Copyright & Performers’ Protection Amendment remitted Bills: further public hearings day 1

Meeting report

Opening remarks
The Chairperson stated that the public hearings on the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB) were being held to hear oral submissions from those who had already made written submissions to the Committee. Oral submission time was limited to 15 minutes per presenter and 15 minutes for questions, comments, answers and wrapping up. He admitted that time would be very tight.

The Chairperson mentioned that the Committee had attended a workshop on copyright the previous day. The Committee had been joined by the Select Committee on Education and Technology, Sports, Arts and Culture and the Portfolio Committee on Sports, Arts and Culture. Members of the latter Committee were attending the public hearings and might also ask questions of presenters.

The full Committee was in attendance. Over 100 people were online to attend the hearing.

Oral submission by IP Unit Stellenbosch University
Prof Sadulla Karjiker, Anton Mostert Chair of Intellectual Property Law, Faculty of Law, University of Stellenbosch, stated that he had reservations as regards making further submissions to the Portfolio Committee as previously the public comments and submissions were not taken into consideration at all and seemed to be largely an exercise making a show of public engagement with the Bill. He had decided to give the new Portfolio Committee the benefit of the doubt and the opportunity to fulfil its duty. He derided the original draft Bill as a very poorly written Bill and without proper consultation. He concluded that the Bill should be rejected out of hand and the process should start afresh.

(See Presentation)

Discussion
Ms J Hermans (ANC) requested that the Committee adhere to time or it would not have time to hear all submissions.

Mr B Madlingozi (EFF) stated that Prof Karjiker had not added any value. He had simply lambasted the previous Portfolio Committee, ignoring the matter of black people’s intellectual property. One could never forget that the apartheid government had never added value to black people’s culture. The professor had not brought any solutions.

Mr D Macpherson (DA) had housekeeping concerns. He asked how the process had morphed into a joint Portfolio Committee process because the Bill had been referred to the Portfolio Committee on Trade and Industry. How was the Select Committee (actually the Portfolio Committee on Sports, Arts and Culture) involved considering that the Speaker had referred the matter to the Portfolio Committee on Trade and Industry and what was the purpose of that Committee participating? He asked why the chat box was open to the public who were slagging off presenters in the chat box. That was not acceptable and people should be thrown out or the chat box closed.

Mr Macpherson believed that the Committee should be consistent from Day 1 and he was the only Member of the original Committee. There had been a pre-determined outcome even before the original public commentary. He was interested in Prof Karjiker’s views that certain people seemed to be captured by big tech companies. In fact, Mr Macpherson believed elements of racism were embedded in the Bill. Could Prof Karjiker provide anecdotal evidence? He had previously proposed Prof Karjiker as a member of the expert panel but his was not an accepted voice in the current context.

The Chairperson reminded Mr Macpherson that it was he and Mr Mbuyane who had been Members of the previous Committee.

Mr F Mulder (FF+) thanked Prof Karjiker and said that the Committee should not have subjective views, but an objective view on what should be included in the Bill and focus on whether the Act could stand the test of time and comply with the requirements set for the protection of intellectual property. The FF+ was also of the opinion that the Bill should be sent back to the dtic but he fully understood why it was necessary to go through the public hearing process.

Ms Y Yako (EFF) noted that the Portfolio Committee on Trade & Industry was more technical than the PC on Sports, Culture and Arts that would have a more subjective view of the Bill. She suggested that experts of Intellectual Property (IP) should have come to the Committee and explained how it would benefit the artists of SA.

Mr Z Burns-Ncamashe (ANC) said that Prof Karjiker might have made a significant diagnosis of defects within the current Bill but he had not come up with a prognosis or any solutions as to what should be done. He simply indicated the problems. He should provide mechanisms and measures that should be employed to deal with that. He hoped that next speakers would come up with solutions. Prof Karjiker had simply been academic. Presenters had to come up with decision-making solutions for the Committee.

Mr W Thring (ACDP) had a similar opinion to Mr Burns-Ncamashe. He believed that the Committee should welcome different voices but he was looking for proposals for finding the fine balance in the light of the need for such a Bill. Criticisms were necessary, but were there solutions? Other voices were saying that they needed the Bill to be passed urgently but how did the Committee protect the artists without disadvantaging education and research in the country?

The Chairperson stated that there was no time for a response from Prof Karjiker. The questions were on record.

Prof Karjiker concluded that the solution was to have a proper review of the legislation. The statutory advisory body had to be established and it had to review the legislation on a regular basis. Such a shambolic Bill could not be corrected.

Oral Submission by South African Institute for Intellectual Property Law (SAIIPL)
Mr Stephen Hollis, IP lawyer at Adams Law and fellow of SAIIPL, spoke of international treaties and the three-step test. The written submission explained how the Bills suffered from material flaws and could not be resolved with re-wording. The Bill introduced in 2017 was an expropriative Bill which did not improve the position of creative workers. Rule 203 (i.e. restricting the Committee to address only the President’s concerns) applied only to the Bill until the Committee had addressed the President’s concerns. Once it had been re-tagged as section 76, rule 203 no longer applied.

The Bill had not had an impact assessment. A legal assessment from experts was needed for a proper assessment of the legal impact of the Bills. The education exceptions did not reflect any of the education exceptions in international treaties. Only Canada had an exception for education and that had caused enormous personal loss to writers. The Bill was linked to political consideration and implied that any constitutional flaws could be hidden by section 36 of the Constitution. He added that section 45 contravened World Intellectual Property Organization (WIPO). Mr Hollis believed that “user’s right” was not part of SA law.

(See Presentation)

Discussion
Ms B Dlulane (ANC) was pleased with the oral submission in that it was very specific and showed exactly what had to be done.

Mr Burns-Ncamashe said that he had heard the different doctrines that the experts came up with but he emphasised that he would be more comfortable if the presenters could zoom into specific areas that the Portfolio Committee should address. Mr Hollis came close to doing that, especially where he referred to specific constitutional clauses. He appreciated the options he had presented. At the end of the day, the Bill had to pass constitutional muster.

Mr Mulder thanked Mr Hollis for a well-founded submission and supported the recommendation that the National Assembly (NA) should engage with constitutional lawyers and that the Bill be referred back to dtic.

Mr M Cuthbert (DA) noted Mr Hollis’ contention of what the academics had presented in the workshop the previous day which suggested that Committee Members had been directed in a particular way to achieve a particular outcome and so he asked how presenters at the workshop had been chosen. What considerations were taken into account when selecting presenters? Had that opportunity been opened up to others? If the Committee was being canvassed by particular people who had argued their positions overseas as well as locally, that skewed the process. Did Mr Hollis believe that the Bill should be scrapped entirely and a full review should take place or should only specific sections be addressed.

Mr B Madlingozi (EFF) concurred that with Mr Burns-Ncamashe that academic speakers should come up with solutions instead of lambasting what had happened. It was not right for the speakers to throw the Bill away.

Mr Hollis stated that all constitutional concerns were presented in detail in the written submission and he encouraged Committee Members to look at it. There were a number of potential legal solutions. A re-drafting was one option. The Institute would be prepared to engage with the Portfolio Committee. There was a way forward but an independent legal analysis and an impact assessment was essential. The Committee was asking the public to provide the research that the dtic had not provided.

It was important that there was an analysis of each new provision in terms of legal and constitutional issues as well as international treaties. An economic assessment was necessary because it was a complex matter.
One could not transfer conditions for one form of artistic expression to another form of artistic expression without causing massive harm to other creative industries. The legislation would impact not only on the local industries: SA was competing in a highly competitive global market place. He pointed out that international film makers and related industries that create numerous opportunities and jobs for SA creative artists, looked at the underlying legislation addressing the creative framework in the country before deciding to work in SA. The legislation impacted indiscriminately across all creative sectors.

A particularly nasty provision was the contract override in Section 39B which severely impacted on the right to trade in the creative sector, without a policy objective. While some of those rights existed in other jurisdictions, they applied very specifically to particular instances and not indiscriminately across all works and copyright industries. In SA, those provisions would have a massive impact on the entire industry.

The way forward was to identify which provisions need to be amended in terms of international treaties and the Constitution. It was highly technical complex work, hence the recommendation that senior legal counsel be engaged to prepare such legal opinion, and yet the call for public comment was asking people to give that opinion on compliance with the Constitution and international treaties. It was very difficult for members of the public and business organisations to give informed technical opinion.

There were progressive solutions. It was possible to uncouple the Performers’ Protection Amendment Bill and to work on that one fairly quickly. It required some work by the right experts insofar as the unification of rights of the producers of audio-visual works, but it could be done. It was also possible to include only certain clauses in a stripped down Copyright Amendment Bill. Digital rights, the Marrakesh compliance and other rights that were not contentious. That approach had been taken in the National Credit Amendment Bill.

The Institute was happy to engage with the Committee to discuss legal solutions to get the Bills back on track and headed in the right direction.

Committee Business
The Secretary addressed housekeeping issues, including the use of the chat box. Adv Charmaine van der Merwe would address the question of attendance by Members of other Committees.

Adv Charmaine van der Merwe, Senior Legal Advisor, Office of Constitutional and Legal Services, Parliament, informed Members of the parliamentary rules that allowed for Members of different Committees and different Houses to sit together for purposes of discussing a Bill. It led to members of a different House being better prepared when faced with the Bill. However, Rule 286 which dealt with an enquiry into a Bill, allowed for conferral at an informal stage. Formal deliberation and voting could only be conducted by the Committee responsible for the Bill.

Oral Submission by Prof Beiter, North West University
Klaus Beiter, Associate Professor at North West University, said that if the Bill wanted to remunerate authors, there were many ways, including legislating levies on the use of created material. Education could not be the sole support of authors or publishers. He reviewed the Bill in the light of the relevant international copyright treaties and also presented the “Other Side” of International Law, which included International Human Rights Law, the Right to Education, the Rights to Culture and Science. He suggested the Copyright Act be reviewed in order to introduce limitations in accordance with the Berne Convention three-step test (article 9(2)) and with the fair use provision and to clarify clauses as necessary.

(See Presentation)

Discussion
Mr S Mbuyane (ANC) asked about the 60% royalties leaving the country. What royalties were coming into the country? It seemed that royalties were going out and not coming in.

Mr Madlingozi stated that SA was unique and nothing like the rest of the world. The country’s history was unique and laws were necessary to make SA work for South Africans. The international laws were not helping SAs. It was necessary to have laws that solely helped SAs.

Mr Thring referred to Prof Beiter’s advocacy of the use of the three-step test and retention of the words ‘such as”. The three-step test had to mirror international human rights. Did Prof Beiter agree that the Bill met the three-step test?

Prof Beiter referred to Martin Senftleben the leading copyright expertise, whose views he shared, who said that the international 3-step test was fully equivalent to the fair use provision. The same reasoning could be applied. The only difference was that in fair use, one could look to practices in various countries. The US had applied the fair use provision since its origin and had never been challenged because a challenge would never succeed. In a recent case at the World Trade Organisation (WTO) involving plain packaging of cigarettes in Australia, the country had referred to the objectives of Article 7 of TRIPS (Trade-Related Aspects of Intellectual Property Rights) which dealt with human rights and, consequently, Australia had been permitted to retain plain packaging to protect public health.

His recommendation was that people had been working on the Bill for a long time and it should be retained. Fair dealing and fair use for education should be retained. Authors should earn a reward for their work and levies should be considered to address that concern, as in international practice, and copyright contracts should be considered so that international companies like Google, etc. paid their fair share.

Mr Mbuyane repeated his question.

Prof Beiter stated that he was relying on the Farlam Report to support the amounts collected in royalties. He referred to the UK Report, the Commission on IP, which asserted that the collection model was difficult and costly and money seemed to leave developing countries for developed countries. He did not know how much money came into the country, although he had been told that a lot of authors benefited from the DALRO collections. The imposition of levies was a better option than collecting royalties.

Committee business
Mr Macpherson asked how and where the decision was taken by the Committee to expand participation in the process. He asked the Chairperson to explain where the decision had been taken.

The Secretary referred to National Assembly Rule 158(b) which stated that the Chairperson may act on behalf of the Committee if it was not practical for the Committee to meet, but he had to report that decision to the Committee. The Chairperson had been within his rights to invite another Committee but he had to inform Members at the next meeting. The Secretary apologised to the Chairperson for neglecting to remind him to inform the Committee of that decision.

The Chairperson noted that in recent oversight visits, as well as in the copyright workshop, there had been engagement with the NCOP Select Committee and the Portfolio Committee on Sports, Arts and Culture. He stated that Mr Madlingozi should feel like a Member of the Committee.

Mr Macpherson noted that the Chairperson had exercised his rights, but to say it was impractical for the Committee to meet was insulting as the Committee had met the previous week and the day before. It was taking the Committee for fools.

The Chairperson said that a discussion should be taken in an appropriate meeting. He had, on many occasions, taken the decision that others should join the Committee, such as when local government had been invited to join the Committee for oversight visits and so forth.

Oral submission by a Joint Academic Opinion
Prof Malebakeng Forere, an Associate Professor of Law at the School of Law of the University of the Witwatersrand, specialising in Foreign Investment Law and Intellectual Property Law represented the Joint Academic Opinion, a group of nine scholars, four of whom also presented in their own right or in another capacity. Prof Sean Fiil-Flynn and Dr Andrew Rens added their voices to the oral submission.

Prof Forere did not believe that some presenters had addressed the Bill and was quite sure that if other academics had to rewrite the Bill, it would look exactly the same. She noted that the South African Institute for Intellectual Property Law agreed with the Joint Academic Opinion. The Bill could essentially be interpreted and implemented in a constitutional manner but the academics recommended certain technical amendments. The current legislation was unconstitutional but the Bill would balance IP with the Bill of Human Rights, also enabling the essential element of translation into all SA languages. She suggested including the word “fair” before the provision in sections 7A and 8A.

Prof Sean Flynn focussed on how fair use differed and how the use of “such as” allowed exceptions as they gained usage over time. For example, video recording was not lawful in SA, but the Bill would make that lawful
.
Dr Rens reported on the importance of the CAB in relation to the 4th Industrial Revolution.

(See Presentation)

Discussion
Mr Madlingozi agreed that the Bill was all about protection and the hearing was to come up with solutions. The Department of Education in South Africa had been guilty of infringement of copyright when using someone else’s art in an examination in 1986. How could the unauthorised use of someone else’s art be prevented? Were the Bills intended to protect SA artists or just to follow what was being done internationally?

Mr Macpherson asked if any of the academics/researchers should provide a disclosure. Had any of them or their companies been funded by any international companies, such as Google?

The Chairperson and Mr Macpherson had a disagreement over whether the Chairperson was interrupting Mr Macpherson’s questioning.

Mr Macpherson asked about fair use. The academics spoke passionately about it and whether that was what the Bill turned on. They had referenced other countries. What concrete proof could they give that fair use would work under SA law? How would those court cases turn out?

Mr Burns-Ncamashe asked Prof Ferraro about her view that the Bill, in its current form, would be replicated by any expert asked to redraft the Bill. It appeared the Bill could not be in any other form. If there were any differing views, he would like to know the specifics. Although Members of Parliament were public representatives and constitutionally obliged to create the platform for public comment, they were not oblivious to the reality of standpoints that characterised schools of thought and that there would be other schools of thought. They were well aware of other views.

He reminded everyone that the purpose of the exercise was to enable those who had been disadvantaged to now enjoy the benefit of being included in the current legislative dispensation which protected their rights and regulated the conduct of those who had always been culprits of exploiting them. The purpose was also to ensure equitable access to knowledge in ways that would not prejudice those with authorship/ownership. It would not work if there were gymnastics of pandering. The Committee wanted practical facts that would lead the Committee to the correct decision-making. Presenters had to be direct and speak to how the Bill could pass constitutional muster.

Ms Yako said that the oral submission had been quite technical. What was the difference between “fair dealing” and “fair use” and how should the Committee change it to fair use, and then what would that mean in comparison to what “fair dealing” currently meant?

Mr Thring noted that Prof Breiter had provided a mathematical formula for copyright: copyright equals remuneration plus access. How would the Bill provide fair remuneration to authors and artists while at the same time providing fair use to education, research and the like? What would the possible overlaps of the other sectors be? Had the Joint Academic Opinion considered that impact and, if so, what were the implications?

Ms Dlulane hoped that Members of the Portfolio Committee on Sports, Arts and Culture were accepted in the forum. She had listened to Prof Breiter who had raised fundamental questions of Human Rights, education, translation and language. The academics had raised the reason for the Committees being there, the President’s reservations. She noted that they were getting to address the reservations, section by section. She saw that the Bill would see light at the end of the tunnel so she was pleased to be part of the meeting.

Mr Cuthbert reminded Members that the President had raised issue of public participation and he had no doubt academics were stakeholders but looking at the first page of the submission (where names of the academics were listed), it seemed that academics who had already participated in the workshop with the Committee, were participating again. Surely that made some more equal than others and gave them a greater opportunity than the ordinary stakeholder to steer the narrative. The Committee might encounter a few procedural and legal obstacles down the line. He had asked how people had been chosen but had not been answered.

He said it seemed as if there was some sort of lobbying was going on in the online chat box Stakeholders engaged in such lobbying should be asked to leave or removed from the platform. It was putting the meeting in disarray.

Mr Cuthbert objected to the treatment of his colleague, Mr Macpherson. It was not the first time. The Chairperson continually interrupted when Members of the opposition wished to make an input, trying to decode what the Member was saying. The Members of the opposition had a right to express themselves and should he have a problem he could submit a complaint to the Speaker for review. As Chairperson he should act neutrally; he was not fulfilling his duty according to standing orders of Parliament and the Constitution. He should apologise for his behaviour. Such clear bias did not create a good impression with the public.

The Chairperson pointed out that he had not interrupted Mr Cuthbert.

Prof Forere said that rights were not affected by fair use. It did not affect existing rights, nor add new ones. When they spoke of remuneration, they were talking of economic rights that people already had. It gave royalty rights to artists and musicians but it also allowed them to use existing works to develop further. It did not affect their rights.

People spoke of the fair use clause as if they had never seen it. Everyone should look at it together and they would see that it meant literally the same thing as fair dealing. How would private use or private study or personal use affect the remuneration of the author and how would criticism affect the remuneration? The exceptions were already included in section 12.

Dr Rens said he had explained how SA courts addressed multi-factor analyses. He had no evidence of courts, or even a practising lawyer, criticising SA courts for a multi-factor analysis judgement. He had enormous confidence in SA courts. In addition, the Bill allowed for a Copyright Tribunal which would then create judges who were specialists in copyright and render far more expertise than was currently available, as had happened with expertise on competition law in the Competition Tribunal. That could not happen if the Bill was not passed. He had included the section on infringement as an example of how courts had already been engaged in copyright balancing acts, even under the current legislation.

The only thing in front of the Committee was the President’s concerns and the Joint Academic Opinion spoke to those issues. Those concerns did not include constitutional concerns and he was of the opinion that the Bill should never have been sent back and should be passed. He admitted that they had suggested a few tweaks but they were not absolutely necessary. The Bill could pass as it stood.

Ms Yako believed that Prof Forere’s response was condescending towards her in light of the fact that she had read the Bill and asking why the wording should be changed was a fair question. Were they benchmarking against international standards, or future international standards? To say that Members should have read the Bill did not sit well when the Professor was trying to make the Members of the Committee accept the opinion of her group. Members spoke from a policy-making perspective. Members did not have the same standard of education or understanding as the experts. It should be done better.

Mr Macpherson had not heard a response to his question about funding for research and whether any of that money had come from big corporations like Google.

Prof Forere apologised as she and Ms Yako had misunderstood each other. It was up to the Committee whether to use “such as” or not. However, but if “such as” were not used, the Committee could be convening frequently to embark on the expensive exercise of law making as technology changed so quickly.

Regarding funding, she was not funded by anyone. She undertook independent research. She was not aware of anyone in the group obtaining funding for research.

Mr Mbuyane did not understand why anyone should declare their funding. The requirement had not been applied to everyone and could not be asked of individual presenters.

Oral submission by Library and Information Association of South Africa (LIASA)
Ms Nikki  Crowster, President of LIASA, made the oral submission. She focused on the mandate of libraries and archives to meet SA’s information needs. She spoke extensively that the 40-year old Act was a serious barrier in many respects. UCT had lost 70 000 books and artefacts as the university had been waiting for permission to digitise the material.

The Bill was progressive, forward-looking, and empowered libraries and archives to carry out their statutory mandates effectively in the digital world. The Bill aligned SA’s law with other progressive copyright regimes and international treaties. It introduced limitations and exceptions for libraries and archives, which many developed countries had enjoyed for years. It went a long way towards redressing omissions, restrictions and imbalances in current copyright law and should be implemented immediately.

(See Presentation)

Discussion
Mr Madlingozi believed that African tradition should be the starting point for the legislation instead of SA wanting to be on par with the rest of the world. Africans should escape from the enslavement of the past by using the past to open up the future. They might be guilty of viewing their own culture as inferior to the rest of the world. African creativity was mainly based on oral tradition. Libraries should be finding that ancient tradition. Had LIASA considered finding oral stories?

Ms Crowster said that LIASA, library services and galleries agreed fully with Mr Madlingozi and that was why the Association had pressed for the passing of the Bill. The importance of digitalising oral creativity was part of her submission. The narrative of history in SA was one given to the people and not one owned by the people. There were many narratives in terms of exposition of one’s culture as part of being a citizen of this country and librarians dedicated their lives to a collection of such material. Perhaps the terminology was confusing. Librarians spoke of archives which included special collections of people of note, including personal records of individuals, and she was referring to indigenous people. The frame of reference was telling one’s own narrative and not accepting one presented by the oppressor. She would be happy to continue that conversation.

The Chairperson had communication challenges and Ms Hermans acted very briefly as Chairperson until he returned within moments

Oral Submission by Scholarly Horizon
Ms Denise Nicholls, Scholarly Communications and Copyright Consultant, made the submission. She noted the datedness of the current Act and vehemently defended the Bill that had been drafted. She pointed out that everyone who made culture or participated in the innovation economy relied on fair use routinely, whether they recognised it or not. She raised many issues, including the cost of knowledge in SA. The history of South Africa made it a national imperative to build an informed nation, remove inequalities, create self-reliance amongst individuals through access to information and technologies, and to build and sustain vibrant communities. 

She ended with a plea to Parliament to prioritise the needs of South Africans.

(See Presentation)

Discussion
Mr Madlingozi agreed with Ms Nicholson in respect of collective societies not being wholly innocent. Having numerous collection societies opened up a window of corruption. What was her view of having more than one collecting society?

Mr Burns-Ncamashe complimented Ms Nicholson’s balanced submission which was critical and had come up with practical solutions. He hoped that other presenters could do similarly.

Adv David du Plessis, representing Scholarly Horizons, responded to the question. The issue was not the number of collecting societies but that each one should be viable and should represent a viable repertoire of works. One could not limit the number of collecting societies as everyone should be free to choose who they wished to associate with in a collecting society. There was more than collecting society per right in SA. He doubted that it would be appropriate to have one collecting society for all rights. Users and creators of music might choose to join separate collecting society. Universally many collecting societies banded together with a common back office.

Ms Nicholson added that the key thing in any collecting society was transparency, which was not always the case.

Oral Submission by South African Democratic Teachers Union (SADTU)
Ms Faseega Solomon, Vice Chairperson Responsible for Education, stated that she was representing both teachers and learners who felt the impact of the long overdue Bill. Her focus was on the negative impact of the current legislation.

She expressed concern that ANC MPs had not voted for the Bill when they had had the opportunity to do so and that suggested that they did not genuinely support the sharing of information in education. SADTU believed that the Bill should be passed by Parliament in its current form and signed by the President.

(See Presentation)

No questions were posed by Members of the Committee.

15 minute lunch break.

Publishers' Association of South Africa (PASA)
Mr Brian Wafawarowa, Chairperson, PASA, having presented his credentials, stated PASA supported the amendment of the outdated Copyright Act, particularly the aim to: “…protect the economic interests of authors and creators of work against infringement … It is also envisaged that the proposed legislation will reward and incentivise authors of knowledge and art.”

He said the using broad exceptions & fair use to “enhance access” was a blunt tool with potential unintended consequences. He presented the current situation which differed from the position presented by those who used extremes as their examples. The core education materials were locally produced according to curriculum requirements and were written by local authors, developed by local professionals, printed by local companies and royalties were paid to local authors. In higher education, more than 70% of content was produced locally. An unintended consequence of the Bill could be huge income and job losses to local authors and local jobs. Licensing of digital models was the way forward.

Dr Gcina Mhlophe, creator, writer, musician, publisher and head of a literacy campaign explained that it was a universal practice for profits to be split with 90% going to publishers and 10% to creators. Would the Bill resolve that unfairness? Did fair use mean that the writer provided free material? Would the Bill address the tardiness of publishers in paying creatives?

Ms Ruth Delannoie, SMME owner, presented the impact of CAB on her business.

Mr Carlo Lavizzari, legal advisor to PASA, stated that fair use was “colonisation” by USA. Fair use would ensure that zero percent of zero royalties would leave the country but that still would not leave royalties for local creatives.

Mr Wafawarowa said that it would be ironic if the transformation of the sector to include local material and SMMEs was destroyed by the Bill. He did not want to see SA publishers begging international companies for information. Huge strides had been made since the1980s and the Bill would create a reversal of that process.

(See Presentation)

Discussion
Mr Madlingozi noted that PASA had also referred to the potential corruption of collecting societies. He appealed to teachers not to teach European literature. He encouraged Dr Mhlophe to continue writing.

Mr Burns-Ncamashe  said he was left with one question after Brian Wafawarowa’s submission. It was a tragedy that books written at the beginning of 20th century were no longer available in publication, only the abridged version. Zemk Inkomo Magwalandini by W B Rubusana was one such example. Books were physically held by companies in Europe and he was not sure about the copyright of those books of the early 1900s. That was the heritage of the African people.  He was not sure about copyright. It was a tragedy as young people were denied an opportunity to be in touch with the rich heritage of their past. He wanted to hear from the presenters on how the legislation would allow opportunities for such books to reclaim their place in history.

He referred to the apparent difficulty of selling books in the indigenous languages. He asked about Prof Jeff Opland, an academic at Rhodes University who now lived in London and who had a vast collection of Xhosa literature that should be retrieved before he died as he was very old. Nicol Faasen (Carlo Lavizzari) had spoken of fair play and artists. It reminded him that the intellectual property chain was at play there. By design, there was a subtle orchestration through segmentation of the legislative instrument in ways which could be characterised as the proliferation of different pieces of legislation which should have a symbiotic relationship but which was kept in certain sectors to serve a particular interest that was not helpful to the artist. There should be some measure to bring together the proliferation of legislative instruments. One instrument should talk to all artists.

Ms Dlulane asked what Ms Ruth Delannoie thought would assist SSMEs. What could the Committee insert in the Bill? She was happy that Dr Mhlophe had stated that the owners of copyright did not know about the Bill. If the Bill was re-tagged as section 76, then news of the Bill would go to the people in the rural areas and not only to those who had the Covid luxury of getting to Parliament. She would ensure that the Department went to rural areas to promote public interest in the Bill.

Mr Wafawarowa said that the trouble was that everyone was treating copyright as if it were a domain of international players and not listening to players like him and Ruth Delannoie who were trying to play in that space. It was painful to sit at the Standing Committee on Copyright and Related Matters in Geneva and hear about attempts to repatriate copyright to Hoodia with its healing properties and Rooibos to SA because SA itself had not placed copyright on such things.

He informed Mr Burns-Ncamashe that he had translated Zemk Inkomo Magwalandini into modern orthography and it was in print and available. He had worked on many works with then Minister Pallo Jordan the works and those that Mr Burns-Ncamashe had referred to were in print and available. He believed that many people were unaware of the strides made in SA publishing. The best way to protect local culture was to exploit it and laws enabling that were urgently needed. He did not want local publishers reduced to the level of being perceived as recipients of knowledge. They were not. Some of the international professions had a paternalistic attitude towards local publishers.

Dr Mlophhe said that they should talk about the positive and good things in SA and not talk about what was missing. The talk should be about the books written and published in SA. Information was available.

Mr Carlo Lavizzari told Mr Burns-Ncamashe that access to all of the works mentioned was very important but one had to be careful that everything did not sit in an international digital database, maybe in California or in Switzerland, and not in SA. He urged the Committee to consider enabling the new digital heritage and not to forestall that process.

Oral submission by the Democratic Artistic and Literary Rights Organisation (DALRO)
Ms Melissa Dlamini, Junior Administrator at DALRO presented on behalf of the Managing Director  Mr Lazarus Serobe, who had had an accident the previous day. DALRO was a multi-purpose rights broker and collection association that administered various aspects of copyright on behalf of writers, authors and artists. The plea was for a Bill that benefitted the writers, authors and artists.

Dr Mbongeni Ngema presented the negative results of the Bill as he saw it, including that it was expropriation of the rights of creators, if the Bill were passed in its current form. Why was a copyright system rejected around the world, good enough for Africans?

Mr Lavizzari asked who would be the big winners of the Bill. He asserted that copyright law was complex and required deep drafting expertise. The previous Portfolio Committee had wisely appointed experts. The present Portfolio Committee should build on the four expert opinions already given, re-appoint experts, seek WIPO input and appoint a drafting expert group or ask DTI to appoint Standing Advisory Committee on Intellectual Property (SACIP) to present a fresh draft or a Member’s Bill.

(See Presentation)

Discussion
Ms Yako disagreed with parts of the Oral submission, such as starting a new Bill, but she agreed that the Bill should not be measured against countries like America but should be indigenous while recognising that SA exist within the world. Members had to consider SA performers specifically, including experts who were invested in the outcome of the Bill.

Mr Burns-Ncamashe said it was fine to express a view but it there were no recommendations. The Oral submission did not say which sections should be sent to experts for rewriting and so was not helpful. The Committee wanted a diagnostic analysis but also a prognosis. The Committee had to make decisions and so the presenters had to help them make decisions. They were not assisting if they did not provide details of what had to be done.

Mr Madlingozi said that he believed the fair use in the Bill would not be helpful to SA creatives. Because SA had not ratified the treaties, SA artists would not benefit. In the world of technology, SA artists would not be paid. He concurred with DALRO.

Dr Ngema agreed with the point about indicating what needed to be changed. A diagnosis had already been made. He had met with quite a few entertainment attorneys in the past year or so to discuss the Bill. He knew that there were specific points that needed to be amended but that it was not necessary to throw out the entire Bill.

Mr Lavizzari agreed that lawyers had identified specific points in the Bill but to give a comprehensive answer in hearings that had been limited to exceptions was difficult. It would, however, be possible to preface all the exceptions with the Berne three-step test and stay with fair dealing, i.e. abandoning the fair use clause. Fair dealing would still allow for exceptions. SA was an unequal country. CAB needed to cater for people who could pay and those who could not pay but there was no need to benefit the platforms.

Oral submission by Academic and Non-Fiction Authors Association of South Africa (ANFASA)
Ms Monica Seeber, Founder, Board Member and Head of ANFASA’s copyright team. She pointed out that the public had been invited to comment only on the President’s reservation but it had broadened significantly and now presenters had been asked to provide solutions, even though they had not originally been asked to present solutions. Her suggestion was to amend section 12A to 12D and determine urgent matters first.
The SA publishing industry was relatively small and needed to grow. Sustainability of the industry depended on educational books which led to 60% to 70% of industry revenues meaning that the loss of sales in education and licensing revenues would send the industry into decline

The Bill should address the development of South African knowledge production, reduce dependency on imported knowledge, encourage more writing and more publishing, create an enabling legal environment for authors and publishers and open a space for writing and publishing in indigenous languages.

(See Presentation)

Discussion
Mr Macpherson stated that he was the Committee Member that had warned the Committee that the lack of consultation would lead to the demise of the Bill. Did she agree that the Bill would not only deprive authors of payments and of earning a living, but authors would be exploited? If authors were to be exploited, would writers stop publishing and what would be the result for the future of education, especially in tertiary education if that sort of research and publication was not taking place?

Mr Cuthbert said that the last few oral submissions aligned. The fundamental point being made was once one undermined a person’s property rights or the person’s ability to earn an income off one’s labour, then one disincentivised that labour. It took an immense amount of work for a creator, a writer or any other, to create a work until final point of execution. Being an avid reader, he was fully aware that local authors were not making much per unit on books. The Bill would stem the creative industry and not allow it to flourish in an already constrained market. He emphatically agreed that it was a form of expropriation without compensation. It broadly fitted into the government’s decision to pass legislation that would fit into some sort of Utopia that he did not think could be realised. It was good to hear that the man on the ground felt very strongly in opposition to the Bill and could give a real world account, as opposed to the view of those sitting in ivory towers, of what it means to people who would be directly affected by the Bill.

Mr Burns-Ncamashe said that the public hearing was dealing with a remitted Bill and specific areas had been referred by the President. The Bill had to be re-tagged. There was no disagreement about because of the substantive measurement test. The Committee had to look into the area of fair use because of the lack of public participation but the President had also raised specific issues on the interpretations of international treaties and so on. Those were the areas where the Committee needed assistance. He appealed that the presenters honed into the real issues that would support decision-making processes.

Ms Seeber assumed that by exploitation, Members meant teachers using the material of authors without payment being made to authors. That would result in writers not writing. One could not expect authors to provide books without payment any more than teachers could be expected to teach for nothing. She found it odd that teachers said education should be free and therefore authors and publishers should not charge but those very same teachers expected a salary at the end of every month. It was disconcerting and troubling. Eventually local writers would not contribute and the country would rely on foreign works, although foreign writers might well boycott the country because of the country’s legislation. Nothing was free: teachers were not free; books were not free.

She did not understand the point about the public not responding to the real issue of international treaties  as many people had commented on them.  An expert had, that morning, stated that the CAB was compliant with the three-step test. She knew international experts who said that the Bill was not compliant. She would need hours to present her understanding

ANFASA did not condemn the Bill in its entirety but objected to provisions that deprived them of their right to earn a living. ANFASA requested the opportunity to participate in a value-added session as had a group of persons who supported the multinationals

Oral Submission by MultiChoice SA
Mr Collen Dlamini, Executive Head Corporate Affairs, spoke of MultiChoice’s need for updated copyright legislation but said that the Bills as currently drafted would not take the creative industries forward. The undue complexity and rigidity would impact negatively on contracting, financing, dispute resolution and remuneration to performers and other role players and have the unintended effect of undermining investment in film and television. Major concerns were no flexibility on payment regimes, no flexibility on contractual terms and onerous and unworkable reporting obligations. There was a need to revisit the Bill as a whole, not just deal with issues related to fair use and international treaties.

Mr Aynon Doyle, Head of Policy Research, MultiChoice, suggested that the Bill did not meet the three-step test because it did not protect the rights of the creators. The Technology Protection Measures (TPMs) in the Bill provided an example of how the broad exceptions in the Bill totally undermined the protection that was supposedly created by the Bill. Any exceptions permitted by law to circumvent TPMs should also be subject to the 3-step test.

Mr Dlamini pointed out that SA was not an island in a world of copyright; the Bill was likely to open the floodgates to litigation.

(See Presentation)

Discussion
Ms Yako welcomed the oral submission. It dealt with the topic properly, was in line with what the Committee had heard and described matters in a less complicated way. There had been a lot of requests to start afresh with the Bill but she received many SMS’s saying the Bill had to be passed immediately. What was the Committee to do? It would be hard to deal with a law in Parliament without the approval of the majority but when an artist passed away, there was always a call for the Bill to be finalised. There would be a battle either way as some supported passing the Bill and others did not.

Mr Mbuyane asked about the status quo regarding royalties on an omnibus or repeat shows. Were royalties paid again?

Mr Burns-Ncamashe said that all presenters should take into account the fact that there was a persistent expression that the Bill should be re-done but if one looked into the long title of the Bill, it was apparent that the Bill attempted to address reproduction of copyright work, payment of royalties, persons with disabilities and protection of digital rights, etc., it was all there. The President’s reservation arose from SA jurisprudence that valued human dignity and equality. Those values were not there before. The Bills gave just and equitable rights of artists and performers. He said that the Committee should be assisted and the public should hone into the long title. The question was whether whatever was proposed in the Bill would pass constitutional muster.

Mr Doyle agreed that one did not want to toss the baby out with the bath water but one had to distinguish between CAB where there were serious drafting issues and the PPAB which needed five or so minor changes to text and that would address the long-standing issue of performers not being paid. He reminded Members that the Bill included recommendations made by the Farlam Committee in respect of the music industry but the Committee had applied those provisions to all sectors of creators and performers but the provisions did not work for other sectors. In other words, the Bills should be uncoupled and the PPAB should go ahead.

He told Mr Mbuyane that MultiChoice supported the payment of royalties to performers. The fundamental difficulty with sections 6(A) and 8(A) was that they contemplated only a single form of remuneration and MultiChoice had structured deals in many different ways to enable rights to be renewed. Royalties ignored the myriad of ways in which material was funded and the contracts drawn up. One example was that a performer could retain ownership of a work and licence the rights to the broadcaster or assign some or all of the rights and that could include fixed fees, royalties, etc. He suggested that royalties could be retained in the Bill but the words “equitable remuneration” should be added, as per the Beijing Treaty which dealt with performers. The Committee should be open-minded to other possibilities of remuneration, of which the key element should be equitable.

Ms Wendy Rosenberg, Werksman’s lawyer contracted to MultiChoice, said that Mr Mbuyane had expressed a common misnomer about royalties. She reiterated that MultiChoice supported performers: it was not an us versus them scenario. They were all part of an ecosystem, dependent on one another. Everyone was compensated fairly before a show appeared on television. Members had to remember that some shows were a dismal failure but the risk lay with the producer as the performer was paid upfront. Performers took no risks. She stressed that there were different models of payment that worked for different sectors of the economy and MultiChoice simply wanted those options to be available.

Mr Dlamini understood the frustration of Members but that was because it was a poorly drafted Bill. He advised Members to decouple the Bills and review the CAB in total. It was better to take the pain now

Mr Mbuyane said that he was only partly covered by the response regarding royalties. Why did people die as paupers if there were such good contracts?

Mr Dlamini said that he had never had a complaint about a contract. It was incorrect to assume that all broadcasters paid actors poorly. Some of the creators were paid better than he or the Members. MultiChoice paid all performers well.

Oral submission by Netflix
Mr Bradley Silver, Head of IT Policy at Netflix, said that his organisation supported fair remuneration for authors and performers. But the reference to royalties in the Bill was inadequate. Sections 6A and 8A required stakeholder consultation and impact assessment to take recognition of flexible multiple remuneration models and should take account of recent legal developments, e.g. the European Union Copyright Directive of 2019. The Members should also consider the exclusion of audiovisual works as provisions applicable to music had been applied to audio-visual. Regarding ownership of audiovisual works, it would be best to retain section 21 of the Act in its current form as it was already compliant with treaties and consistent with international practice in common law countries where the producer of audiovisual work was presumed the author.

He added that if the Minister were to set terms for contracts, he needed to ensure that any standards set for fairness and equity also took into account industry specificities, permit contractual freedom and/or industry-driven approaches tailored to specific production types, depending on genre, format, budget, etc.

(See Presentation)

Discussion
Mr Mbuyane said that the submission was informative about the industry. He was interested in the developmental agenda of Netflix in SA and the localisation programme. What was the modus operandi of ownership? Was there a fixed fee? Did Netflix have an ownership and management programme around the demographics of SA? Did fair remuneration speak to what he had alluded to? How would Netflix deal with the contractual issues while being transformative in nature?

Mr Burns-Ncamashe stated that Mr Silver’s submission was almost what he had been emphasising in his input. The President had raised concerns regarding the international treaties and Mr Silver was looking at the implications, but not out of context, because there was a long title to the Bill which spoke to issues such as sharing and payment of royalties in the audio-visual sector. There was a symbiotic alignment between the two. The submission had shown possible differences and how those could be addressed. It was exactly what the Committee wanted to hear from presenters so that Members could apply their minds. Being critical without assisting the Committee was simply an academic exercise. He commended the oral submission.

Mr Madlingozi asked if SA actors and actresses were treated in the same way as foreign actors and actresses. Did Netflix have laws in place that protected local artists when signing Netflix contracts?

Mr Silver said that the intention of investing in SA was to partner with up and coming talent and Netflix ensured that it was as demographically and geographically diverse as possible. There was no one-size-fits-all in terms of ownership of content in SA. Sometimes Netflix commissioned content and then financed the production. In other cases, young producers came with exciting ideas and Netflix might take ownership of those ideas because it would put up 100% of the financing but the organisation also did other kinds of deals based on payment of a licence for the rights by Netflix. In other cases, Netflix co-produced and so the rights were split in terms of the agreement. There were many different flavours and Netflix did not have a specific religion when it came to doing deals. Netflix noted that different things worked in different countries and the organisation had to meet needs and be flexible to get best possible quality. Netflix listened to what made producers happy and what made creators happy because at the end of the day, if they were not happy, Netflix would not succeed. It would not attract the best content, the best ideas and the best people to work with. Netflix made sure that its door was as wide open as possible to ensure that needs were met across the industry. Netflix was working on skills development and incubating the next generation of creators.

As one who had been working in the IP sector and the entertainment industry for a long time, Mr Silver was excited about what Netflix was doing in SA because it would uplift society and grow the ecosystem. Netflix would bring whatever learnings or solutions were appropriate to help address problems raised in relation to the Bills.

In relation to royalties, there was only one narrative: authors and performers should be paid fairly and equitably. The question was about how that should happen. There was consensus around the issue. He could vouch for the fact that Netflix respected local authors one hundred percent as they were Netflix’s partners. The organisation had to treat people and pay them fairly if Netflix were to introduce SA work to the world marketplace.

Oral submission by Personal Managers Association (PMA)
Mr Andrew Dellow, Performer Manager and Vice Chairperson, was accompanied by Ms Tarryn Edwards, former performance agent and Chairperson of the PMA. The PMA strongly urged the National Council of Provinces and the National Assembly to expedite and proceed in passing the Bills, as audio-visual performers had been without proper legislative protection since 1967. The PPAB was in line with the Beijing Treaty on Audio Visual Performances which regulated copyright for audio visual performances and expanded performers' rights. He urged the Committee to do what was right and what was fair.

(See Presentation)

Discussion
Mr Mbuyane asked about the slogan: “What is right; what is fair.” What was his understanding of fair dealing versus fair use?

Ms Edwards stated that in terms of the CAB, fair dealing and fair use was out of their purview as performers. The PMA was there to talk to the Performers’ Protection Amendment Bill. In terms of what was right and fair, she quoted actor Javier Bardem who said, in relation to the Beijing Treaty: “This is the most important thing that has happened to actors since the invention of cinema.” The PMA was talking about what was right and fair in passing the PPAB. PMA believed that the two Bills were inseparable as the definition for the PPAB, the Tribunal and the method of collection of performers’ remuneration sat in the Copyright Bill.

Ms Edwards responded to Ms Yako’s question about fair payment for performers. What were performers complaining about? The broadcaster chose actor, paid a day fee and currently the broadcaster held the copyright for the material. The Actor was paid once per day and the broadcaster used the material four times over. The broadcaster then would not use that actor for a further series as it believed that, although the actor would be perfect for the role, he or she had been over-exposed and so the actor lost out a second time. She ended with a quote from Meryl Streep: “It’s simple fairness, passage of this (Beijing) treaty will extend to actors and other audiovisual performers protections that have long existed for sound recordings.”

Oral submission by the Writers Guild of SA (WGSA)
Mr Christiaan Steyn and Ms Theoline Maphutha represented the Writers Guild which had 453 members. Mr Steyn said that the Bill would have a positive impact on some performers and a negative impact on others. He acknowledged that the Bill addressed problem of outdatedness. The concern of WGSA was not about fair use but about adequate and appropriate definitions in the Bill. Currently, screen writers were not recognised as authors of work. Screen writers were not given a right to residuals or royalties.

The WGSA’s written submission contained concerns and many detailed recommendations. A major concern was that the Bill opened the door to lengthy, extensive and expensive litigation. There would be an unreasonable burden on copyright owners to enforce their rights through court proceedings, contractual alternatives and compensation. Creators could not afford such an expensive manner of exercising their rights. It was insulting and disrespectful to creators that work could be given away freely and that would definitely disincentivise writers.

(See Presentation)

Discussion
Mr Madlingozi noticed that the representatives of the organisation were white and they were looking at the international way of doing things. The Bill should be accelerated to protect the Africanness in creators in the present and in the future.

Mr Steyn agreed with a previous statement made by Mr Madlingozi that SA was unique and the Bill should be a unique SA Bill.  That was the main approach of WGSA. Fair use was essentially a foreign concept when looked at in the SA context and as such the WGSA urged that the Bill be drafted as an SA Bill. It was not necessary to redraft the entire Bill but the negative aspects, of which there were a few, should be addressed to help SA creators.

Ms Maphutha, Head of IP and Copyright at the Writers Guild SA, stated that according to the Act, authors of audio-visual works were the producers. Screen writers were badly paid although they worked to make something out of nothing. It was decent and proper that those who used the work paid for its use in the form of royalties and residuals. Broadcasters that did not pay repeat fees harmed the individual writer and the industry. It was an immoral business practice.

Oral submission by the South African Guild of Actors (SAGA)
Mr Jack Devnarain, Chairman of SAGA, informed the Committee about SAGA. He stated that many of the day’s presenters had a vested interest in maintaining the status quo as it ensured their profit. He pointed out that broadcasters said that they were paying well but avoided providing details of their contracts and lied about paying actors upfront.

Legal counsel for SAGA and constitutional specialist, Kelly Krogman welcomed the Bills but admitted that they could be improved. The powers created for the Minister in the Bills was a concern. The President had referred to only two treaties but had not referred to the Beijing Performers Treaty. SA performers had no protection in law. It was not a uniquely SA experience, hence the Beijing Treaty. Unfairness would continue to occur in the audio-visual sector unless addressed in the Bill. The state-owned SABC uploaded shows but did not pay repeat fees.

(See Presentation)

Discussion
Mr Madlingozi asked if all the pictures of actors and actresses on the collage on the screen were members of the Guild and what had SAGA done to intervene on their behalf. If not, why were their pictures on the Guild’s submission?

Mr Thring noted that it seemed that some presenters had been economical with the truth when stating how well paid actors were as Mr Devnarain had negated that opinion. Could he give a substantive example to support his view?

Mr Mbuyane said his question to Netflix and MultiChoice had now been answered because actors were dying as paupers but the Committee was told that they were well paid. Those actors had generated a lot of money and had been viewed by a lot of viewers. The Oral submission contracted earlier Oral submissions. As a rider, the contractual obligations were not revealed by the media houses. Why could they not say how much had been paid?

Mr Cuthbert knew that Mr Devnarain had been outspoken about Ms Shaleen Surtie-Richards’ sad passing. Could he give the story of how she had ended up without money at the time of her sad passing? That might give the Members a better understanding of how the current legislation led to such situations.  Could he give more detail and also some suggestion as to possible amendments as the slides were content-light?

Mr Devnarain said that not all actors on the collage were SAGA members, some were no longer members, some had died, some could not speak for themselves. SAGA honoured those who could not speak for themselves. The interests of SAGA went far broader than the current members. He was old and grey but his interest was in the next generation of performers. The industry had to be prepared through proper legislative and regulatory amendments to allow future members to earn from the work and sacrifice they put in. How did SAGA help? SAGA had a brief to educate actors on their contractual rights and the ways in which they could be exploited. They did not want conflict but wanted to avoid needless disputes.

Mr Devnarain told Mr Thring said that there would be two sides to the argument about the payment of actors; one side saying they were not paying enough and the other that they were earning well. The truth lay somewhere inbetween. The debate was not how much actors were paid but that they had to have the statutory right to earn royalties and to view how royalties were calculated, a right that was enjoyed by actors across the world. There was no set standard fee for actors. The rates were variable. The international productions paid better but South Africa had to own the statutory legislative framework in the country. A regulatory framework had to create a sovereign process to which both local and international producers would have to adhere so that actors were fairly paid and allowed to earn royalties.   

He informed Mr Mbuyane that actors would never be sufficiently paid because there were so many variables in contracts. An earlier presenter from a broadcaster had said actors were paid upfront. It was not true that actors were paid upfront, unless the actor signed away all rights in perpetuity. It was a contract that the actor had to sign or walk away from the job. It was an insulting exploitation; it was no longer about Rands and cents. He would share performers’ contracts with the Committee but the broadcasters would never reveal the contracts as they would have to hang their heads in shame.

Mr Devnarain responded to Mr Cuthbert’s question about how contracts could help actors such as Ms Surtie-Richards. Ms Surtie-Richards had been in a financial position where she had been unable to afford the health services that could have saved her life after nearly 40 years of some magical performances and an iconic body of work celebrated around the world. The industry had created an environment in which she could not afford health care commensurate with her earning capacity and the amount of money that she might have earned. It was a travesty. The leaders in the industry had done nothing to help and everyone had watched her die.

Mr Cuthbert had a follow-up. He said it seemed as if contracts were signed under duress. Could Mr Devnarain’s organisation, and actors in general, not have demanded better contracts or refused to act? Or did the existing labour and copyright legislation prevent actors from doing such a thing? In essence, actors could refuse to render services to a company and if there was no one to act that particular production company or streaming site would not be able to benefit from having a quality performer in the pieces that they produced.

Mr Burns-Ncamashe said that Mr Devnarain had mentioned best international practices regarding remuneration and royalties. Were there any inadequacies in the current form of the Bill? If so, what were they and how could they be amended to ensure reasonable and/or optimal protection of actors?

Ms Kropman responded to Mr Cuthbert. An understanding of the nuances of the industry was required. Actors were not employees and were not protected by the Labour Relations Act, the Basic Conditions of Employment Act or the Employment Equity Act. The Competition Act prevented collective bargaining. The attempt to obtain sectoral protection was still a long, long way away. The only protection was common law. When an actor did not feel comfortable in a role because of payment, physical safety, etc., the answer was always “take it or leave it.”.  Actors were not covered under the Health and Safety Act, nor could they have could not have collective engagement. Regulations regarding contracts should be codified within the Bill as the Minister could not create rights within regulations and that could be construed as too much power for the Minister.

Both Bills took actors further in protecting audio-visual performers but more work was needed on collective societies, protection of actors via contracts to ensure actors were fully protected in a similar way to which music performers were protected against fixations.

Oral submission by the Independent Black Film Collective (IBFC)  
Ms Azania Muendane, Co-Chairperson of the IBFC, welcomed the decisions made by the Committee to retag the Bill, delete sub-sections 6A(7), 7A(7) and 8A(5) that created a retrospective effect, to seek further public participation in relation to clause 13 (sections 12A to 12D), clause 19 (section 19B) and clause 20 (section 19C) and to seek public comment on whether the Bill was compliant with international treaty obligations.
 
Ms Nobantu Phumla Mfeka, IP law advocate, stated that the Bill gave on one hand and took away with the other hand. The IBFC said that the industry still lacked a social impact assessment study. De-couple the Bills and deal with the Performers Bill urgently. Review the CAB. She said that the Bill dictated what a creator had to do with a work, such as sell one’s work outright for a large fee. The Bill would lead to creators having to prove exploitation. Section 6A, 7A, 8A intended to provide a prevention for exploitation but contractual terms could not be imposed on the industry. She said that the impact assessment would suggest which model would work. Fair use was an imported foreign system and not based on South African legal history. It would benefit Big Tech companies and enable “Digital Colonialism”. She presented specific concerns.

Adv Mawande Seti-Baza, an international entertainment lawyer, addressed specific constitutional concerns, referring to procedural and substantive defects. She concluded that the legislation left a lacuna to be decided by the courts.

(See Presentation)

Discussion
Mr Burns-Ncamashe responded to the request for a socio-economic assessment. What was it that the Bill did not cover that would be revealed by the socio-economic assessment? What were the vague terms she was referring to? In practical terms where did the Bill neglect human rights? How could the Bill guarantee human rights? Adv Seti-Baza had spoken of human rights and the deprivation of property but the Constitution also provided for a law of general exception so that section should not be interpreted in narrow ways. What did she understand by “a law of general exception”? How could it pass constitutional muster?

Mr Madlingozi agreed that people should not work without appropriate compensation. He asked why the organisation had been so named and what challenges had they, as black film makers, experienced. Were there other organisations under their umbrella and what amendments did they, as black film makers, wish to see?

Ms Muendane stated that the dtic had said that it had done a sample study but that study had not been revealed. A study was necessary to show how society would be impacted by the legislation and to test the effectiveness of the provisions on the various creative industries. Creative industries were not all the same and so they would be impacted differently. The study should look at the impact on the economy overall given that the creative industry, from local and international production, was one of the larger contributors to GDP. The study would assist the Committee by providing empirical evidence.

She explained that the naming of the organisation was to show that it was a collective of different companies and black individuals as well as private companies in the value chain. As government had said in 2017 that it could not engage with individuals, the collective was formed. It was independent was because individuals or companies might have been part of IPO, etc but, unlike the sector-specific organisations, they had wanted to represent the entire value chain.

She said that the vague terms, such as local organisations, did not indicate whether the provision referred to, for example the SABC, which had been specifically referred to in the original Bill.

Ms Mfeka responded to the question on the socio-economic assessment. It would show how the legislation would affect the different role players and how their rights would be impacted. Without that study, some industries could be wiped out. It would show how the Bill would impact on various parts of the industry. The President had established an impact assessment unit in the Evaluation Division as many Bills were being passed by Parliament without going through an impact assessment. All legislation had to have a socio-economic assessment before a Bill was passed as a Bill had an impact on livelihoods: it was not just a piece of paper. There were several ways in which the Bill would disenfranchise certain sectors. If one took away the right to earn from someone who had the right to earn and own property, people went to war. But copyright holders were being told to give away their copyright and were not given the same rights as someone who owned property in the form of land. The Bill imposed provisions that took away rights that people had in the global village.

Adv Seti-Baza agreed with Mr Burns-Ncamashe that there was an overriding proviso that took over when a law of general application was adopted. However, that law had to be adopted properly. The current Bills had constitutional deficiencies. The fact that there would be a law of general application at the end of the process did not mean that the deficiencies should not be considered prior to that law being passed or it would result in expensive litigious processes. Producers would have to engage in that very expensive litigious process.

Mr Burns-Ncamashe asked what understanding Adv Mfeka (Adv Seti-Baza) had of the exception in relation to section 25(1) and how did she relate that to the limitations of section 36(1) which considered limitation reasonable and justifiable. Could she, in the context of the current Bill, respond to how it would relate to the rights of owners of copyright, especially the exceptions in relation to the doctrine of fair use?

Adv Seti-Baza said that to answer the question of reasonability and justifiability under section 36, she would, as an example, look at section 12(b)(1)(c) which permitted the reproduction of the work by a broadcaster when it used its own facilities to reproduce the work and was allowed to preserve such work, if it engaged with the producer. It could reproduce and use that work within six months. What happened when the broadcaster made money from the work in the six months? The IBFC did not believe it justifiably limited the author’s rights over his intellectual property. That was just one example. It was about reasonability.

Ms Mfeka said Mr Burns-Ncamashe was seeking a justification of exploitation of property right which was not welcomed in the context of the country.

Mr Burns-Ncamashe wanted to place on record that presenters had to understand, when they came to the present to the Committee, that that the Members were lawmakers; they were not ignorant people who did not understand what was happening.  Therefore, the presenters had the onus and obligation to come to the Committee and convince them of their point of view. It was not for them to say that the Members accepted expropriation.

The Chairperson said that Mr Burns-Ncamashe’s point might be debatable because presenters had to respond openly and honestly. If they did not agree with the Committee, they should express that point and motivate it so that the Committee could understand their position.

Mr Cuthbert agreed with the Chairperson. He said that stakeholders should have the right to express their views. If they had a strong view on property rights, they should be able to express that view and Members of Parliament should not hinder them from doing that. It was a consultative process and he did not like Members of Parliament acting as the thought police, telling presenters what they could and could not think.

Ms Muendane said that they did challenge the issue regarding rights to property, in particular intellectual property. The IBFC wished to empower performer and competition. The IBFC was of the view that the proposed legislative amendments as they stood would not achieve the intended outcomes and offer authors and creators of copyright works the benefits due to them.

The comments of the IBFC only reflected the most glaring concerns in the Bill. Given the urgency and importance of the proposed changes, the IBFC recommended that the Portfolio Committee immediately obtain expert legal opinion and assistance to determine what was required to bring the Bill into being as an Act that was fit for purpose, fit for the industries it aimed to protect and was in compliance with International Treaties. It also called on the Committee to conduct a proper socio-economic impact assessment on the complex provisions in the Copyright Amendment Bill. The IBFC was open to consistent dialogue and willing to offer its time to make the Bills fit for purpose and work for all South Africans. The Committee could call on the IBFC  anytime.

Oral submission by Independent Producers Organisation (IPO ) / Animation South Africa (ASA)
Ms Thandi Davids, Co-Chairperson of IPO and a working producer, explained that, pre-Covid, the South African Audio-Visual Sector was valued at R8-10 billion, of which over R3.4 billion was Foreign Direct Investment. The sector grew at 5.2% year-on-year, which was higher than the national average, and offered +- 60 000 full time, full-time equivalent and freelance jobs. The figure was 120 000 when including induced jobs. The film and TV production sector was one of the fastest growing sectors in the world. In 2020, it had exploded to $220 billion globally. Unless a conducive, globally attractive and aligned legislative framework was assured, the South African sector would lose out on that massive opportunity, in turn losing the country billions in economic activity and foreign direct investment and costing thousands of jobs.

Mr Quinton Fredericks, Co-Chairperson and also a working producer, addressed five specific points in the Bill: Legal certainty (sections 12A, 19C, 14(6), and other); contractual flexibility (sections 8A, 39B, and others); unification of rights (sections 22(b)(3), 23, 8A(5)(b)); enforcement of rights (sections 12A and other sections); alignment/compliance with international treaties (various sections of the Bills).

(See Presentation)

There were no questions from Members.

Concluding remarks

The Chairperson stated that the hearing would re-convene at 9am the following day.

The meeting was adjourned.