Copyright & Performers’ Protection Amendment Bills: proposed amendments

Meeting report

Opening remarks
The Chairperson welcomed Members and indicated that the only item for the day was the deliberations on the Remitted Bills which would be led by Adv Charmaine van der Merwe, Senior Legal Advisor, Office of the Constitutional and Legal Services.

Presentation of Proposed Amendments to the Copyright and the Performers’ Protection Amendment Bills
Adv van der Merwe informed the Members that a team from Parliament and a team from the dtic had met to work out the wording for the proposed Amendments to the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB). In her briefing, the amendments were arranged per topic, e.g. disability, broadcasting, etc.

Ms J Hermans (ANC) suggested that Adv van der Merwe should pause after each topic for the Committee to consider the proposed wording.

[Please refer to the attached document: Proposed amendments]
                                                                                                                                                                                                                        
Topic 1: Persons with a disability
Clause 1 – Copyright
The definition of “accessible format copy” would describe the conversion of a work into a format that was accessible to a person with a disability. The reason for the change was in order to align the wording more closely with the treaty. The Bill currently used the wording “and permit” – that would be changed to “including to permit” which broadened the definition.

There was also a proposal for a new definition of an “authorized entity”, which  referred to an entity that would be allowed to make the accessible format copies. The proposed wording was:

“‘authorized entity’ means—
(a) an entity that is authorized or recognised by the government to provide education, instructional training, adaptive reading or information access to persons with a disability on a non-profit basis; or
(b) a government institution or non-profit organization that provides education, instructional training, adaptive reading or information access to persons with a disability as one of its primary activities or institutional                                                                                                                                                                    obligations.”

Adv van der Merwe noted that one of the questions that would arise would be: What did it mean to be authorised by the government? That question would be addressed in another amendment which required the Minister to make regulations.

She then discussed how the definition of ‘authorized entity’ played out in section 19D which dealt with disability exceptions. Firstly, it meant that it was not necessary to refer to a person “as may be prescribed” because section 19D will refer to “Any person that serves persons with disabilities, including an authorised entity”. Section 19D did not have to be advertised because it was merely using appropriate terminology to state exactly what was meant.

Section 19D(1) had two conditions attached to it. The second condition was that in making an accessible format copy, one could not make changes to the original work, other than those essential for making it accessible. There was a concern that the condition was not clearly explained, so she recommended that the wording be changed by using the wording from the treaty:
(b)        in converting the copyright work to an accessible format copy, the integrity of the original work must be respected, taking due consideration of the changes needed to make the work accessible in that alternative format and of the accessibility needs of the persons with disability;”
The meaning would not change and so there was no need to advertise the change.

Adv van der Merwe suggested that section 19D(2) be totally re-drafted because it referred to “personal use” but did not say whose “personal use” was indicated. The intention was that it was only for the personal use of a person with a disability. An authorised entity could make a copy, but only for a person with a disability.

Section 19D(3)(a) – it was necessary to bring in the concept of authorised entity and, in line with the treaty, it was necessary to say a it could only be used “ for distribution or to make it available to persons with a disability”.

An additional paragraph, 19D(3)(b) determined that the onus was on the importer or exporter to be reasonably sure that the work would only be used for that purpose.
“A person contemplated in paragraph (a) may only so export or import where such person knows, or has reasonable grounds to believe that the accessible format copy, will only be used to aid persons with a disability.”  The paragraph would have to be advertised.

Section 19D(4)(a) addressed the moral rights of the author whose name had to be indicated on the accessible format copy “if it appears on the work”.

 A new paragraph, 19D(4)(b), reiterated that the exception applied only in instances where the accessible format copy was for use “exclusively by a person with a disability.”

Clause 33 –section 39 
There was a need to insert a new subsection (2) which required the Minister to make regulations providing for authorised entities. It was not just about allowing the regulations; the Minister was obliged to draft regulations or there would be no authorised entities. The old 39(2) became 39(3).

Adv van der Merwe paused at that point, explaining that those were all the amendments relating to persons with a disability.

Discussion
Mr S Mbuyane (ANC) agreed that the accessible format had to be addressed. He asked about the new subsection that gave more powers to the Minister to regulate. Was the Committee not going back to the original problem of giving the Minister too much power as in the original Copyright Amendment Bill?

Mr Z Burns-Ncamashe (ANC) understood that certain matters had to be advertised. He asked what was meant by the need for advertising. As Ms Hermans had said, not everyone was familiar with the law-making processes and some of the nomenclature or jargon used by Adv van der Merwe on a daily basis might be leaving other people behind. A pedagogical principle stated that one moved from the known to the unknown, from the simple to the complex and from the physical to the concrete. That was the logic of movement.

The Chairperson agreed with Mr Burns-Ncamashe that part of the process was to understand matters clearly and he would get Adv van der Merwe to make matters much simpler so that everyone could understand. He informed her that Members were picking up the work very slowly and she needed to simplify. He asked for Adv van der Merwe’s patience.

Adv van der Merwe agreed that she was extremely familiar with the process. She explained that the process was a section 79 process which meant that it was not quite the same as drafting a Bill and even the support staff regularly checked with one another to ensure that they were adhering to the requirements of section 79. She explained that the Committee was very limited in what it could look at, i.e. the concerns raised by the Presidency. Where procedural concerns had been expressed by the Presidency, the Bill opened up a little and lines became a little blurred, unlike where the Presidency had addressed substantive matters.

The Committee had to consider its constitutional obligations in respect of section 59 of the Constitution which placed an obligation on the Committee to engage with public opinion. There had been lots of court cases that had considered what it meant for Parliament to engage with the public. The Copyright Amendment Bill had been advertised many times and the public had commented on just about everything. So when could Parliament stop asking for input? The courts indicated that if there was a material amendment where something had not been seen by the public before, the public had to be engaged. She quoted the case of a group of veterinarians and the Medicine and Related Substances Act. [The Veterinary Association was successful in having the word ‘veterinarian’ severed from an amendment to the Medicine and Related Substances Act because of lack of consultation regarding a material amendment that would have adversely affected the entire profession].

Adv van der Merwe recommended further advertisement in order to comply with section 59 of the Constitution. Even if the public had already commented on one aspect, if a point had changed, the point had to be re-advertised.

Regarding the regulations to be made by the Minister, Adv van der Merwe said that it was necessary for the Minister to make regulations concerning authorised entities or such entities would not officially exist. It did not go beyond the powers of a Minister.

Topic 2: Broadcast
The definition of “broadcast” was being amended in the PPAB and the public had submitted that there could not be two different definitions. That meant that the definition in the Copyright Act had to be amended by making an amendment in the Copyright Amendment Bill. That was fairly simple.

The problem was that the public submissions had requested that the word ”wire’ be deleted because it was not in the treaty. It was important to hear from the public whether “wire” should remain or not. People who currently broadcast by wire would not be prevented from broadcasting but they would fall under a different Act and it was a question of whether that was material to such broadcasters or not.

Discussion
Mr Burns-Ncamashe noted that there were two different definitions of broadcast. He wanted to check a legal principle. Was Adv van der Merwe saying that an Act could not be amended through an insertion in another Act relevant to the subject? Or when amending an Act, did one have to amend the principal Act?

Adv van der Merwe responded that one could amend one Act when amending another Act via a Schedule. She added that if only the Performers Protection Act were being amended, the Copyright Act could be amended via a Schedule. But the CAB and the PPAB were administered by the same Department and the two had been a single Act initially, so the proposal was to amend both and to present them before the same Committee because that would ensure alignment between the Acts. The proposal to amend the Copyright Act through the CAB was simply because the Committee was currently busy amending the Copyright Act and that would ensure alignment between both Acts.

Topic 3: Personal copies.
Adv van der Merwe stated that a definition was required for “lawfully acquired”. The CAB was dealing with a very specific exception relating to a personal copy. If the copy had been stolen or borrowed or temporarily loaned to someone, the work could not be copied. The definition would state that one had to have purchased or been gifted the work itself. The challenge was to determine whether there would be any unintended consequences t such a requirement.

She proposed that “lawfully acquired” be included in 12B(1)(i):
“the making of a personal copy of such work by a natural person for their personal use, including the use of a lawful copy of the work at a different time or with a different device  owned by that natural person , and made for ends which are not commercial: Provided that the work was lawfully acquired and that such personal use shall be compatible with fair practice.”

 However, the drafters had to ensure that the”lawfully acquired” did not apply to libraries, etc. and so it had to be stated that no other exceptions applied when referring to personal copies. That was addressed by adding a new 12B(3)(b): “The factors associated with making a personal copy, set out in subsection (1)(i), do not apply to a copy made in terms of another exception provided for in this Act.”

Most countries allowed courts to look at the specific circumstances of a particular case and Adv van der Merwe was concerned that the proposal for an amendment to the Act was too restrictive. She recommended advertising the proposed new definition of “lawfully acquired” and when inputs is received from the public, the Committee could at that point decide not to define “lawfully acquired” and could let the courts decide when a copy had been lawfully acquired. However, the public might believe that the drafters had got the balance correct and then it could be used.

There were no questions and discussion.

Topic 4: Technological Protection Measures (TPMs)

Adv van der Merwe explained that a TPM was, loosely defined, software, a process, a treatment, a device or other technology used to block or limit access to a work. For example, when one cannot play a CD on a computer, it might well be that the CD was protected by a TPM.  

The original definition of TPM in the CAB had included a part (b) that stated what a TPM was not. The argument was the definition had been circuitous and could have stated that a TPM was not something that it was and therefore could have had unintended consequences. Her proposal was to add “product” and indicate that the TPM was “designed” for the purpose of restricting access to a work.

Originally Adv van der Merwe had not recommended the advertising of the definition of TPM but, to ensure that there were no unintended consequences, she recommended the advertisement of the proposed change so that members of the public could also look for unintended consequences in adding “product” and “designed”.  The original paragraph (b) was deleted.

The second definition was that of a TPM device. But the public had explained that TPMs were not limited to devices; a TPM could also be a service.  “or service” had been added and “service” should be included wherever there was a reference to a TPM device. Paragraphs (b) and (c) had been added to the definition of  TPM device or service:
“(b) promoted, advertised or marketed for the purpose of circumvention of a technological protection measure; or
(c) with a limited commercially significant purpose or use other than to circumvent a technological protection measure”.  The public would not have seen the amended definition and so it had to be advertised.

In addition to the definition of TPM being inadequate, the Bill had not contained a sanction for contravening the legislation in respect of TPM. However, if one made TPM an offence but it was described as a device or service that a person “has reason to believe”, how did one prove that? Or if one was charged with such an offence, how did one prove that the other person did not “have reason to believe”?  Adv van der Merwe recommended a change to a common legal term, i.e. “should reasonably have known” which was a more objective test and did not have to be advertised because it was an accepted way of determining an offence. The reference in law was to whether a normal, reasonable person should have known.

Adv van der Merwe explained that there would be consequential amendments as whenever a reference was made to TPM device, the words “or service” would be added.

Sections 280 and 28P required a technical change as the Electronic Communications and Transactions Act, 2002 was being replaced with the Cybercrimes Act. Section 28P “prescribed under the Act clarified the Minister’s right to make regulations in regard to TPM devices or services.  28S contained a consequential amendment: “or could reasonably not have known”.

Adv van der Merwe stated that she would go into the detail of sanctions later during her presentation. The critical point for Members to consider was the definition.

The Chairperson noted that the detailed wording could be very significant and it was important that there was complete clarity about what was meant in the legislation. Members were concerned at the moment about obtaining a full understanding of the details.

There were no questions and discussion.

Topic 5: Extending digital rights to published editions and computer programmes.
Adv van der Merwe stated that public input had queried why the rights extended to all other forms of original work in the Bill had not been extended to published editions and computer programmes. She had herself queried why no rights were extended to broadcasts but experts had informed her that broadcast rights were currently being negotiated internationally and therefore not included in the Bill at that point.

Section 11A – extending digital rights to published editions.
Section 11B – extending digital rights to computer programmes.

Sections 11A and B had to be advertised because they were new rights.

There were no questions and discussion.

Topic 6: Offences for TPMS and Digital Rights

Section 27(a) referred to instances of an offence against the Copyright Act.

A new 27(5A) indicating when digital rights were infringed was inserted into the Bill:

(5A) in respect of digital rights
(5A)      Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright and for commercial purposes—
 (eA)     communicates the work to the public by wire or wireless means; and
(eB)      makes the work available to the public by wire or wireless means, so that any member of the public may access the work from a place and at a time chosen by that person,
which he or she knows to be infringing copyright in the work, shall be guilty of an offence.

The existing (5A) became (5B). Various consequential amendments were made to (5B). Because fines were included elsewhere in the Bill, it was not necessary to repeat in section 27.

In order to clarify exactly what constituted an offence (5C) was added to section 27:
(5C)      Subject to section 28S , any person who—
(a)        in respect of any copy of a work, remove or modify any copyright management information; or
(b)        make, import, sell, let for hire, offer or expose for sale, advertise for sale or hire or communicate to the public a work or a copy of a work, if the copyright management information in respect of that work or copy of that work, has been removed or modified without the authority of the copyright owner,
shall be guilty of an offence.

Discussion                                                                                                                                                                                  
Ms Y Yako (EFF) asked about the gendering of the clauses. She noted that in section 27 (5A)(eB), the paragraph read: “…  which he or she knows to be infringing copyright in the work ….”. Use was made of the pronouns “he” and “she” but in other paragraphs the gender neutral plural pronoun” they” was used. Was there a reason for that change?

Adv van der Merwe stated that the rest of the Act itself was gender sensitive in that “he” and “she” was used, but agreed that was not gender neutral. There were two schools of thought about writing legislation: in some cases gender neutral language was preferred but in others, gender sensitivity was preferred. If the Committee required, she could, through amendments to the Bill, change the entire Act into gender neutral language.

Ms Yako asked for gender neural terminology as it was 2021 and that would not offend anyone while being in line with the work being done in Parliament.

Ms Hermans stated that gender-neutral drafting of legislation was essential. The ANC would support Ms Yako in requesting gender neutral language.

Adv van der Merwe agreed to work through the Bills and change all language to gender neutral language.

Topic 7: Making the fair use factors applicable to other exceptions.
The public was concerned about the hybrid system and it was not clear that the fair use system was applicable to the new exceptions included in the Bill. 12A(d) was a new paragraph that explained that the fair use test applied to the exceptions:
 “(d)      The exceptions authorized by this Act in sections 12B, 12C, 12D, 19B and 19C , in respect of a work or the performance of that work are subject to the principle of fair use, determined by the factors contemplated in paragraph (b).”

Adv van der Merwe pointed out that section 19D was not included in the exceptions that were subject to fair use because it was the disability clause and that was governed, not by fair use principles, but by the relevant treaty.

Even though 12A(d) was merely making explicit what the Bill had implied, she advised that 12A(d) be advertised simply because it contained completely new wording.

Discussion
The Chairperson stated that the proposal was good.

Topic 8: Ephemeral Rights
Adv van der Merwe explained that Ephemeral Rights had to do with broadcasting. Everything to do with Ephemeral Rights would have to be advertised. The recommendation from the public was that the wording of the Canadian Act be used in the Bill. She explained that obviously some adjustments had been made to make the Canadian wording fit into the Bill.

Section 12B(1)(c) contained all details of how a broadcaster had to deal with ephemeral rights. Adv van der Merwe read the subsection. She noted that, despite the rights in section 12B(1)(c), a new subsection (2) indicated when those details did not apply:
 
“(2) Subsection (1)(b) does not apply where a licence is available from a collective society to make the fixation or reproduction of the performer’s performance, work or sound recording.”

Everything on ephemeral rights would have to be advertised for public comment.

Discussion
The Chairperson noted that the legislation was intended to guide. It was better than making legislation when everything had already gone wrong.

Topic 9: Adding the Wording of the Three Step Test
Before discussing the Three Step Test, Adv van der Merwe pointed to a technical amendment that had to be made in 12C so that the rider “ as long as there is no commercial significance to these acts” applied to both 12C(a) and (b), noting that the original description of economic significance had been changed to commercial significance in line with the revised thinking. That was a technical amendment and that did not have to be advertised.

The intention was to add the Three Step Test to sections 12C(2) and 12D(1), using the international treaty wording but adapted, where necessary, to South Africa law.

In addition to the wording related to the Three Step test, the words, “(may) not unreasonably prejudice the legitimate interests of the copyright owner flowing from their copyright in that work” were added. The intention was to make allowance for a copyright owner who might have a different interest flowing from a copyright, other than commercial.

12D(1) also included a consequential amendment as a result of the deletion of repetition: “including the use of a lawful copy of the work at a different time or with a different device owned by that person”.

Section 12D also contained consequential amendments stemming from the decision to cluster all educational references in section 12D.

Adv van der Merwe informed Members that the Three Step Test was intended to be enabling, not limiting, and there was a school of thought that said that when a country included the wording of the Three Step Test in its legislation, it became limiting. Including the wording was not wrong, but was considered limiting. The wording of the Three Step Test had to be advertised and the Committee could be guided by the public comments and submissions. She would remind the Committee of the issue when the Members considered the public input.

Discussion
There were no questions or comments and the Chairperson reminded Adv van der Merwe to explain aspects of the Bill as simply as she could to facilitate a good understanding of the matters by Members of the Committee, some of whom had no experience of law-making.

Topic 10: Removal of Duplication
Adv van der Merwe explained that when she had first recommended the removal of duplication in clause 20 section 19C(4), she had stated that no advertisement was necessary as no change was being made. On further consideration, she realised that there was a change in meaning. If the words “for commercial purposes” were removed, the sentence would state categorically that one may not “permit a user to make a copy or recording of the work” – for any reason whatsoever. However, when the paragraph originally stated: “but may not permit a user to make a copy or recording of the work for commercial purpose” , it was implied that a copy of a recording could be made for some other (non-commercial) purpose.

Because there was a change in meaning, Adv van der Merwe advised that the amendment be published for public comment.

There were no questions and discussion.

Adv van der Merwe stated that the following amendments did not need to be advertised.

Topic 11: Retrospective Clauses and Delegations to Minister and Retrospective clauses
Adv van der Merwe stated that the following amendments did not need to be advertised. They were amendments that the Committee had already agreed to.

Clause 5 (Retrospective clause and re delegations to Minister)
1.         On page 5, from line 50, to omit subsection (7)(a) and (b)(i) and (ii).
2.         On page 6, from line 1, to omit subsection (7)(b)(iii) and (c). 

Clause 7 (Retrospective clause and re delegations to Minister)
1.         On page 7, from line 8, to omit subsection (7)(a), (b) and (c).

Clause 9 (Retrospective clause and re delegations to Minister)
1.         On page 9, from line 48, to omit subsection (5)(a) and (b).
2.         On page 10, from line 1, to omit the continuation of subsection (5)(b)(iii) and subsection (5)(c).


Topic 11: Removal of Duplication, Change of Wording To Be More Similar To Treaty Wording / S12(4) Of The Act (in Respect of Moral Rights)

Clause 13 Section 12A
12A(a)(i): On page 12, from line 10, to omit subparagraph (i).
12A(a)(iv): On page 12, from line 14, to omit subparagraph (iv).
12A(a)(vi): On page 12, from line 17, to omit subparagraph (vi).
12A(c):
(c) “…as well as the name of the author, shall be mentioned, if it appears on the work.”

Section 12B
12B(1)(a)(i):
“(i)        the extent thereof shall be compatible with fair practice; and”.
12B(1)(a)(ii):
(ii) to the extent that it is practicable, the source and the name of the author, if it appears on or in the work, shall be mentioned in the quotation;

12B(1)(b) (move to 12D(9)): On page 12, from line 44, to omit paragraph (b).

12B(1)(d):
 (d) … the name of the author should be indicated, if it appears on the work…”
12B(1)(e):
(e)        “…subject to the obligation to indicate the source and the name of the author, if it appears on the work—"
12B(1)(e)(i): On page 13, from line 13, to omit subparagraph (i).
12B(1)(e)(ii) and (iii):
“(ii)        which reporting, reproduction, broadcasting or communication shall be compatible with fair practice; or
(iii)        for purposes of providing current information, the reproduction in a newspaper or periodical, or the broadcasting or communication to the public,… shall be compatible with fair practice;”.
12B(1)(f)(ii)
“(f)        the translation of such work: Provided that such translation is—
(i)         done for non-commercial purposes;
(ii)         used for personal, educational, teaching, judicial proceedings, research, for the furtherance of language and culture, or professional advice purposes only: Provided that such use shall be compatible with fair practice; “

Topic 12: Amendment of  Wording to Accord with Treaty Wording

Clause 3 – Performers Protection amendment Bill
Section 3A
“(3)       The written agreement contemplated in subsection (2)—
(b)        must set out the—
(i)         royalties or equitable remuneration in respect of audiovisual works; and
(ii)         equitable remuneration in respect of sound recordings,
due and payable to the performer for any use of the fixation of the performance;”.

Topic 13: General technical amendments
Minor technical amendments were required in clause 33 section 39(1) In the Copyright Amendment Bill and in section 8D of the Performers Protection Amendment Bill.

Clause 7 (flowing from the technical amendments made to 28O and 28P in the PPAB, reference in sections 8E(6) and 8F to the Electronic Communications and Transactions Act were to be deleted.

There were no questions and no discussion.

Process
Adv van der Merwe explained that the Committee should decide on a way forward, i.e. Members could consider taking the day’s presentation to their party caucuses to consider or Members could accept the proposals for advertisement.

The Committee Secretary suggested that, because the presentation had been so exhaustive, Members might wish to discuss the presentation in party caucuses and then come back with proposals the following Tuesday. The alternative was to consider approving the amendments in the current meeting.

The Chairperson agreed that Committee Members should have the opportunity to go back and discuss areas where there might be additions, etc. before returning the following week to finalise the matter of advertising for public comment.

Mr Burns-Ncamashe stated that after all was said and done, the Bill would be referred to the NCOP. He asked Adv van der Merwe whether the National Council of Provinces and the provincial legislatures would be restricted to the President’s reservations or whether they would be able to interrogate all aspects of the Bills.

Ms Hermans endorsed the proposal to take the matter back to the various party caucuses to make absolutely sure that everything had been addressed.

The Chairperson noted that there was consensus in the Committee in respect of taking the proposals to the respective party caucuses.

Ms Hermans requested a response to Mr Burns-Ncamashe’s question as it was an important one.

Adv van der Merwe stated that the processes in the NCOP did not impact on the processes in the Portfolio Committee but the processes in the NCOP could address things that could not be dealt with in the Portfolio Committee. If there was disagreement, the NCOP would take the final decision. The Bills were originally tagged section 75 Bills which had meant that the decision of the National Assembly was final and the NCOP had not called for mandates from the provinces. However, with the change to section 76 Bills following the reservation of the Presidency and the decision of the Portfolio Committee to acknowledge that concern, the process in the NCOP would have to start again from the beginning. It would follow a normal section 76 process as if the NCOP had never seen the Bills before. There would have to be a briefing in the NCOP and in the provinces as well as a public commentary process in the Council and in each of the provinces.

Mr Burns-Ncamashe was pleased to hear that as it meant that, if there was a problem, it could be addressed by the NCOP. Most of the people who would be affected by the Bills lived in the provinces and they would get an opportunity to engage with the Bills. That process opened up a window of opportunity to address any concerns about the Bills..

Closing remarks
The Secretary noted that, based on the Committee’s decision, the parties would take the proposals to their caucuses and return with a decision in that regard. In the next meeting on the Remitted Bills, the Committee would deal with matters that did not have to be advertised. He would send a copy of the document to Members, indicating which clauses needed advertising.

The Chairperson thanked Adv van der Merwe and adjourned the meeting.

The meeting was adjourned.