ATC240215: Report of the Portfolio Committee on Trade, Industry and Competition on the President’s reservations on the Performers’ Protection Amendment Bill, dated 14 February 2024
Trade, Industry and Competition
Report of the Portfolio Committee on Trade, Industry and Competition on the President’s reservations on the Performers’ Protection Amendment Bill, dated 14 February 2024
The Portfolio Committee on Trade, Industry and Competition, having reconsidered the Performers’ Protection Amendment Bill [B24F-2016] (retagged as a sec 76 Bill) (Announcements, Tablings and Committee Reports, 18 June 2021), as amended by the National Council of Provinces and returned to the National Assembly for concurrence (Announcements, Tablings and Committee Reports, 28 September 2023), reports as follows:
The Bill seeks to amend the Performers’ Protection Act, 1967 (Act No. 11 of 1967) so as to insert, delete or substitute certain definitions; to provide for performers’ economic rights; to extend moral rights to performers in audiovisual fixations; to provide for the transfer of rights where a performer consents to fixation of a performance; to provide for the protection of rights of producers of sound recordings; to broaden the restrictions on the use of performances; to extend the application of restrictions on the use of performances to audiovisual fixations; to provide for royalties or equitable remuneration to be payable when a performance is sold or rented out; to provide for recordal and reporting of certain acts and to provide for an offence in relation thereto; to extend exceptions from prohibitions to audiovisual fixation and sound recordings and include exceptions provided for in the Copyright Act, 1978 (Act No. 98 of 1978); to provide for the Minister to prescribe standard elements to be included in agreements as well as guidelines for a performer to grant consent under this Act; to provide for prohibited conduct and exceptions in respect of technological protection measures and copyright management information respectively; to provide for further offences and penalties; to substitute certain expressions; to provide for transitional provisions; and to provide for matters connected therewith.
The report provides a background on the Committee’s initial process in 2021 and 2022 in section A. It then outlines the process followed in considering the Bill as amended by the National Council of Provinces in section B. Section C provides the expressed minority views and section D captures the Committee’s recommendation to the National Assembly.
A. Overview of process followed by the Committee on the Performers’ Protection Amendment Bill upon referral of the President’s concerns
On 1 June 2021, the National Assembly adopted the Committee’s report in which the Committee outlined how it intended to correct any procedural defect (Minutes of Proceedings, National Assembly, 1 June 2021).
On 4 June 2021, the Committee placed adverts in national and regional newspapers inviting stakeholders and interested parties to submit written submissions with reference to the alignment of the Performers’ Protection Amendment Bill [B24B-2016] with the obligations set out in international treaties. The Committee received 91 submissions in this regard. The Committee carefully considered a number of complex legal and policy matters raised by the public, given the international reach, and the impact on domestic constituencies, as well as to ensure that the process going forward was constitutionally sound.
Furthermore, in preparation for the public hearings, the Committee held a workshop on 3 and 4 August 2021 to provide the new members of the Committee with a conceptual framework of copyright and related rights, including performers’ rights in respect of sound recordings and audiovisual works.
As certain clauses of the Performers’ Protection Amendment Bill [B24B-2016] are subject to the promulgation of the Copyright Amendment Bill [B13B-2017], the Committee agreed that it would consider both Bills simultaneously. Thus, the consideration of the Performers’ Protection Amendment Bill [B24B-2016] was subject to the conclusion of the process with respect to the Copyright Amendment Bill [B13B-2017].
On 8 June 2022, the Committee formally considered the amendments to the Performers’ Protection Amendment Bill [B24B-2016], as a result of the President’s reservations. However, there had been no consensus reached on a number of clauses.
On 10 June 2022, the Committee adopted its report and recommended that the National Assembly approves the second reading of the Performers’ Protection Amendment Bill [B24C-2016].
B. Process followed by the Committee with respect to amendments affected by the National Council of Provinces
On 26 September 2023, the National Council of Provinces passed the Performers’ Protection Amendment Bill [B24F-2016] and returned it to the National Assembly for concurrence. The Bill was subsequently referred to the Portfolio Committee on Trade, Industry and Competition for consideration and report.
On 6 February 2024, the Committee received a briefing from the Department of Trade, Industry and Competition and Parliament’s Constitutional and Legal Services Office respectively. The National Council of Provinces amendments relate to the following clauses:
- Long title: Adding the following phrase to the long title: “…To provide for the Minister to prescribe standard elements to be included in agreements …”;
- Clause 1 – Section 1: (i) Deleting the definition of “broadcast”; and (ii) Adding the phrase “, but does not include extras, ancillary participants or incidental participants” to the definition of “performer”;
- Clause 3 – Section 3A: (i) Amending subsection (3) of the new section 3A:
“(3) The written agreement contemplated in subsection (2)—
(a) must at least contain the standard elements, as may be prescribed, to ensure that rights or protection afforded by this Act and the Copyright Act are duly provided for;”; and
- Clause 6 – Section 8D: By the substitution for the introductory sentence in subsection (3) in the new section 8D, of the following subsection:
‘‘(3) The Minister must make regulations prescribing standard elements 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—“.
C. Minority views were expressed on the following aspects contained in this report:
The Democratic Alliance expressed a view that it would not be supporting the Bill, as its concerns in relation to the Bill had not been adequately addressed. Its concerns related to the ambiguity with respect to certain provisions, the lack of participation of stakeholders, and the restriction on economic rights and competitiveness for artists and performers.
The Freedom Front Plus was of the view that the regulatory power given to the Minister in terms of sections 3A(3) and 8D(3) to determine standard elements for agreements to be entered into, that would ensure the rights of protection as provided in the Bill, would be unprecedented. They were of the view that further public comments should have been elicited on this amendment.
They were further of the view that the exclusion from the definition of “performers” of extras, ancillary participants and incidental participants, would deprive certain performers of existing rights to equitable remuneration or a share in royalties emanating from audiovisual works.
The African Christian Democratic Party expressed a view not in support of the Bill due to challenges relating to inadequate consultation, as well as the introduction of and lack of comprehensive market research on the impact of the fair use provisions.
D. Recommendation
The Portfolio Committee on Trade, Industry and Competition recommends that the House adopts this report and approves the Performers’ Protection Amendment Bill [B24F-2016] for resubmission to the President.
The Democratic Alliance, the Freedom Front Plus and the African Democratic Christian Party voted against the adoption of the Bill.
Report to be considered.