Copyright & Performers’ Protection A/Bs: adoption

Meeting report

Opening Remarks
The Chairperson read a long procedural note on the remitted Bills, especially for new members of the Committee. The purpose of the meeting was to formally consider the remitted Bills, namely the Copyright Amendment Bill and the Performers Protection Amendment Bill. The President had referred both Bills back to the National Assembly for re-consideration in terms of Section 79(1) of the Constitution. In terms of the Joint Rules Section 79(1) Referrals, Joint Rule 203(1) (a) describes that the Committee must confine itself to the President’s reservations. That meant that the Committee could not consider aspects of the Bill that were not directly connected to the President’s reservations. After the last call for submissions, the Portfolio Committee, after inputs from the Department of Trade, Industry and Competition (dtic) and Adv van der Merwe, Senior Legal Advisor with the Office of Constitutional and Legal Services, on the submissions received from stakeholders, deliberated on and considered the inputs received from the public. The dtic and Adv van der Merwe also submitted proposed amendments for consideration. After each deliberation and input received from the dtic and Adv van der Merwe, Members were requested to take the draft amendments to their respective caucuses for input and to develop a party position in that regard. The Committee would proceed to consider the Copyright Amendment Bill first, followed by the Performers Protection Amendment Bill. In taking the process forward, she highlighted the processes undertaken in dealing with the reservations of the President and the decisions taken.

With regard to the President’s reservations on the tagging of both Bills, the Committee concluded that it supported the President’s view that the Bills should be re-tagged as section 76 Bills. Both Bills were subsequently re-tagged as section 76 Bills by the Joint Tagging Mechanism.

With regards to the President’s Reservation about inadequate public participation in terms of the fair use and related clauses, the Committee had taken effective steps to ensure public participation in the respective and related clauses. Two calls for further submissions on the fair use and related clauses were issued in June and December 2021. The Portfolio Committee, in its last call for submissions, ensured that the advertisements and related information were also published in Braille, ensuring that stakeholders who are visually impaired would be able to effectively participate in the legislative process.

With regard to the reservation about, firstly, the application of certain clauses leading to arbitrary deprivation of property and, secondly, inappropriate discretionary powers given to the Minister, the Committee agreed with the President’s reservation and would make the necessary amendments in that regard.

With regard to the President’s reservations related 1) certain copyright exceptions that could lead to arbitrary deprivation of property and restrict the right to trade and 2) non-compliance with international treaties, the Committee agreed that as a result of the call for further submissions, the constitutionality of those clauses would be revisited with regard to copyright exceptions and would appraise itself on whether the Bill complied with those treaties or not and would effect the necessary amendments if so required.

Therefore, informed by Joint Rule 203(2)(a), the Committee would proceed to consider only the clauses that addressed the President’s reservations with respect to the Copyright Amendment Bill and other clauses of the Bill were not open for consideration. The clauses before the Committee for consideration and adoption were: clause 1:definitions of acceptable format copy, authorised entity, broadcast, technological protection measure and technological protection measure circumvention device; Clauses 5, 7, 9, 11, New Clause: amendments of 11A and 11B; clause 13, 19, 25, 27, 29-P, 31, 33: section 39(2), 35.

The PC would then deal with the formal consideration of the Performers Protection Amendment Bill. The Committee would proceed to consider the Performers Protection Amendment Bill as it related to the President’s reservations. With regard to the President’s reservations with regard to the tagging of both Bills, the Committee concluded that it supported the President’s view that the Bill should be re-tagged as section 76 Bills. Both Bills were subsequently re-tagged as section 76 Bills by the Joint Tagging Mechanism

With regard to the President’s reservations on international treaties, the Portfolio Committee agreed that it would appraise itself on whether the Bill complied with those treaties or not and would effect the necessary amendments if so required.

Therefore, informed by Joint Rule 203(2)(a) with respect to the Performers Protection Amendment Bill, for formal consideration were the following clauses: clauses 2, 3, 4, 5, 6 (typographical error).

The deliberations would be led by Adv Charmaine van der Merwe from the Office of Constitutional and Legal Services (OCLS).

Consideration of the Copyright Amendment Bill
Adv van der Merwe pointed out certain consequential amendments in clause 9 that she had not previously pointed out.

Firstly, there was an incorrect reference to subsection 4 when it should have been 3. Because subsection 5 had been deleted, the references to subsections had to change. Another consequential amendment occurred in clause 38, which was the date of operation of the Bill once it had been enacted. Sub-section 2 referred to the retrospective clauses but, as those clauses had been deleted, there was no need for subsection 2.
                                                       
The Committee secretary proposed that after the reading of each clause, the Committee could vote on that clause.

Mr W Thring (ACDP), while listening to the Chairperson’s introduction, thought that the Committee had to confine itself to those concerns raised by the President. He had raised the matter in a previous meeting because it seemed that the Committee had gone beyond those concerns, based on legal advice. Had the legal advice given by Adv van der Merwe been correct?

Dr M Tshwaku (EFF) referred to the clauses that dealt with retrospectivity. He had thought the Committee had decided in the last meeting to look into other options to see how to address those rights that had been in the original Bill. He thought the Committee was going to debate how to handle the rights taken by the multi-national companies. He appreciated the Chairperson’s remarks, but when going through the clauses, the Members had to be appraised of each clause again before they could proceed.

The Chairperson stated that a Member of the EFF had been in attendance when the Bills had previously served before the Committee, and she had assumed there had been a handover from one Member to the other.

Adv van der Merwe responded to Mr Thring, stating categorically that the Committee was not going beyond the President’s concerns. The President had raised both substantive matters and matters of procedure. The Committee was limited to clauses 5, 7 and 9 for substantive reasons, but the Committee had also addressed clauses in respect of procedural concerns, i.e. public participation and those clauses relating to international treaties. The Committee had to address more than just the clauses specifically listed by the President as the clauses addressing the procedural concerns were not listed. She said that in one of her presentations, she had linked every amendment to a presidential concern.

She said that the decision that the Committee was about to take was one of the options available to the Committee under section 79(1). The Committee could only vote on amendments to the actual Bills, and that was where the restriction came in.  The Chairperson had read out all the amendments in respect of substantial or procedural reservations.

Adv van der Merwe added that she had previously explained that the Committee had already taken a decision in terms of the substantive concerns, i.e. the retrospectivity clauses. The Committee had decided not to include that in the Bill but to make it an oversight concern where the Department needed to come up with a procedure to address that matter. The matter was not being left aside but was being dealt with in a different manner.   

Mr D Macpherson (DA) asked where the option to reject the Bill lay. He had put the proposal to the Committee that a discussion had to be held in respect of rejecting the Bill. The Committee had not rejected his proposal and he believed that it was a discussion that the Committee had to have before it proceeded on the business that was before the Committee. That discussion seemed to have fallen by the wayside. So, where did the option exist as the advocate had herself put that option to the Committee?

Prince Z Burns-Ncamashe (ANC) said that it would be helpful for Adv van der Merwe once again to give an explanation of the principle or construct of retrospectivity. He understood that legislation was progressive or prospective. It might be retrospective as long as it did not impair the content of what was being enacted.

He added that the Bill was now tagged as a section 76 Bill and would be referred to the National Council of Provinces (NCOP) which would consider the Bill in terms of its own processes. Some issues that the Committee would want to deal with had been confined by the presidential reservations and section 79.

His assumption was that the NCOP processes would deal with those issues so the Committee had to confine itself to the rules which limited the Committee to deal with the President’s reservations, irrespective of the appetite the Committee might have to extend its mandate.

Dr Tshwaku said that the issue of retrospectivity was very important for the artists. The Committee was developing a Bill for the people whose rights had been exploited. The removal of that part and having a fuzzy issue or process did not help anyone. He thought that there would be a clause so that those artists who were dying as paupers would see it as a Bill that did justice to those whose rights had been taken from them. They would see it as a revolutionary Bill. Otherwise, it would appear that the Committee was a sell-out. He had thought that the Department or the advocate would have proposed a clause to deal with those people. He had seen clauses in the German Copyright Act addressing equitable payment. Maybe there were clauses in the legislation in other countries that could be borrowed.

He asked if the retrospective clauses had been tested against the Constitution? Was there a legal opinion on the matter? Without that clause, the entire Bill would collapse. It was not good enough to say the NCOP might consider it. As lawmakers, they had to address that matter. They should not rush, rush.

Mr F Mulder (FF+) said that on 25 May, he had made the FF+ opinion clear: the Bill could not be copied and pasted. He stood by that statement and could not support the Bill in its current form. He asked if an impact study had been done. There had been no clear answer on that. What were the options for the total rejection of the Bill that needed to be rewritten?

Mr Macpherson agreed with Dr Tshwaku because it was unacceptable to outsource what needed to be done. Hoping and wishing for something was a complete abrogation of the responsibility of the Committee.

He addressed the Chairperson who had previously stated that she had received numerous items of correspondence addressing issues relating to the Bills. She had committed to sharing with Members all letters and other correspondence relating to the Bills that had been addressed directly to the Chairperson. It was concerning that Members of the Committee were not privy to that correspondence. He asked that all that correspondence be made available to the Committee for Members to engage with.

Prince Burns-Ncamashe said that he had asked Adv van der Merwe to shed some light on a matter for everyone to get clear guidance. He was raising the matter with all humility. SA was a constitutional democracy [Poor connectivity] He raised it so that Members had a full appreciation of the constitutional and statutory construct. Some legislation was passed, emotionally, and thresholds were met but it was unconstitutional. Being passed by Parliament did not make it constitutional. It had to be within the limits of what was provided for by the Constitution of SA. That was why he was asking Adv van der Merwe to shed light on the construct of retrospectivity, including in terms of international law. If it were not permissible, debating something that was not constitutional meant that the Committee would be acting ultra vires. The discussion had to take place within the statutory framework.

He added that the current concerns about the plight of the artists and the need for retrospectivity were the ANC concerns. The ANC had always promoted redress and transformation.

Mr S Mbuyane (ANC) said that the matters raised about retrospectivity had been debated at length and the Committee had taken a decision as the advocate had just explained. The matter would be opened in the NCOP. The Committee could not dilly dally about something that had been going on for two years. The Committee had been told that the retrospectivity clause was unconstitutional, and monies could not be paid back, so the Committee should move forward and see what could be done going forward.

The Chairperson asked Adv van der Merwe to respond to three things: the option to reject the Bill, retrospectivity and the impact study, which she knew had been answered. She wanted Adv van der Merwe to deal with things in a summary way as she agreed with the last speaker that the Committee should move on.

The Chairperson stated that she would give Mr Macpherson yet another opportunity to speak as she felt that everyone had to be comfortable before the Committee moved on.

Mr Macpherson appreciated her indulgence, agreeing that it was the best way to chair such an important meeting.  He requested a response to his question directed to the Chairperson regarding the letters. She said that she could make the letters available but the letters themselves had already been taken into consideration as input into the Bills.
 
Adv van der Merwe explained that Joint Rule (7th Edition) 203 (2) indicated what a Committee had to do when a Bill had been referred back to Parliament:
The committee — (a) must consider, and confine itself to, the President’s reservations; (b) must confer with the corresponding Council committee if -. (i) the reservations relate to a procedural matter that involves the Council; or (ii) the Bill concerned is a constitution amendment Bill that was passed also by the Council, or a section 76 or a mixed section 75/76 Bill; and (c) must report to the Assembly on the President’s reservations. Paragraph 203 (2) (c) took the Committee onto paragraph 203(3): lf the committee agrees with the President’s reservations, the committee must -
 (a) recommend in its report how any procedural defect can be corrected, if the reservations relate to a procedural matter;
 (b) present with its report an amended Bill correcting any constitutional defect in the substance of the Bill, if the reservations relate to the substance; or
 (c) recommend that the Assembly rescind its decision to pass the Bill and reject the Bill, if it regards the Bill as being procedurally or substantively so defective that it cannot be corrected.

She stated that the Committee had dealt with 203 (3)(a). Therefore, the Committee could now do either:  b) amend the Bill and submit it to the National Assembly, or c) recommend that the National Assembly rescind the Bill. She had understood that the Committee was leaning towards b).

Adv van der Merwe stated that in respect of a legal opinion regarding the concept of retrospectivity, a number of legal opinions had been obtained. The concern of the legal fraternity was not on the substantiveness of retrospectivity, but the process was the problem. Process was not something that could be addressed by the Committee and that was why the Department had to be involved. The lack of clarity about the process and to whom it applied made it a blanket application and that was unconstitutional.

Dr Evelyn Masotja, DDG: Consumer and Corporate Regulations, Department of Trade and Industry (dtic), responded to the question about requiring a socio-economic impact assessment study (SEIAS). She agreed it was necessary and one had been undertaken in respect of the Bills. However, a regulatory assessment was not necessary. On 18 Feb 2015 Cabinet approved the requirement for a SEIAS to accompany all draft legislation. The Department of Monitoring and Evaluation in the Presidency would undertake the assessment. Subsequently, a letter was sent to all DGs to use SEIAS in the development of legislation. A SEIAS was submitted to the Portfolio Committee on Trade and Industry in respect of the Copyright Amendment Bill and the Performers Protection Bill on 25 May 2017. As far as dtic was concerned, it had complied with the requirement. She had recently confirmed with the Presidency that a SEIAS had been submitted for the Bills.

The Chairperson determined that the Committee had to make a decision as to whether to follow 203 3(a), (b), or (c).

Dr Tshwaku asked where in the Bill it would say that the Department would handle the retrospectivity aspect of the Bill and how the Department would handle it. He wanted it included in the Bill so that the Department was mandated to do a, b and c.

Mr Macpherson agreed with the decision to have a discussion about 203 (3) b) or c). He agreed that the Committee needed to have the discussion, but he wanted a meeting with that item as an agenda item so that Members could prepare for it. It was not right to have that fundamental question as an attachment to the current business as Members needed to prepare and make submissions. An off-the-cuff discussion was not adhering to the previous agreement to have a full discussion on the matter.

The Chairperson stated that the Committee was not having an off-the-cuff discussion. It was a discussion about what the Committee had discussed for two years.

Mr Mulder asked for a copy of the SEIAS study. He supported Mr Macpherson that there should not be a rush as there were still outstanding issues.

Dr Tshwaku supported a separate meeting to thrash out the issues. If they were defeated in that separate meeting, the matter would be done. Thereafter the Committee could have a meeting for approval or non-approval and there would be no discussion in that meeting.

Mr Mbuyane informed the Chairperson that there was a concerted effort by Members to stall the process. Going back over two years of discussion would not take the matter forward. Regarding the discussion about the SEIAS, he reminded the Committee that it was there to deal with the six reservations of the President. SEIAS had no place in the discussion. People were suffering while the Members insisted on delaying tactics.

The Chairperson asked if he proposed that the Committee proceed.

Mr Mbuyane proposed that the Committee proceeds with the current meeting.

The Secretary stated that there were two proposals on the table, but seconders were required. He reminded the Committee that a decision had already been taken on 203.3(a).

The Chairperson indicated that Dr Tshwaku had seconded a proposal.

Ms N Motaung (ANC) seconded the proposal to proceed with the meeting.

Mr M Cuthbert (DA) said Mr Mbuyane was casting aspersions on other Members and colleagues on the Committee. Mr Macpherson had put forward a proposal in good faith and the key point was that the option had been opened up to the Committee but Members had not been given an opportunity to discuss how defective the Bill was and whether or not it was desirable to move forward with the Bill. It would be a grave injustice if Members were not given a chance to discuss the matter in a stand-alone meeting. He asked the colleagues on the other side of the House to take it from where it comes. It was not stalling the Bill but ticking all the boxes and making sure that everything is in line before considering the multiple implications that the Bill had both socially and economically in the country. He reminded his colleagues that the last time the Bill had been rushed through, it had been returned by the President. It was worth the effort to exhaust all processes to ensure that there was not a repeat of that.

Mr Macpherson said that he was stunned by some of the comments because history was not on the side of the Committee with the Bill and when Members had not exhausted all options before the Committee. Some Members seemed to want to make an error for a second time. It was wrong that the Committee agreed, without objecting, that a full discussion is held on the issue and then retract, was not healthy for Parliament and where the Bill might or might go. One thing they could all be sure of was that the Bill would go before judicial review. It was a very serious process issue to agree to a discussion and then retract that agreement. That was why the Chairperson had correctly indicated that there would be a discussion. He supported her position and acknowledged that it was not easy to be a Chairperson but she had made the correct call.

He stated that Members should adhere to the steer of the Chairperson. It was important to allow submissions and to act as colleagues but to be t-boned was not really fair nor in the spirit of the constitutional democracy that Mr Burns-Ncamashe had so eloquently spoken of. They should not move in a numerical way because it was not just a numbers game. He requested the opportunity to present alternative approaches to the Bill. As Dr Tshwaku had said, if they were defeated in that meeting, Members would accept that but playing a numbers game was incorrect. Members should have the opportunity to persuade each other.

Mr Mulder agreed with Dr Tshwaku, Mr Macpherson and Mr Cuthbert. When Mr Macpherson had proposed a separate meeting, the Chairperson had responded that it was a reasonable request. He asked that the Committee consider the matter. It would be unfortunate if the Committee voted at that point as a vote would not make the problem go away. He appealed to the Committee not to make the same mistake twice as the Bill would probably end up in the Constitutional Court. As the Chairperson, she had the power to decide whether a meeting or not. He urged that a responsible approach be adopted.

Mr Malematja said in a democratic society, democracy was governed by various principles, one of which was democratic centralism. Imagine if one could say that one wanted to go over discussions that had happened in the past three years. A Bill would never get passed. Mr Mbuyane was progressive. The Committee could not sit on a Bill for months and months. The thing had been thoroughly debated. What was the matter that people did not agree with? He proposed that the Committee proceed.

The Chairperson closed the discussion. There were two proposals on the table, and she put both proposals to the vote.

Mr Macpherson raised a point of order. His proposal was to have a meeting to have a discussion about whether to enact 3b or 3c. Was the vote about deciding on 3b or 3c or about whether the Committee would have another meeting to decide whether to accept 3b or 3c. He was not sure what the Committee was voting on as it seemed that the Committee was leapfrogging itself.

The Secretary stated that Mr Macpherson’s proposal was whether the Committee should have an additional meeting to discuss b or c. Mr Mbuyane’s proposal was that the Committee proceeds at the current time with voting on the Bill.

Mr Macpherson raised a second point of order. He said that if the Committee was going to go ahead with the ANC’s proposal to go ahead with the voting, then there had to be a decision as to whether to go with 3c. His proposal was made in good faith that a decision would be made in that meeting, following a comprehensive discussion, as to whether the Committee would enact 3b or 3c. By not doing that, one was either supporting a decision to have the meeting or automatically supporting 3b. He did not want to be tied into a position that, because his motion was defeated, he was automatically assumed to have voted a particular way.

The Chairperson said that a decision had to be taken on the proposals and then the Committee would proceed in a particular way, but no Committee Member would be misrepresented. If necessary, a discussion on 3b or 3c would be held.

Mr Macpherson raised a point of clarity. If his motion were defeated, could he bring a motion to enact 3c? That might be on the table. He was concerned that Members might be brought into a position of supporting 3b.

The Chairperson had originally suggested that the Committee address the question of 3b or 3c in the current meeting and that remained a possibility.

Mr Macpherson said that the Committee was then moving to proceed with having the discussion in the current meeting.

The Chairperson agreed with Mr Macpherson.

The Secretary put the proposal to the Committee: It was proposed that the meeting proceeds according to the agenda:
Voting:
Mr Mbuyane – In favour
Ms Moatshe – In favour
Mr Cuthbert – Against
Ms Hermans – In favour
Dr Tshwaku – Against
Mr Mulder - Against
Mr Malematja -  In favour
Mr Burns-Ncamashe - In favour
Mr Thring – Against
Ms Motaung – In favour
Mr Macpherson - Against
In favour: 6- 5

The Secretary put the proposal to the Committee: It was proposed that a separate meeting be held to discuss paragraph 203(3)c):
Mr Mbuyane – Against
Ms Moatshe – Against
Mr Cuthbert – In favour
Ms Hermans – Against
Dr Tshwaku – In favour
Mr Mulder – In favour
Mr Malematja -  Against
Mr Burns-Ncamashe - Against
Mr Thring – In favour
Ms Motaung – Against
Mr Macpherson - In favour
Against: 6-5

The Secretary declared that the motion to continue with the current meeting had been carried.

The Chairperson stated that the Committee would determine whether to take the discussion on 3b or 3c

Adv van der Merwe reiterated that the Committee was dealing with Joint Rule 203, i.e. Bills referred back by the President. The Committee had to report on whether it agreed with the President’s reservations and that had been done. The Committee had determined how the reservations could be addressed. The Committee could present an amended Bill, or the Committee could decide that the Bill was procedurally or substantively so defective that it could not be amended, in which case, it would then recommend to the National Assembly that it should rescind the original decision to pass the Bill.

The Chairperson took hands for discussion on 3b or 3c.

Mr Mbuyane said that only c talked to what the Committee had done from the onset of the Bill but there was an option to reject or to pass. He needed clarity on the matter. The Committee had decided whether to pass or reject the President’s recommendation.

Adv van der Merwe said that the National Assembly had passed the B Bill on both the Copyright Amendment Bill and the Performers Protection Bill so the Committee agreed with the reservations and could then either provide the National Assembly with an Amended Bill or it could ask the National Assembly to rescind the previous decision taken in 2019 to approve the Bill. In simple terms, it meant: b) the Committee may amend the Bill or c) the Committee may reject the Bill. Those were the options before the Committee.

Mr Mbuyane stated that it seemed to him that the Committee was on 3b as it was amending the Bill.

Mr Macpherson said that it is worrying that there were shapeshifting people in the Committee and what people said and did were two entirely different things and that made it hard to deal with legislation in an honest manner. The problem with the Bill from the get-go, from the Fifth Parliament into the Sixth Parliament was the lack of honesty, lack of principle and lack of ethics in relation to the Bill. It spoke to the vested interests of bodies outside of Parliament and even outside of the country. That was scary to see, and he had never seen it before that Bill. Members jumped according to what those groups said. It was terrifying but the nature of a democracy. The very people that the Members prostrated themselves before and pledged themselves to were the ones that would be negatively affected by the Bill.

He stated that the first draft was so badly defective that the Committee had torn it up. The mistake was to think that the Committee could put together a Bill from the pieces, vested interests and people who had tried to steer it in a particular direction.  He could not believe that after the substantial changes, the concerns raised by the President, as limited as they were and the abrogation of Members’ duty of care towards the Bill by outsourcing it to another House in Parliament. The Bill needed the test of 3c to reject it. It had to be rejected because it was so procedurally defective – including the way in which the current issue had been handled. Documents requested still had not been provided to the Committee; letters to the Chairperson on the matter of the Bill had not been shared and it was not certain that the SEIAS had been correctly conducted.

Mr Macpherson said that he was not going to have his name attached to a Constitutional Court Order declaring the Bill unlawful, invalid and unconstitutional and that was why he recommended that 203.3 (c) be invoked and the Bill be rejected.

Dr Tshwaku said there were clauses that were not good but the one on retrospectivity was his main concern and he would appeal to Mr Mbuyane and the ANC to reconsider because it touched the lives of artists and was a very emotional issue. There had been no time to say that the option regarding the retrospectivity should be addressed. It was just removed with no further ado. He had consulted with his colleague. There was no clarity about how it would be done. It seemed that people were just rushing the thing through. People were waiting for the Bill but there were people dying as paupers, there were repeats of shows but the artists were not being paid. They were waiting for the Bill for that reason. It was not in the spirit of the Committee. He asked for three or four days to consider the matter. He wanted all the information from the advocate and the Department so that the information was at hand when debating. If he was defeated there, he would accept that but he pleaded for the time to consider that point, not months but days.

Mr Mulder said that paragraph 203.3(c) provided an opportunity for Committee to be responsible and to rectify to address a flawed Bill. He proposed that the Committee recommended that the Bill be rescinded. The whole process had to be rectified to the benefit of all those in need of the Bill.

Mr Cuthbert agreed with Mr Macpherson’s rationale and seconded the proposal.

Mr Mbuyane said that Dr Tshwaku had to get more clarity on what happened previously from his predecessor because there had been a decision on how to proceed with the retrospectivity: the Department had to go and see what it could do for the comrades that were dying as paupers so that they could get something from the government because the Constitution did not allow the Department to pay them back but Minister could regulate any clause. The Committee had agreed and it was in Hansard that the Committee had to receive guidance from the Department. He supported 203.3(b) that the Committee should present an Amended Bill.

Mr Thring said ACDP had its own reservations regarding the Bill and so accepted 203.3(c).

The Chairperson asked for a seconder to proceed with 203.3(b).

Ms Motaung seconded Mr Mbuyane’s proposal.

The Secretary put the motion to the vote: It was proposed that the Committee recommended to the National Assembly that the Bill be rescinded:
Mr Mbuyane – Against
Ms Moatshe – Against
Mr Cuthbert – In favour
Ms Hermans – Against
Dr Tshwaku – Against
Mr Mulder – In favour
Mr Malematja -  Against
Mr Burns-Ncamashe – Not on the platform
Mr Thring – In favour
Mr Macpherson - In favour
Ms Motaung – Against
Against: 6-4

The Secretary put the motion to the vote: It was proposed that the Committee present an Amended Bill to the National Assembly:
Mr Mbuyane – In favour
Ms Moatshe – In favour
Mr Cuthbert – Against
Ms Hermans – In favour
Dr Tshwaku – In favour
Mr Mulder -Against
Mr Malematja -  In favour
Mr Burns-Ncamashe - In favour
Mr Thring – Against
Mr Macpherson - Against
Ms Motaung – In favour
In favour 7- 4

The Committee could proceed with the discussion.

Dr Tshwaku requested that he be given permission to make a submission… (lost connectivity). He was uncomfortable about the retrospective part. How were people going to be compensated?

The Chairperson requested that copies of the earlier decisions taken regarding retrospectivity be sent to Members by the secretariat. She suggested that Dr Tshwaku write his concerns in the online chat.

Formal Consideration of the Copyright Amendment Bill
Adv van der Merwe presented the proposed amendments in the C Bill, showing how they were reflected in the D Bill that would be presented to the National Assembly. She also pointed out that the numbering of clauses in the D Bill would change because of the two new clauses added.

The Secretary called for parties to vote.

Mr Macpherson and Mr Cuthbert indicated that the DA rejected the Bill in its entirety.

Mr Mulder indicated that the FF+ rejected the Bill in its entirety.

Mr Thring indicated that the ACDP rejected all amendments.

Mr Mbuyane proposed that the ANC voted as a party in favour of all clauses.

It was determined that the ANC could vote as a bloc but that the party had to vote as each clause was read out so that a vote was recorded for each clause.

[During the voting, Dr Tshwaku had extremely bad connectivity and could not participate. He later expressed support for all clauses except clauses 5, 7, 9.]

Voting on the Amendments to the Copyright Amendment Bill
Clause 1- ANC In favour
Clause 5- ANC In favour
Clause 7 - ANC In favour
Clause 9 - ANC In favour
Clause 11- ANC In favour
New clause - ANC In favour
Clause 13 - ANC In favour
Clause 19 - ANC In favour
Clause 20 – ANC In favour
Clause 21- ANC In favour
Clause 23 - ANC In favour
Clause 24 - ANC In favour
Clause 25 - ANC In favour
Clause 27 - ANC In favour
Clause 29 - ANC In favour
Clause 31 - ANC In favour
Clause 33 - ANC In favour
Clause 35 - ANC In favour
Clause 38 - ANC In favour

All amendments to the Copyright Amendment Bill were adopted by the Portfolio Committee on Trade and Industry.

Dr Tshwaku requested, via the online chat, that Adv van der Merwe take him through the clause dealing with retrospectivity.

Adv van der Merwe began explaining that Clauses 5, 7, 9 dealt with retrospectivity.

The Chairperson noted that Dr Tshwaku was no longer on the platform.

Mr Mbuyane suggested that the Department and Adv van der Merwe meet with Dr Tshwaku outside of the meeting to discuss the retrospectivity clauses.

The Chairperson agreed.

Presentation of the Second Report to the National Assembly on the Copyright Amendment Bill
Mr Macpherson requested that the report to the National Assembly be dealt with in another meeting and that the opposition parties be given the opportunity to submit a minority report. It would be unreasonable to adopt the report before giving the opposition a chance to draft a minority report.

The Secretary said that he had captured the minority view and requested Members to read what had been drafted.

Mr Macpherson stated that procedurally the opposition had to be given the opportunity to submit its view in writing. It was an important point procedurally. He wanted to include some historical points as well.

Mr Mbuyane said that the proposal would defeat the objective of the meeting which was to adopt the report. The minority views were captured in the report. That had to be accepted and the Committee had to move on. Nothing would change the position.

The Chairperson asked about the process – could the report be adopted and the minority report tabled later?

The Secretary said there the rules did not allow for a minority report; minority views could be expressed within the report but the report would be adopted by the majority.

Adv van der Merwe stated that National Assembly Rule 166.4(a) stated that a minority could not submit a minority report but 166.4 (b) said that if a report was not unanimous, the Committee Report had to specify in which respects there was no consensus and it should express any views of a minority in a Committee.

Mr Cuthbert said that there were two different kinds of submissions, one being a minority report and the other being minority views which should be accurately captured. He asked Adv van der Merwe to share the text of Rule 166.4

The Secretary presented on the screen what had been captured in respect of how the secretariat had understood the minority position.

Dr Tshwaku came back onto the platform and said that he agreed with all amendments except the clauses on retrospectivity. He requested permission to submit a minority report.

The Chairperson explained that minority views could be captured.

Mr Macpherson said the majority could not decide for the minority in a constitutional democracy. The minority had to be given permission to submit minority views in writing. The Speaker had already ruled that the majority party did not decide what went into the report. It was no problem in the first Bill. The majority were damaging the procedure and falling foul of the Rules. He again requested the opportunity to present a minority view in writing. He was prepared to get a ruling from the Speaker if need be.

Mr Mbuyane said that he was fine with whatever process Mr Macpherson wanted to take but the Committee was working within parliamentary Rules and there could not be a minority report. The report was a Committee Report that contained the views of the minority. Mr Macpherson could go and consult, but the ANC had decided that the report would be adopted that day and the ANC Members would be moving forward.

Dr Tshwaku said that it would go down in history that the Committee did not support the interests of artists and creators that had been exploited. He would have liked that report to note that those people exploited would be compensated. What could they do to ensure that clause was carried over or the artists are compensated in some way? He would make submissions for inclusion.

The Chairperson read a screen grab submitted by the second Committee Secretary that indicated the process that the Committee had agreed to. She asked the Secretary whether it could be captured in the Second Report.

Dr Tshwaku said that it had to be included in some way. He did not want to leave it up to lobbying or someone’s mood. He wanted the retrospectivity issue included in the Bill because artists were dying as paupers. He pleaded on his knees.

The Chairperson explained that she had been asking the Secretary or Adv van der Merwe whether the point could be added to the report.

Adv van der Merwe said that the instruction to the Department should be added to the report because the House would adopt that point as part of the report and then the Committee could proceed with it as an oversight matter.

Dr Tshwaku asked that the point be included in the Bill as the Bill would compel someone to do that. Things could be changed or vetoed if they were only put in the report.

Mr Mbuyane agreed with Dr Tshwaku that it should be part of the report as it had been part of the deliberation in the Committee. However, it was unconstitutional to put it in the Bill. It should be part of the report.

The Secretary said that, in the past, and it was required, that opposition parties were given an opportunity to express a minority view in writing. He suggested that the parties could submit their views and the Committee could meet on Friday before the sitting of the House to consider the reports.

The Chairperson asked if there was any objection to the Secretary’s proposal.

Mr Mbuyane said that was just a practice. The Committee had voted to finalise the matter. The Secretary was suggesting that the vote taken earlier should be rescinded.

The Secretary stated that he was not suggesting that the decision be rescinded. Clause 203(3)(b) had been enacted when the Committee made the decisions on the clauses. The current matter was only about adopting the report.

Dr Tshwaku said that the Chairperson was ensuring that the Members were all afforded an opportunity to present their views. It was the first time that he had heard of a Committee Member who did not want to allow the views of other Members to be captured in a Committee Report. It was a team that had to agree to disagree. There should be a spirit of listening to each other otherwise they were just outcasts whose views were worth nothing. What was the difference between Wednesday and Friday? It was a strange thing. In other Committees, there was debate and an expression of views. In the spirit of being able to work together, they should wait until Friday. It was not necessary for Members to sulk.

The Chairperson assured Dr Tshwaku that his views were respected.

Mr Cuthbert agreed with the Secretary. He had presented a very progressive solution and it was not necessary to belabour the point any further.

Mr Mbuyane stated that if his decision was not being rescinded, he would agree to finalising the reports on Friday.

Performers Protection Amendment Bill
The Chairperson determined that the Committee would vote on amendments to the Performers Protection Amendment Bill

The Secretary asked if parties that had voted previously wanted to follow the same procedure.

Mr Cuthbert stated that the DA rejected the amendments in their entirety.

Mr Muller stated that the FF+ was making a blanket rejection.

Mr Thring said that the ACDP was making a blanket rejection

Clause 2 – ANC In favour/ EFF abstained

Clause 3 – related to types of payment - ANC In favour as long as those performers were getting something – management, payment or royalties. / EFF in favour

Clause 4 - ANC In favour/ EFF in favour

Clause 5 - ANC In favour/ EFF in favour

Clause 6 - ANC In favour/ EFF in favour
Clause 7 - ANC In favour/ EFF in favour

All amendments to the Performers Protection Amendment Bill were adopted by the Portfolio Committee on Trade and Industry.

Closing Remarks

The Secretary proposed that the Committee meet at 8 am on Friday morning 10 June 2022 to consider the reports to the National Assembly.

The Chairperson thanked Members.

The meeting was adjourned.