morning. Going forward, would it not be good for Adv van der Merwe and her team to engage with the provinces, not on the current Bill but on future Bills in terms of the kind of form and nature not content, so that the submissions that came back from the provinces were clear and unambiguous, and easy for the legal advisory team in Parliament to understand.  Perhaps a workshop or something like that.

Mr Dangor agreed that it made sense to hold such a workshop, in the light of the Committee’s experience, although he did not support the absent province.

The Chairperson concurred, adding that there was a need to improve the understanding of the procedure as well dealing with the legislation. The need applied not only to that Committee so that the Committee did not get bogged down on procedures when dealing with legislation. Perhaps it could be done towards the end of the year, or even for the seventh Parliament.

Mr Brauteseth corrected Mr Dangor. He was from the defective mandate province.

Clause 1 Definitions: “broadcast”
Adv van der Merwe said that, from the Free State, there was a proposal for the deletion of the word "wire". That was also a proposal in the National Assembly process and so CLSO and DTIC had consulted with public organisations that dealt with broadcasting and the indication was that wire could be used, even though it was not currently something subject to licensing. So, the proposal would not be recommended.

Dr Masotja explained that, in a way, the Committee had dealt with the matter in the CAB (Copyright Amendment Bill) when discussing broadcast and Gauteng recommended retaining the definition in the Act, because there were unintended consequences and some of the wording used in the current definition in the Bill was not clear, although the drafters were trying to align with the treaties. The decision then had been that the amendment could be removed and the one in the Act retained.

Recommendation: It was recommended that the amendment to the definition of “broadcast” be deleted and that the current definition as in the Act be retained. i.e., delete clause 1(b).

The Chairperson asked Members to vote on the deletion of clause 1(b).
The Committee Secretary reported that the voting was as follows:
For the acceptance of the deletion of clause 1(b): Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendations on the deletion of clause 1(b): Western Cape Mr Londt.
Abstentions from voting on CLSO/DTIC recommendations on the deletion of clause 1(b) were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula (noted).
The vote was carried.

Clause 1 Definitions: “communication to the public”
Adv van der Merwe said there was a proposal from Gauteng to amend the definition of communication to the public to bring it in line with the treaty. But the proposed method was not recommended because the definition in the Bill was aligned with the treaty.

Dr Masotja noted that the proposal from the province was not substantiated in terms of explaining the main issue with the definition in the Bill as opposed to the treaty. The DTIC recommended that the definition in the Bill be retained without any amendment.

The Chairperson called on Members to vote on the recommendation not to accept the proposed amendment to “communication to the public”. 
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation not to accept the proposed amendment:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation to accept the proposed amendment: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation not to accept the proposed amendment were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula (noted).
The vote was carried.

Clause 1 Definitions: "Copyright Management Information"; "sound recording"; "technological protection measure" and "technological protection measure circumvention device" referring to the Copyright Act
Adv van der Merwe said that the concern raised was that the definitions of "copyright Management Information"; "sound recording"; "technological protection measure" and "technological protection measure circumvention device" all referred to the Copyright Act. The proposal was that the same definitions should be included in the Performers Protection Act. Although that could be done, she would not recommend it because the two Acts were interlinked and there was a risk of one Act being amended but the other not. For example, an intellectual property law might amend the Copyright Act but, unwittingly, not the Performers Protection Act, it was possible that those two acts could have different definitions. That was the reason for the interlinking – if one were amended, so was the other.

Dr Masotja agreed with the comment.

Recommendation: The proposed amendment was not recommended. The Acts were interlinked

The Chairperson called on Members to vote on the recommendation not to accept the proposed amendment to add "Copyright Management Information"; "sound recording"; "technological protection measure" and "technological protection measure circumvention device. 
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation not to accept the proposed amendment:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation to accept the proposed amendment: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation not to accept the proposed amendment were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula (noted).
The vote was carried.

Clause 1 Definitions: "performer”                                                                                                                                                                                                                                                                                             
Adv van der Merwe said that the definition of performance was discussed during the Copyright Amendment Bill discussions and it was something that could be added without negatively affecting the definition. The other proposal was that the definition should be broadened but that was not recommended because the definition was aligned to international treaties and existing law. The proposal for amendment was to add the words "but does not include extras, ancillary participants or incidental participants".

Dr Masotja concurred with the comments by Advocate van der Merwe.

Recommendation: Recommend that the definition be amended as proposed – see the wording in bold: performer' means an actor, singer, musician, dancer or other person who acts, sings, delivers, declaims, plays in, or otherwise performs literary works, musical works, artistic works, dramatic works, [or works of joint authorship] or traditional works as contemplated in the Copyright Act, but does not include extras, ancillary participants or incidental participants''

The Chairperson called on Members to vote on the recommendation to amend the definition of performer:
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation to amend the definition of performer:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation to amend the definition of performer: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation to amend the definition of performer were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula (noted).
The vote was carried.

Clause 1 Definitions: Producer
Adv van der Merwe said that the proposal related to including a legal person as a producer. She explained that SA interpretation law included juristic as well as natural persons. Drafting was always in the singular so there was no need to add words like "any".

Dr Masotja was of the same view because the matter was legally defined.

The Chairperson called on Members to vote on the recommendation to amend the definition of producer:
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation to amend the definition of producer:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation to amend the definition of producer: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation to amend the definition of producer were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula (noted).
The vote was carried.

Clause 1 Definitions: reproduction
Adv van der Merwe noted two definitions discussed under "reproduction" in her document. She would talk about 'sound recording" later. Amending "reproduction" was a policy matter.
Dr Masotja said that the proposal was unclear, but even the wording to be included could have unintended consequences, so the amendment was not recommended.

Recommendation: The proposed amendment was not recommended – it might have unintended consequences and needed more research. It would also require additional public participation.

The Chairperson called on Members to vote on the recommendation not to amend the definition of reproduction.
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation not to amend the definition of reproduction:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation not to amend the definition of reproduction: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation not to amend the definition of reproduction were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula (noted).
The vote was carried.

Clause 1 Definitions: Sound recording
Adv van der Merwe said the Free State proposed substituting words in the definition that described soundtrack recordings associated with audio-visual fixation. North West proposed that it should be clearly stated that pre-existing sound recordings were not affected.

Dr Masotja said that the Department had ensured that there was alignment to the treaty and although the wording was not exact, DTIC had ensured that the treaty was taken into consideration. The proposal around the audio-visual appeared to be a substantive proposal being proposed as a definition and would also have unintended consequences.

Recommendation: The proposed amendments are not recommended – they might have unintended consequences and need more research as well as additional public participation.

The Chairperson called on Members to vote on the recommendation not to amend “sound recording”.
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation not to amend “sound recording”:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation not to amend “sound recording”: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation not to amend “sound recording” were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula (noted).
The vote was carried.

Adjournment for lunch.

Clause 1 Definitions: “technological protection measure” and “technological protection measure circumvention device”
Adv van der Merwe reminded Members that they had discussed the same definition when considering the Copyright Amendment Bill in respect of aligning it with the treaties, the three-step test and to make sure that sufficient protection was offered. Her response remained the same: the definitions had been very carefully crafted to ensure a balance between the rights of copyright owners and users.

Dr Masotja agreed. The issues had been discussed previously and DTIC also recommended no amendments.

Recommendation: No amendment to the wording of the Bill’s definitions is recommended: The definitions were fully compatible with the treaties and the three-step test. As they were worded, they provided a very careful balance between the rights of copyright owners and users.

The Chairperson called on Members to vote on the recommendation not to amend “technological protection measure” and “technological protection measure circumvention device”.
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation not to amend “technological protection measure” and “technological protection measure circumvention device”:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation not to amend “technological protection measure” and “technological protection measure circumvention device”
Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation not to amend “technological protection measure” and “technological protection measure circumvention device” were as follows: KwaZulu-Natal Mr Brauteseth.
The vote was carried.

The Committee Secretary attempted to contact Members who were not logged in.

Clause 1 definitions: “royalty”
Adv van der Merwe stated that there was no definition of royalty in the Performers Protection Act or the Amendment Bill and no reference to the term. There was a definition for royalty in the Copyright Amendment Bill. She did not recommend that a definition be added.

Dr Masotja concurred.

Recommendation: The proposed amendment to a definition was not recommended – the word was not defined in the Act or Bill.

The Chairperson called on Members to vote on the recommendation not to add a definition for “royalty”.
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation not to add a definition for “royalty”:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation not to add a definition for “royalty”: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation not to add a definition for “royalty” were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

Clause 1
The Chairperson called Members to vote on clause 1:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 1: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of clause 1: Western Cape.
Abstentions from voting on clause 1 were as follows: Mpumalanga, KwaZulu-Natal.
The vote was carried.

Clause 2 section 3
Adv van der Merwe said that the proposals related to three aspects. Firstly, it was related to the wording in a treaty but she could not find that wording in any of the relevant treaties. The other proposal related to the use of equitable remuneration and whether that would be sufficient and also to the role between equitable remuneration and exclusive rights and whether rights were being taken away or not given. Those were policy issues.

Dr Masotja agreed that the reference to the treaty was not clear and she could not find that provision. Besides the issue of the right seems to refer to producers rather than to performance. On the issue of equitable remuneration, there has been close alignment to the treaties to allow for equitable remuneration, so while it was an important aspect, she believed that it had been addressed in the Bill.

Recommendation: The proposed amendment was not recommended – the treaty wording need not be incorporated word for word. The wording might be in the Rome treaty, which did not apply to performers.
Additional rights envisaged would require research, consultations and an impact assessment. It would also require public participation.

The Chairperson called on Members to vote on the recommendation not to amend clause 2 section 3.
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation not to amend clause 2 section 3:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation not to amend clause 2 section 3: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation not to add a definition for “royalty” were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula noted.
The vote was carried.

The Chairperson called on Members to vote on clause 2:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 2: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of clause 2: Western Cape.
Abstentions from voting on clause 2 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula noted.
The vote was carried.

Clause 3 – Section 3A (Transfer of rights)
Adv van der Merwe addressed section 3A where the main concern was in respect of empowering the Minister to prescribe certain standards for contracts. There was a proposal for amendments to make it clear what the contract must deal with rather than have it prescribed by the Minister. The proposal was to make it very clear what the Minister could and could not prescribe but the Committee could approve one of two options. There was also a concern about a reversion right and whether that should be included. If the concern was that rights would be affected retrospectively, she could confirm that it would apply only to matters going forward.

Dr Masotja assured the Committee that the provisions were similar to the ones in the Copyright Amendment Bill in the terms of a contract. It was about the protection of performers, ensuring that those who were contracting were aware of the minimum rights that affected them. The reversion right was the same as in the Copyright Amendment Bill in that it talked to the musical works in the hands of the sound recordings. As in the CAB, the DTIC recommended that it be retained in the Bill.

Recommendation: The proposals to remove the power of the Minister to prescribe in relation to the terms of a contract are not recommended. The purpose is to ensure protection for vulnerable parties who do not have a strong negotiating base when entering into agreements.  However, the following amendments are proposed to ensure that the Bill is clear on the nature of what the Minister may include in regulations (an option is provided iro wording)

Clause 3 – Section 3A
“(3)       The written agreement contemplated in subsection (2)—
(a)        must at least contain the [compulsory and] standard contractual terms reflecting rights as set out in this Act and the Copyright Act, as may be prescribed;”
or
“(3)       The written agreement contemplated in subsection (2)—
(a) must at least contain the [compulsory and] standard [contractual terms] elements, as may be prescribed, to ensure that rights or protection afforded by this Act and the Copyright Act are duly provided for;”

The Chairperson reminded Members that they had to choose between the two. He confirmed that the amendment was similar to that in the Copyright Amendment Bill.

Adv van der Merwe stated that the wording might be slightly different because it was in a different section, but the intent remained the same: both referred to limiting it to rights: from the two Acts. The first option focused on terms and the second option simply referred to elements. The second one was chosen in the Copyright Amendment Bill and because the two Acts worked together, she recommended that option.

The Chairperson called on Members to vote on the recommendation to amend section 3a, option 2.
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation to amend section 3a, option 2:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation to amend section 3a, option 2: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation to amend section 3a, option 2 were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff; Ms Mathevula noted.
The vote was carried.

Clause 3 – Section 3B (Protection of rights of producers of sound recordings)
Adv van der Merwe said that in respect of section three B, there was not an amendment proposed to the Performance Protection Amendment Bill. The matter was dealt with under the Copyright Amendment Bill, where the proposal was for section 8A in the Copyright Amendment Bill to be deleted, but it was mentioned in the Performance Protection Mandates. That was why it was included.  She did not think that it was necessary to vote on it. She had thought it prudent to bring it to the Chairperson’s that attention that it was included in the Performance Protection Amendment Mandates.

The Chairperson called on Members to vote on clause 3, with amendment:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 3, with amendment: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of clause 3, with amendment: Western Cape.
Abstentions from voting on clause 3, with amendment were as follows: Mpumalanga, KwaZulu-Natal.
The vote was carried.

Clause 4 Section 5
Adv van der Merwe said that section five changed the word “fixation” to the new definition of “audio-visual fixation” and added “equitable remuneration” using the correct wording to refer to the Copyright Act. The proposals in the mandates were either more applicable to the Copyright Amendment Bill or to matters that had already been addressed, but not in section 5. There were no relevant amendments proposed by the provinces.

Dr Masotja said that the issues raised related mostly to the audio-visual works and the reporting. That had been addressed. The principle was same similar to that indicated previously, in terms of ensuring that there was fair remuneration to the performer. Certain digital rights had been added to ensure alignment with international treaties. It was an area that might require education and awareness. Adding digital rights did not translate into remuneration rights. Most of the issues that were being raised had been attended to.

The Chairperson called on Members to vote on the recommendation not to amend clause 4 section 5.
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation not to amend clause 4 section 5:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation not to amend clause 4 section 5: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation not to amend clause 4 section 5 were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

The Chairperson called on Members to vote on clause 4, without amendment:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 4, without amendment: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of clause 4, without amendment: Western Cape.
Abstentions from voting on clause 4, without amendment were as follows: Mpumalanga, KwaZulu-Natal.
The vote was carried.

Clause 5 – no proposals or amendments
The Chairperson called on Members to vote on clause 5:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 5: Free State; Limpopo, North West, Northern Cape, Eastern Cape, and Gauteng.
Votes against the acceptance of clause 5: Western Cape.
Abstentions from voting on clause 5 were as follows: Mpumalanga, KwaZulu-Natal.
The vote was carried.

Clause 6 section 8D Regulations
Adv van der Merwe stated that 8D related to the Minister's empowering provision in respect of prescribing for contractual terms. It was very important for the vulnerable parties to be protected when signing contracts. She proposed an amendment to make it clear that the rights that might be prescribed were those that were in the Performance Protection Act and the Copyright Act. She had presented two options but for consistency with previous amendments, she recommended option 2.

Dr Masotja concurred with Adv van der Merwe. The matters and the issues around contracts had been extensively discussed on the platform.

Recommendation:
-The proposals to remove the power of the Minister to prescribe in relation to terms of a contract are not recommended. The purpose is to ensure protection for vulnerable parties who do not have a strong negotiating base when entering into agreements.
-However, the following amendments are proposed to ensure that the Bill is clear on the nature of what the Minister may include in regulations (an option is provided iro wording):

Clause 6: Section 8D
“(3)       The Minister must make regulations prescribing [compulsory and] standard contractual terms reflecting rights as set out in this Act and the Copyright Act, [to] that must be included in agreements to be entered in terms of this Act, which contractual terms must include—"
Or
“(3)       The Minister must make regulations prescribing [compulsory and] standard [contractual terms] elements [to] that must be included in agreements to be entered into in terms of this Act, to ensure that rights or protection afforded by this Act and the Copyright Act are duly provided for, which contractual terms must include—;”

The Chairperson called on Members to vote on the recommendation to amend section 8D, option 2.
The Committee Secretary reported that the voting was as follows:
For the acceptance of the recommendation to amend section 8D, option 2:  Free State Ms Moshodi; Limpopo Ms Mamaregane; North West Mr Landsman; Gauteng Mr Dangor; Northern Cape Mr Mmoiemang and Eastern Cape Mr Rayi.
Votes against the CLSO/DTIC recommendation to amend section 8D, option 2: Western Cape Mr Londt.
Abstentions from voting on the CLSO/DTIC recommendation to amend section 8D, option 2 were as follows: KwaZulu-Natal Mr Brauteseth; Mpumalanga Ms Boshoff.
The vote was carried.

Clause 6 with amendments
The Chairperson called on Members to vote on clause 6:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 6 with amendments: Free State; Limpopo, North West, Northern Cape, Eastern Cape, and Gauteng.
Votes against the acceptance of clause 6 with amendments: Western Cape.
Abstentions from voting on clause 6 with amendments were as follows: Mpumalanga, KwaZulu-Natal.
The vote was carried.

Adv van der Merwe stated that she had presented all proposals for amendment to the Performers Protection Bill. The additional proposed amendments in the provincial mandates are related to CAB. They did not relate to the Bill under discussion at all. There were two additional matters. She reminded the Committee that a decision had been taken during the discussion on the CAB not to accept new amendments.

Mr Dangor proposed that the Committee agree with the legal advice on that matter.

The Chairperson called for votes on the remaining clauses.

Clause 7 – no proposals or amendments
The Chairperson called on Members to vote on clause 7:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 7: Free State; Limpopo, North West, Northern Cape, Eastern Cape, and Gauteng.
Votes against the acceptance of clause 7: Western Cape.
Abstentions from voting on clause 7 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula noted.
The vote was carried.

Clause 8 – no proposals or amendments
The Chairperson called on Members to vote on clause 8:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 8: Free State; Limpopo, North West, Northern Cape, Eastern Cape, and Gauteng.
Votes against the acceptance of clause 8: Western Cape.
Abstentions from voting on clause 8 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula noted.
The vote was carried.

Clause 9 – no proposals or amendments
The Chairperson called on Members to vote on clause 9:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 9: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of clause 9: Western Cape.
Abstentions from voting on clause 9 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula noted.
The vote was carried.

Clause 10 – no proposals or amendments
The Chairperson called on Members to vote on clause 10:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 10: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of clause 10: Western Cape.
Abstentions from voting on clause 10 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula noted.
The vote was carried.

Clause 11 – no proposals or amendments
The Chairperson called on Members to vote on clause 11:
The Committee Secretary reported that the voting was as follows:
For the acceptance of clause 11: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of clause 11: Western Cape.
Abstentions from voting on clause 11 were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula noted.
The vote was carried.

Cover page
The Chairperson called on Members to vote on the cover page:
The Committee Secretary reported that the voting was as follows:
For the acceptance of the cover page: Free State; Limpopo, North West, Northern Cape, Eastern Cape and Gauteng.
Votes against the acceptance of the cover page: Western Cape.
Abstentions from voting on the cover page were as follows: Mpumalanga, KwaZulu-Natal; Ms Mathevula noted.
The vote was carried.

Committee Minutes
The Chairperson noted that the matter of the two Bills had been concluded and the minutes of the previous meetings had been distributed. Members had asked for time to consider the minutes. Had they been able to do so?

Mr Dangor suggested that the minutes be flighted page by page and then Members could agree or disagree per page.

Mr Londt stated that he had been busy and had not had an opportunity to go through them. Members had to take into consideration the feedback given that there were some errors made in the voting previously. Nothing prevented Members from addressing the minutes at the next meeting. He proposed that Members consider the minutes and deal with them at a future date.

Mr Brauteseth stated that, given the importance of voting correctly, he supported the proposal.

Mr Mmoiemang agreed that Members should have an opportunity to go through the minutes and then address them at the next meeting.

Ms Moshodi supported Mr Mmoiemang’s view.

Ms Boshoff supported Mr Londt’s proposal.

The Chairperson accepted the proposal. He remembered there was an earlier proposal for a meeting on Friday. Was any other date feasible as the date had been set aside for visa applications? The minutes had to be dealt with before the Committee considered the E-list on 25 July 2023.
Mr Dangor noted that the visa application process was on Friday. The Chairperson should also bear. the legislative programme in mind and that they would be away during the recess.

The Chairperson suggested three possible dates after the study tour be circulated on the WhatsApp group. He noted that Members agreed to find a later date for the adoption of minutes.

The Committee Secretary said that the next approved meeting was a virtual meeting on 25 July 2023.

The Chairperson stated that Members could take the opportunity to adopt minutes related to meetings on the legislative process. Minutes of meetings held with Departments on the Annual Performance Plans also had to be adopted.

Closing Remarks
Mr Dangor thanked the staff who had been very vigilant and had been working very hard on the matter.

Dr Masotja thanked the Chairperson and Members on behalf of the ministry and the DTIC for the opportunity to be part of the process.

The Chairperson thanked the Committee for attending the meeting. It was a learning curve. He thanked the Committee staff for all the assistance they had given Members and everyone else involved in the process. The process was not yet concluded.

The meeting was adjourned.