Copyright & Performers’ Protection Amendment Bills: DTIC response to submissions, with Minister

Meeting report

Opening remarks
The Chairperson presented the agenda for two sessions for the day and began immediately with the response to the remitted Bills by the Department of Trade and Industry (dtic).

Presentation by the Minister of Trade, Industry and Competition on the Remitted Bills
Minister Ebrahim Patel explained that the two Bills, the Copyright Amendment Bill and the Performers’ Protection Bill, had been remitted to Parliament. The matters were quite complex but the comments of the Department should assist Members to deal with the issues.

The Minister presented a history of the development of the Bills, explaining that given the Presidency’s concerns about the constitutionality of some points in the two Bills, the President had sent an eleven-page letter to Parliament in that regard. The President did not query the policies and principles but indicated the constitutionality issues that Parliament would have to address:
-Incorrect Tagging
-Retrospective and arbitrary deprivations of property
-Impermissible delegation of legislative power to the Minister
-Public participation in fair-use clause
-Copyright exceptions
-International Treaty implications.

At a meeting following receipt of the President’s six concerns, Parliament’s legal advisor had presented the points raised by the President to the Committee and the Portfolio Committee had, at that meeting, decided to remove three points raised by the President and to address the additional three points through public hearings.

Minister Patel explained that in dealing with the submissions made by 91 organisations/individuals and the 33 representations made by stakeholders made in the Parliamentary public hearings of 11 and 12 August 2021, he had set up an advisory Committee made up of Dr Tobias Schonwetter, an Associate Professor and the Director of the Intellectual Property Unit at the University of Cape Town's Law faculty; Associate Professor Malebakeng Forere from the School of Law at the Witwatersrand University and Judge Dennis Davis, a respected jurist with experience on matters of copyright. The intention was to get expert opinion on the submissions.

The Minister presented four considerations that had to be addressed by Parliament:
-concerns regarding the lack of an opportunity for the public to comment on the fair-use provisions that were changed during Committee stages, without public hearings.
- concerns regarding constitutionality of the copyright exceptions and whether it agrees with those representations that address that concern, amending the text of the Bills, if necessary.
 -concerns raised regarding breaches with obligations in Treaties that SA is bound by and determine whether any of them require amendment of the text of the Bills.
- where representations addressed policy choices made in the Bills that did not raise constitutional concerns in line with the President’s remittal, or simply sought to improve the wording, the National Assembly was unable to address those concerns in the present process.

The Minister addressed the issue of public participation in consideration of the fair use doctrine in detail. Fair use limited exclusive use of created works. The draft Bill used the term ‘fair use’ but provided a closed list of instances. The previous Committee had decided to change the term in the draft Bill from “for the following purposes” to “such as the following purposes” and it was that change which the President felt was far-reaching and where there should have been further consultation with the public. The Department and Committee had not believed that the changes required further consultation, but certain stakeholders believed that the changes were material. The heart of the President’s concerns related not to the content per se, or to consultation in general, but to the adequacy of public consultation on the changes made by the Committee during the process of reviewing the Bill and pertaining to the revisions in the fair use clause. The Committee had now given the public the opportunity to comment.

The Minister noted that the Copyright Amendment Bill sought to increase the flexible application of fair use, also in light of rapid technological change, which might otherwise necessitate frequent updating in the future. There was also a real risk of foregoing a policy-making opportunity if one accepted some of the unsubstantiated claims.

The Minister addressed copyright exceptions and international treaty implications in specific detail. He asked whether “fair use” was constitutionally defensible and determined that it was. He asked whether an open list of exceptions was constitutionally acceptable and suggested that it was. He stressed that the Department did not recommend changes to the overall approach to the Bills and proposed that there be an opportunity for the Department to share its views with Parliament’s legal advisors.

The Minister noted that some helpful comments from the public participation process had not been included because those comments and recommendations fell outside of the remittal process which did not permit a fresh look at the Bills.

(See Presentation)

Discussion
The Chairperson thanked the Minister for his presentation and suggested that the Members might consider how the Committee would manage the process and what Members considered the areas of agreement and where the Committee might require presentations by the Department and the parliamentary legal advisor before addressing the President’s reservations. He suggested that the parliamentary legal team might wish to advise the Committee on the process to take the matter forward.

Mr D Macpherson (DA) understood that the Minister had inherited a bad Bill and that the Committee was trying to make sense of a scrambled egg. History was important and he and his party, and many other people, had warned the Department that it was a bad Bill. A Bill had to be grounded in good policy and the policy on which the Bill was based was bad; it was a narrow policy position that was backed by big business and did not protect SA’s history or its creators. Thankfully either the President or someone in the presidency had noted the weaknesses in the Bills. What amazed him was that he was experiencing a groundhog day in the Committee as the Department had again taken the position that it was right and everyone else was wrong. The Bill offered less protection and less certainty than the current Act. The Department was taking bad legal advice.

He said that the Committee was looking only at the referred points, but that did not correct the basic principles and objectives that were not sound. Enacting the Bills would have consequences from international partners and investors, particularly the US. God be with us!

Mr Z Burns-Ncamashe (ANC) welcomed the presentation and commended the Minister for steering the ship in the right direction. The President, by invoking section 79(1), had realised that as the head of government and the leader of the movement which was the leader of society, that it was important to listen to all the voices of the people. He believed that the current path would lead the Committee to legislation of which the people, and particularly the relevant sector, could be proud. He stated that SA citizens would be proud of having been afforded the opportunity to express their views. In the past, legislation was passed in the interests of a minority government. Now the marginalised and exploited had to be included, as impressed upon by the President, and the dignity of people and artists had to be maintained. The necessary protections had to be taken into account.

Ms Y Yako (EFF) agreed with Mr Macpherson that the Bill was intended to protect creatives and ensure that they benefitted from their work, but she did not think that would happen with the Bill as it stood. The rhetoric was about benefitting performers but she did not wish to participate in a process of rubber stamping something that would not benefit performers and she did not want to be part of a process that lied about its intentions and outcomes. Could the Minister indicate who his advisors were and what advice he had been given? The Bill was not honest and that put the Committee on a bad footing. Maybe the Committee needed to put itself in a room and thrash it out.

Mr M Cuthbert (DA) referred to the narrative about public participation. He stated that certain academics who were aligned to certain organisations had been given the opportunity to train the Committee and then given the opportunity to make a presentation to the Committee. That suggested that the outcome had been stitched up before the process began. It did not seem to have been a fair process of public comment. He wanted it referred to the state law advisor as he did not want paid advisors to hijack the legislative process. He was not there to rubberstamp something that had been created in another country. He had to be responsible to his local constituency.

Ms J Hermans (ANC) agreed that many discussions had been held but noted that more would be held and thereafter, as the Bills had been re-tagged as section 76 Bills, they would go to the National Council of Provinces (NCOP) for further public participation. The issue was around fair use and she looked forward to the Minister’s response in that regard. It was disingenuous to say that the Bill would disadvantage creatives. The Committee should give itself time to consider the Bill. She was particularly interested to hear the Minister’s views on fair use.

The Minister responded that the Bills had a long history that went back beyond the current Parliament. What was the process? It was easy to recall what it was not about, but neither the Department nor the Committee had a free hand. Ordinarily, the President would sign the Bill; he did not have the same power as did the President in the USA to veto a Bill. The President had a particular check and balance and that was the constitutional one which he had invoked in respect of various clauses. The policy choices already taken by Parliament when it had adopted the Bill had to be accepted. The dtic officials and he as the Cabinet Member could not second guess the previous Parliament. They could review process issues and advise Parliament following the public participation, but they were not making a new law. Only the President’s constitutional concerns could be addressed. After the current process, the President had to send the Bills to the Constitutional Court for review or he had to sign the Bill. The Portfolio Committee had solely asked the Department to advise on the President’s concerns and not on the Bill as a whole.

The Minister addressed what the Bills sought to achieve. The President had referred to its noble intentions. The Copyright Amendment Act had a development objective. He noted that SA artists sold their work but because of the imbalance between the artists and the large organisations, they did not have much negotiating power and often a work made a great deal of money for the copyright holder after the artist had received a pittance. He referred to a campaign to shame an organisation into paying something to the original creator when a work had made huge sums of money for the organisation while the creator was destitute. It was that point that the Bill attempted to address. Artists should not be hamstrung by the terms that they negotiated at a particular point in the process. Artists were passionate about that point not being diluted. The problem was that the retrospectivity clause, while morally correct, raised constitutional issues because the Constitution was based on clarity of order. The thrust of the Bill had been to protect artists retrospectively but also to be progressive or forward-looking. The proposed revision was to omit the retrospective clause but to address the current and future instances in a way that took into account the Constitution and international treaties. The Department was considering ways of addressing that issue. He noted that the retrospective clause had originally been decided upon by the Committee against the advice of Department.

The second issue to address was the right of the copyright holder versus the rights of the public, such as the right of someone to quote something said in Parliament without getting permission to quote that person. The law was looking at setting the balance between how much one could use a work and where that right should cease. South Africa had used the fair dealing approach but it was argued that fair use gave the public more rights to use works. There had been complaints about the fair use principle by both small players and big businesses and also support by both big corporations and small players. Businesses in the field of dissemination wanted wide access and those that made their money from rights to the works believed that fair use gave away too much.

As Mr Macpherson had said, the Minister had inherited the Bills and the first thing he had done was to look at the international scenario because he had to be sure that the country did not open itself up to claims. SA had taken a more developmental and less restrictive approach for the future. The Department had concluded that it was constitutionally valid to take the fair use approach with a specified list from which the courts would develop jurisprudence over a period of time. That was what happened in a democracy. The developmental objectives were clear. It was a policy choice of Parliament to protect artists and that was defensible. The retrospective clause, however, had not been defensible and the Committee had decided to remove that area.

The Minister referred to the allegations that the Department was dismissive of all positions other than its own. He pointed out that Parliament had amended the Department’s original Bill. Following the President’s remittance of the Bills, the Department and the Committee had agreed that it should be a section 76 Bill and not a section 75 Bill. The Department and the Committee had agreed to remove the retrospectivity clause. The unfettered role to be played by the Minister had been removed. The need for further consultation was agreed to. In view of copyright exceptions, the Committee had invited the public to comment. He and the Department had identified nine areas for re-consideration in respect of the copyright exceptions, some of which were minor amendments to give precision and clarity. The Minister noted that, on the contrary, quite a range of changes had been accepted.

Regarding the international treaties, the Minister had been advised to tighten up 12 areas to align language used in the Bills with the language used in international treaties. He believed that the President’s observations had not been ignored, but attention had been paid to those concerns and the constitutional issues had been addressed.

The Minister noted that Mr Burns-Ncamashe’s reference to the developmental objectives of the Bills was important and those objectives should not be forgotten. He told Ms Yako that he had referred to his advisors and to their advice in the document that he had supplied to Members. He had also received advice from officials. He could not respond to Mr Cuthbert about who the Committee had invited to train the Committee. However, there were vested interests across the board on both sides of the debate. The Department had focused on public interest considerations but, at the end of the day, the Committee had to determine what to consider. Considering the entire process, few pieces of legislation had had more public participation than the two Bills under consideration.

The Chairperson noted that the Committee should consider what should be done. Looking at the presidential recommendations, the Committee should determine the way forward, with the advice of the parliamentary legal team.

Mr Cuthbert requested an explanation why the team that trained the Committee had been the same people who had made public submissions.

The Secretary explained that when the Bills were remitted, it was decided to train the Members on Intellectual Property as most of the new Members were not well-versed in the issues. He had advised that the same trainers who had trained the previous Committee train the current Committee so that they could understand the original decisions made in respect of the Bill. The trainers had been advised that they were not to make any representation on the merits or demerits of the Bill but to restrict the training to the principles and issues relating to IP.

Adv Charmaine van der Merwe, Senior Legal Advisor, Parliament’s Constitutional and Legal Services Office, confirmed the input given by the Secretary and confirmed that no views on the Bills were presented by the trainers. The training was done by experts who had no loyalty to Parliament, but all members of the public, including those trainers, had the right to make submissions. The Committee could consider what drove a submission but the Committee had to consider all submissions that related to the presidential submission. She was of the opinion that only one comment did not fall into that category but the Bill would go to the NCOP and there could be an Amendment at that level.

Mr Cuthbert still believed that a person’s natural default position would be reflected in the training. Had the trainers been paid for the training?

Mr Macpherson noted that Adv van der Merwe had stressed that the people did not have any loyalty to Parliament, but their loyalty lay with their own organisations and those who funded their grants and research. When one put the same group of people before parliamentarians, one did not have to look far to know what would happen. He found that the process was not acceptable.

The Chairperson said that Mr Cuthbert and Mr Macpherson sounded as if they were not Members of the Committee. He reminded Members that all issues and programmes were put before the Members and they had to engage with the issues at that level. He did not recall any queries or complaints when the programme had been put before the Committee. He now needed clear and open suggestions about how the process be taken forward.

Mr Cuthbert asked whether the trainers had been paid or not.

The Secretary stated that no payment was made to the trainers.

Mr Burns-Ncamashe noted that the processes of the NCOP would provide opportunities to members of the public who wished to engage further with the Bills. He noted that in the course of deliberations, it was important that Members did not cast aspersions on the academics as their loyalty was defined according to the conviction of their academic thesis and it was important for that to be appreciated. It was also important that Members were given the necessary tools to do their work. He was not oblivious to the fact that some academics held views that were not progressive.

The Chairperson noted that the Minister had given extensive input. He asked Mr Cuthbert to provide written feedback on his allegations that people had been paid for the training. He did not want a response in the meeting but asked Mr Cuthbert to explain the context of his allegation to the Secretary in a letter.

The Secretary explained that comments and inputs from the public had been received. The Committee would engage with Adv van der Merwe at the end of the week and then the Committee would continue the process regarding the remitted Bills in the course of the following week.

Adv van der Merwe said that she would meet the Department during the week and on this coming Friday she would take the Committee through the President’s reservations and the response by the public to the various issues. She would advise the Committee where proposed amendments would have to have House approval and/or further public participation as some of the proposals were new points. She suggested that the Committee could consider each clause in the light of the inputs. She noted that in some instances, the Committee might decide that the matter had to be put aside for consideration in a new Bill at a later stage. She promised to take the Members through the process very carefully.

Conclusion by the Minister
Minister Patel noted that the Committee was dealing with complex issues and that decisions would impact on the lives of people. He added that there was a discussion at the World Trade Organisation addressing the possibility of the waiver of intellectual property rights in respect of Covid-19 vaccines and therapeutics. The debate about intellectual property was a very live debate internationally at the current time. At the recent G20 meeting, the most commented matter was the waiver of certain trade-related topics relating to Covid-19. The parallel was not direct but it was helpful to note the parallel.

He assured the Committee that the officials would be available as needed by the Committee. He said that it was impossible to fully satisfy everyone with their varied interests but the Committee needed to find the sweet spot.

Closing remarks
The Chairperson noted that the Committee would adjourn until the afternoon session when the Auditor-General’s Office would make a presentation on its audit of the dtic group. The Committee would reconvene an hour earlier than originally planned.

The meeting was adjourned.