Copyright & Performers’ Protection Amendment Bills: briefing & deliberations on the President’s procedural reservations

Meeting report

Opening Remarks

The Chairperson greeted the Committee Members and everyone who was connected on the online platform.

The Secretary confirmed that the meeting was quorate.

The Chairperson noted that the agenda was devoted largely to a particularly lengthy presentation on the Copyright Amendment Bill and the Performers’ Protection Amendment Bill.

Briefing by the dtic on the Copyright Amendment Bill and the Performers’ Protection Amendment Bill

Mr Lionel October, Director-General (DG), Department of Trade, Industry and Competition, informed the Chairperson that Adv Rory Voller, Commissioner of the Companies and Intellectual Property Commission (CIPC), was in attendance because CIPC was the custodian of the Copyright Act and the Performers’ Protection Act.

The DG introduced Dr Evelyn Masotja, Deputy Director-General, Consumer and Corporate Regulation Division (CCRD), who would make the presentation on the behalf of the dtic.

Dr Masotja indicated that her presentation would be long and very detailed but assured Members that all details were contained in the presentation that had been submitted to Members. She would begin with the development of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill and then move onto the changes made to the original Copyright Act and the Performers’ Protection Act. She began with a detailed account of the process followed by the Bills since 1998 when attention had been turned to a consideration of the amendment of the Performers’ Protection Act of 1967 and the Copyright Bill of 1978.

Dr Masotja referred to the constitutional concerns of the President of SA about the Bills but stated that the focus of her presentation would be on the background to the Bills. She acknowledged the artistic creators who had contributed to the richness of society and then presented the challenges experienced in the industry. The challenges included, inter alia:

•The sector was currently not organised for bargaining purposes.

•Lack of formalisation of the creative industry exposed it to abuse.

•Piracy/counterfeiting was rife and enforcement agencies were not coordinated.

•Unfair contracts resulted in the perpetual signing away of economic rights.

•The lack of updated industry contracts for freelance performers.

•Non–payment of royalties.

Dr Masotja gave an extensive briefing on the objectives of the Copyright Amendment Bill which began with a desire to develop a legal framework on copyright and related rights that would promote accessibility to producers, users and consumers in a balanced manner, including the flexibilities and advancements in the digital space to empower all strata of citizens of South Africa.

She explained that the draft Copyright Amendment Bill had taken into account the recommendations from the Copyright Review Commission. The amendments set out in the Bill in terms of collective management, royalties and the establishment of the Tribunal were a direct result of the recommendations by the Commission. The current international treaties had been considered and a hybrid of Fair Use been included, although it was highly contested, particularly because it was a hybrid model.

The presentation contained two annexures providing full details of all amendments contained in the Copyright Amendment Bill and the Performers’ Protection Amendment Bill. In the amendments to the Copyright Amendment Bill, Dr Masotja emphasised the clauses relating to the retrospective application of royalties which were contained in clause 5 section 6A and which referred to the share of royalties in literary and musical works; clause 7 section 7A on the share of royalties in virtual artistic works; clause 9 section 8A which related to the of share of royalties in audiovisual works. As she went through the amendments, she noted (in green) those about which the President had raised concerns.

Dr Masotja requested that Ms Meshendri Padayachy, Deputy Director for Intellectual Property Law and Policy at the Department of Trade and Industry, provide further background details.

Ms Padayachy stated that the process of developing the Bills had been very much a balancing act. She gave an example of the difficulties faced by performers in respect of contractual issues. During the processing of the Bills in 2019, a new contract came out for visual performers that had two distinct clauses: one banned them from going to a SA court to lodge a dispute and the second was that, in the light of the Bills in Parliament, the creators had to waiver all rights to future benefits. As much as there were other laws dealing with contracts, etc. in SA, those were the very laws that were being used to disadvantage performers.

She explained that dtic had introduced technological measures to support performers. A device or software was placed on copyright material to prevent unauthorised access to the material or copying. That was intended to balance out the limitations that had been introduced. Wherever a new provision was introduced, dtic had found a mechanism to counterbalance the right.

Discussion

The Chairperson thanked the dtic and explained that the background presentation was only to ensure that Members understood the background to the Bills before them but the focus of the Committee would be on responding to the President’s constitutional reservations. Nevertheless, he invited Members to comment or pose questions.

Mr W Thring (ACDP) appreciated the concise but detailed presentation. He commented that there were so many legal terms that the Committee ought to perhaps have done a crash course in copyright law before listening to and studying the presentation. He asked how the cultural element, as referred to by the President, had been catered for in the Bill. When he had been in the Committee in 2013, Members had addressed the cultural aspect of the Copyright Act where certain cultural practices were being stolen by international businesses. For example, a maiden in SA would dress in one way and a married woman would dress in another way and tribes would paint their homes in a particular way and those intricate designs would find themselves on Gucci bags and so on in Europe. That was artistic intellectual property that was being taken. He was not sure if that was what the President had been referring to when he had remitted the Bills.

Secondly, Mr Thring asked if the Department could possibly unpack how the Bill covered the digital environment and what particular aspects of the digital environment were covered. He was not sure that he understood how the contractual gap between the performer and the contractor would be narrowed by the regulations empowering authors when they were designing or drafting contracts. He requested an elaboration of that matter.

Mr Thring asked how the exclusion of SA from international treaties impacted on performers and artists. He noted that the Department intended ensuring that SA became a partner to a number of treaties that SA did not currently participate in. Did the Copyright Amendment Bill balance access to education in terms of the DALRO licence versus the copyright of authors of educational works?

The Chairperson noted that, with the information before the Committee, a number of issues had been covered in the Bills. He asked if any issues had been set aside to be followed up on separately from the discussions on the current Bills. He understood what Mr Thring had said about being workshopped on the Bills which had originally been one Bill. Were there other important issues that had not been accommodated in the Bills? The Chairperson needed to whether the Bills were sufficient to achieve their aims. If the Bills covered most of the issues, and the Committee addressed the President’s concerns, would the industry and the sector have a better working space, be well regulated and enjoy up-to-date legislation when the process had been concluded? Were there areas that still required attention?

Dr Masotja informed Mr Thring that the Copyright Amendment Bill did address cultural issues. The Indigenous Knowledge Act (IAK) addressed cultural issues and was incorporated in the Copyright Amendment Bill, although the IAK had issues that had to be addressed before it could be completed. She acknowledged that SA had a very rich and diverse culture. The President’s letter was not very specific and so she could not say if he was concerned about cultural aspects. Cultural aspects were not substantive to the Bill as it was about Intellectual Property. The dtic would err on the cautionary side in respect of the President’s concerns, but it was of the view that the work undertaken in looking at the aspects of culture had been sufficiently covered and it did not impact on the provisions of culture in the Constitution.

The treaties that SA was aiming to ratify introduced digital rights, including the right to make works available to the public in a wired or wireless way and the right to communicate with the public via wire or in a wireless way. Those aspects had been addressed in the Bill.

Concerning the contractual gap between the author or performer and the contractor, Dr Masotja stated that the regulations would contain standard contractual terms. The contractual terms in the Act were there just to guide authors, performers and other rights holders so that when they engaged in bargaining, they were aware of the broad standards that should be incorporated in a contract. For example, when one engaged in a contract, one had to know what one’s rights were, the term of the contract, the remuneration or payment benefits. Those aspects, amongst others, should be contained in a standard contract. There were guidelines for drafting a contract but not a set contract. A contract had to be fair and there should be no abuse. The regulations would be promulgated in response to the state of the market in respect of contracts.

Regarding the treaties, Dr Masotja stated that SA society was not able to benefit from the treaties as there was no domestic legislation addressing the issues addressed in the treaties. Ratifying the treaties would have no impact on SA artists and creators until there was domestic legislation in place. Currently creators and originators in SA could not benefit from those treaties.

Looking at the balancing act between DALRO, education and the rights holders, Dr Masotja explained that DALRO had members and dealt with publishing and so on. It was one of many publishers. She would not be referring directly to DALRO, but could say that there were exceptions for education in the Bill. The intention was to balance the past imbalances and to respect the rights of the rights holders who could be a producer of a film or the rights holder of a sound recording, etc. That person could not be disadvantaged nor be deprived of his rights.  

She explained that the preamble to the WIPO Copyright Treaty stated that there was a need to maintain a balance between the rights of authors and the larger public interest, particularly in respect of education and access to research as reflected in the Berne Convention. International law recognised the need for that balance to ensure that society had access to materials for education. One looked particularly at the rights of the vulnerable community and struck a balance so as not to deprive the rights holder. It was not an easy balance but the Bill had looked at those rights and needs and had tried to find that balance.

Dr Masotja asked that Ms Padayachy be permitted to add to her comments and invited other colleagues to do the same.

Ms Padayachy agreed with the points made by the DDG and Mr Thring. The cultural aspect was important but the Bill was much wider than that. The introduction to the rules in the Bill did not exclude indigenous creators, singers and performers of those works. They would also benefit from the improved collective mechanisms and dispute methods. The Bill spoke to the creative industry as a whole. The Department of Arts and Culture, which was also in attendance, had a wider mandate to deal with the cultural aspects and policies around culture.

In terms of the digital environment, Ms Padayachy confirmed that dtic had looked into the treaties and incorporated those conditions in the Bills. She noted that the Copyright and Performers’ Protection Acts were very old and the country had not had television when the Performers’ Protection Act had come into being. She informed the Committee that actors had always been excluded from the current legislation as the focus in that legislation was on musicians. However, the works of actors were widely available on streaming platforms such as Netflix and Showmax, etc. The Bills regulated how works were to be traded and negotiated. To address the contractual gap, as the DDG had said, was very significant.

Ms Padayachy informed Members that when the Copyright Commission had sat, it had found that basic protection was missing from the industry contracts, such as dispute clauses, payment dates, when royalties would be due, etc. The dtic had attempted to address those issues by creating minimum standards that everyone was able to deal with because sometimes artists did not consider their work a business. They wanted to become famous, and they signed away their rights. She was quite sure that with the CIPC in charge, there would be an awareness process focussed on educating creators and performers of their rights, as well as the current Acts.

She explained that the dtic had looked at the contractual gaps to ensure that multi-nationals were prevented from exploiting SA performers. A contract should not be enforceable if the signatory was barred from going to a SA court. The Tribunal system allowed anyone to take a matter to the Tribunal and did not involve the same costs associated with going to court.

Ms Padayachy provided an example of the implications of SA not being a member of certain international treaties. She referred to the Marrakesh Treaty, which facilitated access to published works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. SA had not signed this treaty. The only library for the blind in Africa was in SA and SA could not exchange accessible format books, etc if the library needed another copy of Harry Potter, for example, from a library in Africa or vice versa. Those sort of transactions could not take place because SA was not a member of the treaty. That hampered matters.

Similar situations occurred in other areas covered by the Bills such audio-visual works.

She referred to the issue of licensing. The dtic was aware that there was a textbook problem. The Bill created the space in the form of limitations and protections. In certain instances, it allowed the use of works without permission from the authors and payment of the licensing fees when one wanted to copy a page from a textbook. She noted that there was a lot charging of additional licence fees but also a lot of double dipping, as well market domination by certain publishing houses. The exceptions and limitations were intended to strike a balance.  The Bill allowed for licences to be negotiated where there was double payment and did not restrict negotiations.

Dr Masotja referred the Chairperson to Adv Voller to make input.

Adv Voller was satisfied that the matters had been fully covered by the dtic.

Mr D Macpherson (DA) said he had the impression that the dtic was treating the situation like the violinists on the Titanic, sitting there waiting for it to sink and hoping that their music would soothe the terrified passengers. The dtic painted a picture that there was not much to be concerned about and that it was business as usual, so they could simply carry on. He was deeply concerned about the portrayal of the dtic’s attempt to smooth over the President’s concerns, without actually saying that there was nothing wrong.

Mr Macpherson reminded Members that the Bill had been so badly put together in the first place that the Committee had rewritten the Bill. The Committee was already in a problematic situation because the Department had been unable to put together a coherent Bill and it had been left to MPs to pick up the pieces and clean up the Department’s mess. That situation was further compromised because the Committee was rushed to put the Bill together before the elections because the governing party had wanted to wave around the Bill in front of the electorate to show that it cared and had done something.  Despite all of the objections and all the warnings, he did not believe that the dtic had done anything constructive to remedy the President’s concerns but was trying to swat them away and move on. Why was that?

It appeared to him that, from the very outset, the dtic had looked at the issue from a one-dimensional perspective, i.e. the artistic, creator viewpoint. That was an important view to be taken into consideration, but there were also other views to be taken into consideration, such as investment, the view of trading partners, the repercussions of legislation for SA and so on. That was not spoken to. It was completely ignored. Why did the dtic only speak about the issue from a one-dimensional perspective and not consider other factors? He added that the USA was currently reviewing SA’s preferential access of goods into the USA but the dtic had not told the Committee about that or what the repercussions were.  Why was that completely glossed over?

Mr Macpherson would have expected that the Department would acknowledge that the drafting of the Bills had occurred in a less than ideal way and that there were concerns from SA’s trading partners and investment partners, and that the current Bills did not assist investment specifically, that there were constitutional concerns and that there were concerns around application and how to remedy that. Instead, the violinists were on repeat until the ship actually sunk. He would be grateful for a response to his questions.

Mr October began to respond to the comments from Mr Macpherson but Mr Cuthbert called for a point of order.

Mr Cuthbert stated that the Committee found itself in a similar situation to the previous meeting where members of the public had participated in the Meeting Chatroom. They had been instructed at the previous meeting on the Bills that they might not do so and that it was purely for the use of MPs. It was not the first time that the particular individual had disrupted a meeting. He had disrupted the Committee meeting with the National Lotteries Commission in March 2020. He welcomed the participation of the public who were attending the meeting online but engaging with Members in their personal capacities via the Chatroom was making a mockery of Parliament. To address comments directly to a Member was totally uncalled for. He asked that the person be removed from the meeting.

The Chairperson asked the Secretary for the appropriate procedure.

The Secretary informed the Chairperson that he had made it clear to all members of the public who had indicated that they wished to attend that no one could participate in the discussion or the chats.  The Chairperson needed to make a ruling.

The Chairperson ruled that anyone who did not follow the rules should be removed from the meeting platform.

Mr October informed Mr Macpherson that the presentation was intended to provide some background to the purpose and the intention behind the legislation and what problems the Bills had tried to solve, and was not in response to the concerns of the President. He assured Mr Macpherson that the dtic agreed fully with the Minister that consideration had to be given to each and every single one of the concerns about constitutionality raised by the President. The dtic recommended to the Committee that every consideration be taken into account and amendments or withdrawals should be made. The Minister had presented a very clear proposal for addressing each and every issue raised by President. While addressing the President’s concerns, dtic believed that the original objectives of the Bill, i.e. protecting the artists would be maintained.

The Chairperson added that the focus for the session was to look at the reservations of the President. The Committee would be addressing two of the six areas of concern in that meeting and would continue to process the remaining issues the following day. However, there had been concerns about the background to the Bills as several Members had not been Members of the previous Committee.

He asked the DG if he was sure that the Bills would allow for sustainability and growth in the sector. He reminded Members that the intention of the presentation had been to inform them of the background and they should ensure that they had a full understanding of the issues.

Dr Masotja acknowledged that the DG had responded to most concerns. She had indicated in her briefing that her presentation was addressing only the background to the Bills and she would not be addressing the President’s concerns. It was about foundational information. Mr Macpherson had stated that there would not have been problems if the Department had listened to Members and so the Minister had said that the Department would be responding to the concerns and would address them to ensure that the Bill would be strong enough to withstand scrutiny. Recommendations to address the challenges to the Bill had been made by the Minister. The dtic had obtained a legal opinion in 2017 which had warned of some of the issues and so dtic wished to remain impartial and provide expert advice in order for the legislation to be sound against constitutional questions.

She added that the dtic had considered the investment focus, what the United States had indicated and the issues that had arisen as a result of the US trade conditions but that process would be a separate issue from the legislative and constitutional issues. However, the dtic could provide information of the US process at another stage. If the Committee so required, the dtic could provide the background to the United States Trade Representative (USTR) process. She respected Mr Macpherson’s views but the Bills were a response to the historical concerns of artists. Studies and consultations had confirmed the issues facing creators and artists. The Bills were not perfect at that stage but would be shaped by the leadership of Parliament and the Committee.

The Chairperson suggested that the Committee should have a short discussion. The Committee was at the mercy of a few Members who had been there before and who had knowledge of the background. Messers Thring, Macpherson and Mbuyane as well as Ms Mantashe had been exposed to the Bill previously but the majority of the Members were not there and needed to acquire a good sense of the work of the Committee. The focus would be on the Bills that had been sent to the President and the constitutional concerns that had been indicated by the President. He hoped to get an understanding of the way forward in the course of the meeting.

The Chairperson stated that, moving forward, the second presentation of the meeting would begin to draft the Committee’s report as it was a discussion of the President’s concerns. The Committee would ultimately be looking at all six areas of concern.

The Secretary informed the meeting that two reservations would be addressed in this meeting, i.e. the two reservations that were procedural in nature. Those would be dealt with by Adv van der Merwe who would thereafter lead Committee Members in a deliberation on the matters in an attempt to obtain consensus on those two issues.

Presentation by Senior Legal Advisor

Adv Charmaine van der Merwe, Senior Legal Advisor, Constitutional and Legal Services Office (CLSO), Parliament, stated that she had already presented on the issues so she would simply be highlighting a few things on the process issues. The two issues were the incorrect tagging of the Bills and the public participation in the Fair Use clause.

Incorrect Tagging

She stated that tagging issue also related to cultural matters. The two areas mentioned by the President were trade and cultural matters. The Committee needed to look at it in the light of concurrent legislative competency. When one looked at dictionary definitions, trade referred mostly to business. When the courts had considered the definition of trade, they had warned that the situation had to be considered in context. One had to conclude that trade did not extend to copyright protection or transactions in respect of copyright because those were areas of national competency.

The second aspect was cultural matters. Adv van der Merwe quoted a definition of cultural matters in “Constitutional Law of SA” by Woolman which dealt with the term “cultural matters” as used in Schedule 4 of the Constitution.  The question was whether the Bill dealt with those matters of culture as indicated in Schedule 4. The Committee needed to look at the words used in Schedule 4. She admitted that tagging was a difficult subject but used an example of taxation. The Bill said that records had to be kept for tax purposes but that did not make it a Bill on Tax.

She added that the President had referred to trade but copyright was not traded; it was the works that were traded. The Bill would have an impact on trade but it did not deal with trade.

Adv van der Merwe stated that the legal view of her Office was that both Bills were correctly classified as section 75 Bills. The Committee could take one of two actions. If the Committee agreed, it could report to the House that it did not agree with the President’s reservation related to the tagging of the Bills. However, if the Committee was uncomfortable with the section 75 classification, it could report to the House that it agreed with, or wished to be cautious in respect of, the President’s reservation. The Committee could then recommend that the Joint Tagging Mechanism (JTM) err on the side of caution and reclassify the Bills as section 76 Bills. The Bills could not be found invalid if the Committee had erred on the side of caution and had the Bill tagged as a section 76 Bill.

Public Participation in the Fair Use clause

Adv van der Merwe explained that the Copyright Act, 1978 (Act No. 98 of 1978) promoted a “fair dealing” system of exceptions, providing a closed list of exceptions. The Amendment of section 12 of the Act by the Bill stated that: ‘‘(1)(a) In addition to uses specifically authorised, fair use in respect of a work or the performance of that work, for the following purposes, does not infringe copyright in that work:”

The issue was Fair Use but instead of an open list as generally use with the Fair Use concept, the Bill had used a closed list to avoid vagueness or confusion. Public consultation on the matter had been extensive. Some members of the public had agreed with closed list. However, other members of the public said that the closed list was more confusing and that it should be an open list, while others said that the Bill should go back to Fair Dealing.

On 1 August 2017, according to the Parliamentary Monitoring Group (PMG) recording of the meeting: “The Committee asked for the stakeholders’ views on the incorporation of the doctrine of ‘fair use,’ the use of the phrase ‘such as’ for exceptions…” There was, therefore, a written record that the Committee had discussed Fair Use and the use of the phrase “such as” in detail. The matter had been discussed in several meetings, specifically in relation to what the public had said.

Adv van der Merwe referred to the courts’ injunction that Parliament should afford the public a reasonable opportunity to effective participation. She was of the opinion that there had been real active engagement by all Members of the previous Committee with the public and experts on copyright and, according to the courts, the legislature did not keep going back to the public once a concept had been enhanced as a result of input from the public.

The Committee could select one of two actions. If it agreed with the legal advice, it could inform the National Assembly that the previous Committee had engaged in sufficient public involvement. She reminded Members that the courts gave Parliament considerable discretion in respect of public involvement and so if the Committee disagreed with her or felt that there should be more public participation, then the Committee could inform the House that certain clauses should be published for public comment. If that happened, the Committee would have to be very careful about confining advertising and submissions to only those sections that dealt with the President’s reservation.

Mr October reiterated the views of the Department and the views articulated by the Minister. He agreed with everything that Adv van der Merwe had said but the perspective of the Minister and dtic was to err on the side of caution and not to go around in circles until the matter ended up in the Constitutional Court or was returned to Parliament. He advised the Committee to go for the second option in both cases, i.e. on the first point to retag the Bills. That removed all risk.  On the second point, he proposed that the Committee invite public comment. SA prided itself on ensuring public debate and he was aware that there were many opposing views to what was contained in the Bill. The Department and the Minister believed that the remedy for addressing opposing views on Fair Use was to encourage debate and not to close the debate, and so they supported opening up the specific sections to public comment. The public should comment on a matter of material importance.

Discussion

Mr Macpherson wanted to second the DG but he could not as the DG was not a Member of the Committee. He appreciated the views of Mr October which reiterated what the Minister had advised the previous week.  He believed that it would be good for the Committee and everyone at large to give due consideration to the concerns that had been highlighted. He would like to see the public being given the opportunity to engage.

He did not want to see a Mexican stand-off with the President where the President said that he would not sign and Parliament would not change the Bill. There was already a number of Bills from the Fifth Administration on the President’s desk. He formally proposed that the Committee resolve to address the issues highlighted by the President and to remedy them, where necessary.

Mr F Mulder (FF+) stated that he had been covered by Mr Macpherson. The FF+ supported the views of the DG and the Minister. The Committee had to take the opportunity to get the Bills right. The Bills should protect the people who make the works, those who engaged professionally with them and those who used the works.

Ms Y Yako (EFF) agreed with the DG that the Bills be taken to the public and that the matter be moved as quickly as possible to expedite the moving on of the Bill.

Mr Thring stated that there appeared to be unanimous consensus on option 2 of the choices presented. He did not want to break the unanimous decision of colleagues. He agreed with his colleagues that those two options were the best way to go

Ms Hermans said that it was good to see that, across the political parties, Members agreed on the matter.

The ANC was determined to set matters right and thanked the other political parties for their support.

The Chairperson commented that all political parties seconded the DG.

Ms Hermans stated that it was an honour to second the proposal by Mr Macpherson.

Resolution

The Committee unanimously resolved to accept the second options proposed by the Legal Advisor, i.e. to re-tag the Bill and to open up for public engagement on the specific issues raised.

Mr Macpherson said that he would go out and celebrate the fact that the Members agreed with him. He would buy a bottle of champagne.

The Chairperson stated that he would support Mr Macpherson’s celebration but that he should not bring the champagne into the meeting as that kind of thing had already been an issue in recent times.

Closing remarks

The Chairperson noted that the first presentation had provided the debate and that the Committee had then begun to look at the six areas raised by the President. He noted the consensus on the two issues presented that day. The following day the Committee would look at the substantive issues.

The Secretary said that the decision of that day would form part of the report to the House at the conclusion of the deliberations on the four outstanding reservations, which formed the agenda topic for the following day. Should the discussions not be concluded the following day, two additional days during the following week were available for further consideration of the matter.

The Chairperson stated that the Legal Advisor would take the Committee through the remaining concerns the following day and then discussion would take place and the process going forward would be determined.

He informed Members that the meeting on the following day would commence at 9:00 and would deal with the remaining four reservations of the President.

The Chairperson thanked the Members for their participation.

The meeting was adjourned