Copyright & Performers’ Protection Amendment Bills: deliberations; Committee oversight report

Meeting report

Opening Remarks
The Chairperson reminded the Committee that parties had been requested to take the proposed Amendments to the Copyright Amendment Bill and the Performers Protection Amendment Bill to their caucuses as they would be discussed at the next meeting on the two Bills.
As usual, the deliberations would be led by the Office of Constitutional and Legal Services (OCLS) and the Department of Trade and Industry (dtic). Adv Charmaine van der Merwe from the OCLS would lead the discussion and Dr Evelyn Masotja, DDG: Consumer and Corporate Regulations at dtic would add comments on behalf of the Department.

There was some deliberation on how to move forward. Members had no proposals. The Secretary proposed that Adv van der Merwe go through all the amendments and Members could indicate where they were in disagreement with a clause.

The Chairperson stated that Adv van der Merwe could simply continue from clause to clause unless Members raised their virtual hands.

Presentation of the proposed Amendments to the Copyright Amendment Bill
Adv van der Merwe presented the two documents used in previous meetings. She read the relevant clause and discussed in previous meetings.

Clause by clause discussion of the Bill
Clause 1: Definitions
“accessible format copy” –The wording was similar to the Marrakesh Treaty but the Bill went further and included all persons with a disability, not just sight, because of the rights contained in the SA Constitution.
Recommendation: Retain wording as advertised.

“authorized entity” – gave clarity on who the Bill was dealing with when talking about assisting those with a disability.
Recommendation: Retain wording as advertised.

“broadcast” – there had been discussion in the previous meeting and concerns were raised about the use of “wire” in the definition in the light of international treaty wording and whether wire broadcasting occurred in SA. It had been decided to determine a definition and align the two Bills to that definition as there was no clarity on the matter from the Department of Communications and Digital Technologies.

Adv van der Merwe provided new information with regard to the use of wire in SA. In SA, there were two main broadcast methods, i.e. satellite and wireless. However, there were no laws preventing broadcast by cable, i.e. wire. It was unlikely that cable would be brought to SA as it was costly, but changes could take place. The Internet Protocol Television (IPT) was an internet broadband service that was bundled with television services. Depending on how it was structured, it might or might not require a broadcasting licence. At the moment they did not need a broadcasting licence. The service providers provide an internet service that was combined with television but at the moment those service providers required only an Electronics Communication Licence as they were bundled with the television provision and used existing licences. The services were normally offered in hotels and gated communications and could require wire and could, in the future, require a broadcasting licence, if those services reconfigured their offering, which would then mean that there was the provision of wire broadcasting in SA.

The second form that could involve using wire would be the fibre optical network that almost all the internet services in SA were using. They were mostly providing ‘channels over the top’. Streaming services were offered via wire but they were not classified as broadcasting services. The Department of Communications and Digital Technologies White Paper seemed to classify those services as audio-visual content services, but broadcasting would also be an audio-visual content service.

Adv van der Merwe explained that, at the moment, what was seen as “wire” was not considered broadcasting in SA but that could change, depending on the White Paper. In sum, currently, SA did not use wire but that could change with the Department of Communications and Digital Technologies White Paper or because a hotel or gated community decided to change its set-up of the internet protocol television. Because there was a possibility that wire is used in the future, she advised that the word “wire” be included. That would “future-proof” the Bill.

Regarding adherence to treaties, she stated that treaties gave flexibility and, in that particular case, there was sufficient flexibility to include the word “wire” in domestic law.

Recommendation: Retain wording as advertised; include “wire”.

There were no comments from Members.

1.4 “lawfully acquired” – the Committee had wanted to be strict about access to material, but it became too strict when “lawfully acquired” was added to the definition and wording. The courts also needed some flexibility, so the proposal was that when it came to personal copies, the term “lawfully acquired” should not be used as a definition or in the text of the Bill. It was too restrictive.
Recommendation:
- the definition of “lawfully acquired” be removed;
-the addition of “lawfully acquired” to section 12B(1)(h) and section 12(3)(b) be removed.

1.5 Technological Protection Measure (TPM): The concept in SA copyright law was a new one and while the Bill should be careful to protect technology, the amendment had too many unintended consequences and would breach other laws. The intention had been to provide rights to both consumers and developers but it constrained the three freedoms as previously indicated.
Recommendation: Retain the wording of the Bill before the latest advertisement and add “product” (also to paragraph (b) of the definition of TPM) to extend the protection provided.

1.6 Technological Protection Measure Circumvention Device (TPMCD): the advertised definition could limit certain freedoms. The amendment had also added examples, but the restrictions had become too broad and the use of examples had certain unintended consequences.    
Recommendation: Retain the wording of the Bill before the advertisement and add “or service”.

Clauses 5, 7, 9: The Committee had already agreed to delete the retrospective clauses as well as the delegations to the Minister. In addition, they required gender-neutral drafting.

That had been a substantive referral of the President. The clauses had related to copyright that was assigned before the Act came into implementation. The Bill had wanted to (a) enforce the sharing of any profits currently obtained from those earlier contracts and (b) had delegated plenary power to the Minister to determine how to achieve that sharing of profits. However, such delegation to a Minister was illegal and unless Parliament could resolve questions of who had been deprived and how to take cognisance of the individual details of each case, etc., such a law could not be passed as it was too vague and did not allow for certainty in drafting. The retrospective clauses and the delegations to the Minister had been withdrawn by the Committee and the National Assembly had been informed of that decision.

Discussion
Dr M Tshwaku (EFF) stated that clauses 7 and 9 were still being debated. There had not been a decision in that regard. Currently, rights were unfairly held by the multi-national music companies like Sony, Gallo, etc. and those rights had to be returned to the originators.

Adv van der Merwe said that all three clauses dealt with the substantive issues that arose from the President’s reservations. She understood that a decision had been taken by the Committee but perhaps the decision could be rescinded. She would still recommend that the clauses be removed from the Bill because the questions of the process could not be answered and therefore it would be unconstitutional. The OCLS recommended that it be dealt with by way of oversight and that the dtic should come to the Committee with a process for how it could be addressed. It was not the substantiveness that was unconstitutional; it was the uncertainty and the process. The questions of who it would affect, how far it would extend and when one would be entitled to redress caused the discomfort in terms of constitutionality. The Department could perhaps advise.

The Chairperson recalled the decision and that it had been decided that the dtic should come up with a method.

Mr W Thring (ACDP) said the advocate was saying the clauses were unconstitutional in terms of procedure. The Committee should, therefore, look at a different mechanism for addressing the issue. There was obviously some disagreement about just shelving the clauses. He had raised the matter when it had originally been discussed. One had what appeared to be a travesty of justice for an originator who, because of a lack of support for the person at the time or because the person had been in a financial predicament, had signed an agreement with a producing company and had obtained a pittance for work without any recourse should the work make money in the future. It appeared to be something that the previous Committee had wished to avoid.

As the advocate had said, when looking at the definition of wire, it was better to add it when working on a Bill as Amendments were difficult to add to a Bill. Would the matter of contracts previously signed not be difficult to add to the Bill, if the matter were not dealt with there and then?

The Chairperson asked the Secretary to indicate what the decision had been and whether the Committee should be discussing both retrospectivity and the powers of the Minister.

The Secretary confirmed that the decision taken had referred to both retrospectivity and the powers of the Minister. The President had argued that it might constitute an arbitrary deprivation of property, and with regard to the discretionary powers, he was of the view that it might constitute an impermissible delegation of legislative authority.

The Secretary stated that the Committee’s first report to the House had addressed those issues. The report dated 14 May 2021 had stated that the Committee agreed with the President’s reservation that the retrospectivity provision, as contained in the Bill, might constitute an arbitrary deprivation of property and the Committee would accordingly amend the affected clauses to provide for the retrospective operation only. The Committee had also agreed with the President’s reservation with regard to discretionary powers and would request further submissions with regard to discretionary powers. The House adopted the report on 1 June 2021. The Committee had taken a position and had agreed to the concerns about the retrospectivity clause as well as the delegation of powers of the Minister.

He said that the Committee had dealt with the matter and so it was moot. Adv van der Merwe was simply indicating the decision taken by the Committee on 12 May 2021. The Bill reflected the Committee’s decision.

Dr Tshwaku said that at the last meeting, the Committee had been asked to have a look at the list of amendments and he could raise sharply that the three clauses were at the heart of the Amendment Bill because there were people like Zola 7 and Zahara and others who were locked into unfair copyright ownership of their rights. If the Committee took such a position, it would mean that it had sold out in terms of the musical people and the owners of those rights. He appealed to the Committee to look into the issue because it formed the core of what was currently happening, on the ground, with artists whose rights had been taken unfairly and those artists were dying as paupers. It could be seen on television. Maybe the Committee should go back to the Hansard and see what had happened in that discussion. The three clauses were the ones everyone was looking at. He requested permission to provide a written proposal on the clauses. The Committee had to look at them very closely. He agreed with his colleague from the ACDP that there was a problem. The Member from the ACDP had also raised the unfairness.  If that matter was not addressed, it was not addressing the core matter in copyright in SA.

The Chairperson stated that the EFF had participated in the original discussion and the Committee had already agreed on the matter.

Mr C Malematja (ANC) cautioned the Committee and the process itself. As much as Members were agreeing and disagreeing, they were procrastinating when the same system was still in operation. He said that one had to take what was really happening at the current time vis-à-vis people like themselves who were avoiding it. While the Committee took its time on the matter, those who were affected, continued to be affected and were ultimately dying in poverty.

Everyone had watched Deborah being buried over the weekend. In fact, he had sent a message to some of his colleagues on the Committee, asking them to listen to what was happening from the horse’s mouth. When the likes of Yvonne Chaka Chaka stood up and told their story, they did not point at the private sector; they pointed to the government that should protect them against copyright. It was their own work and when they felt they were due for the royalties, they found that the big companies were benefitting, and they were just witnessing it. The Committee was just procrastinating. Members had to find a way to save further damage and to save lives.

Mr Z Burns-Ncamashe (ANC) stated that issues raised by the two Members were at the heart of the concerns expressed by the originators of work. It was conspicuous in the public hearings. The Committee might be limited to issues raised by the President and which he asked Parliament to look at, but the beauty was that the Bill was now tagged as a section 76 Bill which meant that any issues that might have not been resolved by the Portfolio Committee could be addressed at the level of the National Council of Provinces (NCOP). If the National Assembly was legally unable to review such a decision, the NCOP could look at it. He asked Adv van der Merwe whether it was a matter of the principle of functus officio that prohibited the Committee from addressing the matter raised or whether it was a legal principle. Could she once again address that question and provide clarity so that they could address the pertinent issues raised by Members.

Mr S Mbuyane (ANC) stated that the Committee had agreed that the matter of retrospectivity was unconstitutional but there had been a proposal that the Minister should do something as artists were dying as paupers. Something had to be done. Maybe the Companies and Intellectual Property Commission could introduce a levy on collective societies to help struggling artists or the dtic could introduce a private copy levy to assist struggling artists. But something had to be done as the Committee had agreed that something had been done by the Minister to address the question of retrospectivity. How was the Committee allocating the responsibility of the Minister to do something?

He agreed with Mr Burns-Ncamashe that the Portfolio Committee’s main task was to deal with the reservations of the President. The Bills had been re-tagged as section 76 so the NCOP could address the matters that the Portfolio Committee could not by starting the process afresh. Something had to be done to assist the artists who were dying as paupers.

Dr Masotja stated that legal and constitutionality issues remained a constraint that had to be taken into consideration. She had understood that the Committee had taken a decision on the matters. She did not disagree that what had been removed was very important, but the Bill still had value. Existing provisions had been strengthened. For example, the regime on royalties had been strengthened and extended to different works and fair contracting, which was at the heart of the matter, as well as guidance about those contracts, had been included in the Bill. The Bill contained rights that had not been there before. Some clauses were very useful and creators could rely on them. It should not come across that there were no additional rights in the Bill. There were provisions in the Bill relating to the governance of collecting societies. It empowered the Regulator and criminalised certain actions. In addition, it extended the scope of the Copyright Commission and provided an avenue for recourse, especially for artists who did not have recourse to the courts. She acknowledged that, because of the President’s reservations, the Bill did not address all issues, but there were rights that should be acknowledged. There was a need to support the creative industry.

She noted that originators were particularly concerned about the time that it was taking to finalise the Bill as they had been waiting for it since 2009. She truly believed that the originators of work would benefit from the Bill, even as it was without those clauses, but the dtic was open to undertaking any additional work that the Committee needed to be done to take the matter forward.

Dr Tshwaku said that his colleagues agreed that they had to look into it because when one drafted law, it had to be just in terms of what was happening in the country. The dtic had to look into the matter and understand the reality of the situation. For example, in the royalties, there was still a lot of confusion about the owner and there were different types of royalties e.g. sales time, needle time, etc. How did it address the issue of Brenda Fassie and her work being held by some company? How did the Bill address the issue of Zahara? How did it address the issue of Nomcebo and “Jerusalema”?

As a doctor he could be working in the laboratory or doing some research and could come up with an innovation, but the institution would own it and benefit from it even though it was his idea. Because the company had financed him, it owned the rights. Was that fair? Dr Masotja said that they should move on as they were going to put systems in place so that it never happened again. But innovation came only once in a while. Einstein’s formula E = mc2 was used everywhere and people were benefitting from it, but the dtic wanted to say that the family could not go back and claim the rights so that they could benefit.

Dr Tshwaku said that when he read the Bill, everything in the Bill was contradictory; it did not really get into the matter of protection. Zola 7 did not even own the rights to his name. That was why they were looking for protection. Their lifetime work was sitting with companies, and they all wanted their ownership back. That issue could not be put under the table. It had to be addressed. The Committee should use examples and call all the artists to see if the Bill was addressing them. The Bill might be unconstitutional to the Constitution, but it was unconstitutional to the livelihood of the people on the ground and therefore they had to change the Constitution to favour the people. The Committee had to look into the matter much more deeply. Dr Tshwaku reiterated that he did not own some of his own ideas and they would be patented by others, despite the fact that he had sweated day and night to help the scientific industry. The institution held onto his rights of those things. They had to look into the matter.

Adv van der Merwe responded to the questions raised. In response to Mr Burns-Ncamashe’s question on functus officio, she explained that it meant, simply, whether the Committee still had a role to play. It did, which was why she was presenting the matter to the Committee. The Committee would have to agree to a C list, i.e. a list of Amendments that were agreed to. Unless the Committee requested the National Assembly to rescind its decision on those three clauses, that decision had already been.

She added that the other issue that flowed from the discussion was whether it would be difficult to deal with the matter later. Dr Tshwaku had made some very good points on further discussions but she thought that a meeting to discuss the issues should happen with an oversight focus. Some of the issues raised, including
Amending the Constitution went much broader than what the Committee was allowed to do. Not all of the options to protect authors were open to the Committee but it was worthwhile knowing what protection was provided by the Bill. She agreed that there was a delay and as long as it was delayed, the Committee had to keep in mind that all of those additional provisions could not be applied until the Bill was approved.

Adv van der Merwe explained that there was no understanding of the scope of the problem and what process was needed to address it. The Department had to undertake a study of the issue. That was the work of the Department.

Mr F Mulder (FF+) wanted to put it on record that the FF+ had raised similar concerns in the previous week’s meeting. He was comfortable with the current process because important work was being done, and in a responsible manner, but to amend the Act partially was dangerous. He was concerned that there were still aspects of the Bill that would be unconstitutional.

Mr Burns-Ncamashe stated that the issue was about redress. He asked about the extent to which the same principle, which would have been permissible in respect of land reform, applied in respect of restitution of copyright. Restitution in land reform had to be looked at from 1913, i.e. linked to the 1913 Land Act, but the cut-off date allowed for retrospectivity. He was trying to juxtapose the phenomenon and find out whether the same principle could be applicable to copyright. He was playing Devil’s advocate while he was aware of the limitations of functus officio and the nemo judex in causa sua principle. When it came to court, the legal principles would be argued. As Parliament, it was very easy and possible to pass legislation by meeting the threshold and by being able to convince each other. However, in a constitutional democracy, the 34 constitutional principles had to be considered as a composite set of principles. It was not unusual that Parliament passed a law but it did not pass constitutional muster. That was what they did not want to do but, equally, they had to find a way to address historical and very painful injustices. Legal gurus had to find a way for the Committee to navigate the situation.

Mr Mbuyane said that the Committee was trying to play hide and seek. There was nothing confusing about the Bill. People were fuelling the confusion. The Committee was starting to operate outside the rules of Parliament which stated that only the President’s concerns should be dealt with. If the reservations of the President, and the BlindSA issue, had been addressed and taken care of in the Bill, the Committee had to move forward.

He reminded members that the Committee had already held public hearings before Dr Tshwaku had joined the Committee. They could not go backwards. Dr Tshwaku could be briefed outside of the Committee meeting.

Mr Cuthbert said that Adv van der Merwe had informed the Committee previously that if the Bill was so defective that it could not be rectified, the Committee could reject it. That was Mr Mulder’s point of departure and the DA agreed with him. He believed that they were participating in a futile exercise as the Bill was defective to such an extent that it could not be brought to an acceptable state for it to pass. He reiterated that the DA’s stance was to wait until it came to the time to vote on the matter.

Adv van der Merwe explained IP was property and had to comply with section 25 in terms of deprivation of property but the discussion would have to go much broader and the Committee could not consider that at the moment.

Clause by clause presentation cont.
Clause 11: Correction of the gender references in the Bill to make it gender-neutral and in line with more acceptable drafting principles. The gender referencing applied to several clauses.

New Clause: Changes to Sections 11A and 11B added exclusive rights in respect of computer programmes and published editions. It was an addition to the Bill in line with public input and approved by Parliament.
Recommendation: Accept the wording as advertised (but correct “services” to read “service” as in the original).

Clause 13
Section 12A(1) – consideration was given to the deletion of paragraphs (i), (iv) and (vi) because they were duplications but the public had called for them to remain as they contained issues beyond what was mentioned in other clauses and provided valuable examples.
Recommendation: Retain paragraphs (i), (iv) and (vi).

Section 12A(c) – the amendment dealt with ensuring that the author was accredited, but only if the name appeared on the work; one did not have to go and look for the name.
Recommendation: Add “if it appears on the work” (in reference to the name of the author)

Section 12A(d)- the amendment added the fair use principles but it had been decided that was not necessary.
Recommendation: Delete 12A(d).

Section 12B(1)(a)(i) – the advertisement substituted “extent justified by the purpose” with “fair practice” but the Berne Convention referred to both phrases.
Recommendation: Use both “fair practice” and “extent justified by the purpose”.

Section 12B(1)(a)(ii) – consideration had been given to allowing for an author’s name to be used with a quotation from that author’s work “only if it were practicable”. However, the exception for quotations when it came to copyright already existed in the current Act and it would be unfair to the author to use an extract without naming the author.
Recommendation: Because “as far as is practicable” is not in the Copyright Act, it is recommended that it not be included in the Bill.

Section 12B(1)(b) – moved to section 12D(9) (use of illustrations for teaching).

Section 12B(1)(c) (will become (b) as per the above move) – Discussed the previous week: remove the wording from the Canadian Act which talks about ephemeral rights/broadcasting and uses the previous wording.

To explain the situation to which the clause applied, Adv van der Merwe said that it would apply in a situation where a broadcaster was recording a sporting event in a stadium. In such a situation, all sounds heard in the stadium would be taken in, and perhaps, at the same time, a song would be captured. This right allowed the broadcaster to include a song captured during the recording of an event in its broadcast without approval from the copyright holder as the intention had not been to record that song. That broadcast could be held and used for six months after the event.

Adv van der Merwe reminded Members that previously the question had been raised of whether six months was too long a period for a broadcaster to retain and use such a recording. Research showed that the United States Copyright Act allowed for a period of six months before the recording had to be destroyed. In Finland, the period allowed was one year. In considering the time period, the Committee had to look at the need for a broadcaster to retain records. The Electronic Communications Act and the standard terms of the Independent Communications Authority of South Africa (ICASA) required broadcasters to maintain records of their broadcasts. Anyone had up to 60 working days to lay a complaint, i.e. more than two months, and then it might take some time to address the matter. There were also other instances where ICASA could ask for the records. If the Copyright Act required a broadcaster to destroy a recording within one or two months, the broadcaster could not adhere to the Electronic Communications Act and ICASA. The current six months seemed to be working and no one had raised an issue with it during the public input process.

Adv van der Merwe reminded Members that the Bill also stated: “or such longer period as agreed”. To make such an agreement would require the broadcaster to identify the song, find the copyright holder, and reach an agreement. If the time period was too short, the broadcaster would not be able to complete the process before it expired, making such a provision redundant.

In respect of radio, she explained that radio broadcasters were paying royalties, and when they had to destroy records, they would stop payment of royalties. In addition, it had to be borne in mind that it was also costly to destroy a broadcast. Some advertising campaigns and some current affairs run much longer than two months and would have to be re-recorded, so the costs would multiply significantly. Broadcasters like the SABC would have costs six times as high as currently the case if a period of only one month were applied.
Recommendation: Retain the wording of Bill prior to the advertisement, i.e. six months be retained.

Discussion
Mr Mbuyane said that public input had suggested ephemeral time should be reduced even further from 60 days to 30 days. He referred to his notes on input during the public hearings. Perhaps the advocate had other issues with the clause. Could she clarify her position as his question was whether Committee was going to go with the advocate’s recommendation or with the input from the public?

The Chairperson suggested the point should be flagged as ‘not agreed’.

Mr Mbuyane suggested that a way could be found if the advocate provided clarity.

Adv van der Merwe stated that the recommendation was not to include the Canadian wording, which included 30 days as SA did not have the infrastructure that Canada had. She also recommended a return to the current period of six months because SA had other legislation already in place that required broadcasters to retain copies of their broadcasts for six months. In addition, there were issues of practicality and cost implications. Hence, she suggested a return to the wording before the latest advertisement.

Clause by clause presentation cont.
Section 12B(1)(d) – this paragraph related to adding the name of the author “if it appears on the work”.
Already agreed to by the Committee.

Section 12B(1)(e) – The amendment was intended to provide some leeway and require the name of the author only “in so far as practicable” but the Copyright Act already has the exception and does not limit naming requirements to “in so far as practicable”.
Recommendation: Delete “in so far as practicable”.

Section 12B(1)(e)(i) – delete (i) because it already appears in the Bill in section 12A.
Already agreed by the Committee.

Section 12B(1)(e (ii) and (iii) speaks to the providing of current information. The Berne Convention uses only “extent justified by the information purpose”.   It was not necessary to add fair practice because the test should be aligned to the Berne Convention wording, i.e. “to the extent justified by the purpose”.
Recommended: Use only “to the extent justified by the information purpose”. In recognition of the moral rights of the author, the name of the author had to be used, if stated.

12B(1)(f)(ii) – translations
The Berne Convention did not provide for translations but could be brought in under Article 9 – the interpretation of fair practice was exactly what was needed in that clause.
-All three criteria had to be in place for the exception to be allowed and therefore “or” had to be corrected to be “and”.
-Deletion of section A ‘personal copies’ had led to lots of changes being proposed.
No special article in the Berne Convention, but as above.

-Proposed 12A wording be retained and delete ‘being compatible with fair practice’ – that would limit personal copies to adhering to the three-step test.

Section 12C – recommended that the paragraph be removed.

Section 12C , i.e. specific examples. Layout change had been necessary to make the phrase applicable to 12C (a) and (b).
There had been a proposal to add the wording of the three-step test, but fairness criteria had been built in to determine fair use. Adding the wording of the three-step test made it too difficult for the exception to be applied.

Section 12D – there was also a proposal to add the wording of the three-step test but the fairness criteria had been built in to determine fair use. Adding the wording of the three-step test made it too difficult for the exception to be applied.

Section 12D(1)  –no need for ‘fair practice’ or ‘extent justified by purpose’ –
“Practicable” to be used in all subsections but not 12D(8).

Clause 18
Section 19 – gender-neutral drafting throughout.

Section 19D(1) – authorized entity. The intention had been to take out “as may be prescribed” but it was necessary to refer to people prescribed by the Minister.

Section 19D(1) – the brailled book or accessible copy would look different, but the content had to be identical unless, for example, one indicated that it was an abbreviated copy.

Section 19D(2) – consequential amendment.

Section 19D3(a) – consequential amendment.

Section 19D3(b) – treaty language spoke to a defence so it had been necessary to find wording aligned to treaty language but that created the correct explanation of the offence. The public had thought that the words meant that the importer /exporter had to investigate if anyone intended to use the copy incorrectly. That was not the intention: it was only applicable if the importer/exporter had been aware of an intention of incorrect use. The proposed wording did not put an obligation on the side of the importer/exporter to investigate.
Another change was “reason to believe”. The treaty said “reason to know” and that was a more objective test.
Recommendation: change to “reason to know”.

Section 19D(4)(a) - proposed including the name of the author on the accessible format copy.

Section 19D(4)(b) – no need for repetition of the point that it could also be a person who assists one who is disabled.

Gender-neutral drafting:
Clauses 22, 23, 24, 25 – changes in terms of gender-neutral language would be shown on the C list = (amendment list).

Clause 27
New section 5A – “and” changes to “or”.
Sometimes it was not the owner who gave authority in a specific company, therefore “authorised authority” allowed for it to be someone in the company to whom that authority had been delegated.
The contravention was serious, so if it is communicated, even if there was no profit, it would be criminalised. However, there had been an intent to communicate without copyright and the section had to show that.

Section 5B dealt with an offence in terms of TPMCV – the question was whether negligence should be part of the offence. Considering the Cybercrimes Act specifically where only intent constitutes an offence and also looking at offences in general where negligence rarely constitutes an offence, the recommendation was that negligence should not be included as an offence, and so the wording could revert to “believe”. The difference between “reason to believe” and “reason to have known” is related to the difference between negligence or not.
Recommendation: use “reason to believe”.
The fine had been deleted because it appeared in another section.

Section 5C is related to an offence in respect of copyright management information. The verbs in (5C)(a) and (b) had been corrected and was in the singular form. It was also recommended that (5C)(b) should also only constitute an offence where the infringing party knows that it is infringing copyright.

Clause 29
Section 280 – adding “or service” and changing “has reason to believe” to “should reasonably have known” were both consequential amendments.

Clause 31
Section 29C – correction of the subsection numbering and gender-neutral drafting
– already agreed to by the Committee.

Clause 33 – technical amendment (corrected (cH) to read “28P”)
Section 39 was to provide for regulations for disabled people and there was to be no discretion: the Minister must ….
(2) dealt with access for a person with a disability so there was a consequential amendment in which the original (2) became (3).

Clause 35
Gender-neutral drafting.

Clause by Clause discussion of Proposed Performers Protection Amendment Bill (PPAB)
There were very few amendments to the PPAB.

Clause 1
Definition of broadcast – align with CAB and retain “wire”.

Clause 2
Gender-neutral drafting.

Clause 3
Section 3A – the amendment was intended to distinguish between audiovisual work and sound recordings in respect of royalties and equitable remuneration as per the Beijing Treaty. One cannot use royalties for everything as “royalties” does not apply to sound recordings and cannot be used in contracts.
Also gender-neutral drafting.

Clauses 4 and 5 – gender-neutral drafting.

Clause 6 – add “into” (missing word)

Clause 7, 8(e)and 8(f)
Remove reference to Electronic Communications and Transactions Act.
Also, gender-neutral drafting.

Dr Masotja stated that she was in agreement with all points made by Adv van der Merwe in her presentation to the Committee.

The Chairperson stated that she would conclude the deliberations for the day. The Secretariat would prepare a C Bill and a D Bill and submit those to the Committee for consideration.

Consideration of the first draft of the Committee’s oversight visit report
The Committee Secretary explained that the Members had received the report on Monday afternoon and only the ANC had submitted concluding remarks. He added that more information might be added to the body of the report to ensure accuracy.

The Chairperson requested the Secretary to read through the proposed concluding remarks as Members had had an opportunity to read the report.

Oversight Report - Concluding remarks (key points noted):
The Committee-
1.welcomed the process implemented by the National Regulator for Compulsory Specifications (NRCS) to resolve the matter of the levy revenue.
2.welcomed the significant progress made in the NRCS ICT modernisation project.
3.noted that the Letters of Authority (LOAs) issued by the NRCS had benefitted from the modernisation process with 92% of LOAs finalised within 120 days.
4.encouraged the NRCS to create sufficient capacity to carry out inspections in workplaces.
5.welcomed the NRCS’s undertaking to implement a Central Regulatory and Workflow System, enhance ICT governance, implement Phase 2 of the Resourcing Planning system and implement the Customer Contact Solution.
6. appreciated the comprehensive NRCS programme of community engagement.
7. noted the need to address unfunded mandates regarding processed meats and the need for regulations and standards.
8. welcomed progress made by the SA Bureau of Standards (SABS) since being placed under administration.
9. appreciated the success of the sales and marketing strategy of SABS and its contribution to revenue.
10.welcomed the launch of the local content grading by SABS to assist with the localisation policy.
11. acknowledged the recent capital expenditure on the SABS Groenkloof campus but noted the financial constraints that prevented the replacement of ageing pipelines.
12. applauded the use of alternative funding models and the replacement of laboratories.
13. expressed concern about the ongoing theft of electricity cables off-campus as it affected SABS negatively.
14. encouraged SABS to explore re-routing, use of ESKOM cables, and the use of alternative energy options to ensure a continuous supply of power and to reduce its electricity bill.
15. noted that SABS could not insure its facilities without a CEO and urged the appointment process of the board and CEO to begin.
16. welcomed the improvement in labour relations in SABS and to continue consulting Labour.
17. welcomed NRCS and SABS joint management meetings to foster collaboration and cooperation.
18 expressed concern at the slow progress in the development of the Nkomazi Special Economic Zone (SEZ).
19 noted there was no clear plan outlining cost and timeframes for SEZs and noted the need to attract SEZ investors.
20 was concerned about the building of SEZs on communal land given the uncertainty about the status of such land tenure.
21. welcomed the support given to Industrial Parks by the IDC as it created rural employment.
22. expressed concern about the Mpumalanga Economic Growth Agency (MEGA) as it lacked management and human resources capacity as seen at Ekandustria Park and the lack of financial resources to maintain the Park.
22. expressed concern about the debt owed to Tshwane Municipality for bulk electricity supply to Ekandustria Park and encouraged a partnership between MEGA and Tshwane Municipality to deal with electricity issues.
23.  noted the unresolved ownership issue of Ekandustria Park and encouraged collaboration between Tshwane Municipality and the MEGA to support operations of the IP.
24. expressed a need for the ownership of the Ekandustria Park had to be resolved. Currently owned by Mpumalanga Economic Growth Agency. Concerned about the movement of Bronkhorstspruit from Mpumalanga to Gauteng following demarcation. (NB issue of demarcation was outside the mandate of the Committee but ownership across two provinces had to be resolved.)
25. noted the proposal by MEGA to develop public-private partnerships and to attract technical know-how to revitalise the Ekandustria Park.
26. expressed concern about planned and unplanned maintenance stoppages at Eskom’s Tutuka Power Station and the impact on the sustainability of the small youth-owned business, Mixcorp, that supplied coal to Tutuka and could not service its debt with IDC and retain employees.
27. emphasised the need for collaboration between Departments and their entities to ensure effective implementation of inter-governmental policies to support of the development of the industrial base and transformation of the economy.
28. urged the dtic and DFIs to offer non-financial support to black industrialists in navigating challenges emanating from structural aspects of the economy.
29. acknowledged the benefits of the relationship of the dtic with the Department of Mineral Resources and Energy and the Mining Charter in relation to the safety equipment required at mines that created employment opportunities.
30.commended the addition of the primary agricultural sector to the priority sector in the Industrial Development Corporation (IDC) as IDC-private partnerships would be a tremendous help to emerging black farmers. The agricultural sector could increase job opportunities.
31. welcomed the support offered by the Support Programme for Industrial Innovation (SPII) for technological developments provided to enterprises and the opportunities it provided for transformation.

The Secretary stated that it was the first draft and parties were welcome to add concluding remarks or to suggest amendments. He proposed that parties be requested to submit additional points by Friday, 27 May 2022, as the report would be formally considered the following Tuesday.

Closing remarks
The Chairperson stated that the Committee would not meet on Friday 27 May 2022 in order to give the Secretariat, dtic and OCLS time to prepare the C and D Bills. The Committee would meet the following Tuesday, 31 May 2022.

The meeting was adjourned.