Copyright & Performers’ Protection Amendment Bills: report to House requesting permission & amendments to be advertised for public comment; DTIC BRRR

Meeting report

Opening remarks
The Chairperson welcomed Members and indicated that the two items on the agenda were the deliberations on the Remitted Bills and the Budget Review and Recommendations Report (BRRR). Adv Charmaine van der Merwe, Senior Legal Advisor, Office of the Constitutional and Legal Services, was to lead the discussion on the remitted Bills.

The Committee needed to make a decision on the way forward in respect of processing of the Bills, to consider requesting approval from the House of Assembly for permission to consider certain additional clauses and to consider the way forward in respect of the current clauses under discussion that would require advertising for public comment.

Presentation of Proposed Amendments to the Copyright and the Performers’ Protection Amendment Bills
Adv Charmaine van der Merwe informed the Members that she would first be presenting the new matters that Members needed to consider but which required permission from the House of Assembly to consider: one matter related to new definitions and the second one to extended rights.

Adv van der Merwe informed Members that the actual wording would not be determined by the House and that once the House had given permission, the Members could discuss the wording. She added that once Members had deliberated and given consideration to specific issues, the Committee could even decide not to make a change.

New Definitions
“authorised entity” – the term relates to those entities that service or support persons with disabilities as referred to in section 19D in respect of specific rights, etc. under the Copyright Act. The proposed amendment would include the words “authorized entity” so that those entities could provide services under the Copyright Act to people with disabilities. The Minister would have to prescribe or authorise those entities and that could be done when the regulations were amended. The concept was that a specific group of entities that would provide service to disabled people would be defined.

“Broadcast” – the principle was that the definition had been amended in the Performers Protection Amendment Bill (PPAB) and there was a different definition in the Copyright Amendment Bill. The intention was to amend the definition of broadcast in the Copyright Amendment Bill to align with the PPAB and that required permission of the House of Assembly as an amendment to the definition of “broadcast” was not in the original scope of work given to the Committee. The issue of whether or not to remove the word “wire” would be made only after the Committee had been given approval to discuss the definition.

“Lawfully acquired” – the Committee would require permission to address the point and then it would be able to take full discussion on both the concept and a definition of the term.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

New clause extending rights
Section 11A and B: the Copyright Amendment Bill extended new exclusive rights of ‘communication to the public’, ‘making available’ and ‘distribution’ to literary, musical and artistic works and cinematograph films and sound recordings but there had not been corresponding amendments extending those rights to published editions in Section 11A or to computer programmes in Section 11B. The former was an oversight and the failure to extend those rights to computer programmes meant that the relative requirements of the international treaties had not been met as computer programmes were deemed to be literary works under the Berne Convention and the WIPO Copyright Treaty. 

The Chairperson suggested that Adv van der Merwe should present all details before the Committee discussed the issues.

Adv van der Merwe suggested that a decision was needed on items to go to the National Assembly so that the secretariat could write a report to the House.

The Committee Secretary reminded the Committee that the parties had agreed to deliberate the matters that had to go to the National Assembly in their caucuses. Members could ask questions of clarity, following which the draft report to the House would be flighted.

Mr S Mbuyane (ANC) suggested that Adv van der Merwe should complete her presentation before the Committee adopted the report.

Ms J Hermans (ANC) agreed that the Committee should process the report. However, she sought clarity whether the Committee was requesting approval for the removal of the word ”wire” or whether permission was requested simply to allow the Committee to consider the definition as the Committee needed to amend the definition to ensure alignment between the two Acts.

The Chairperson agreed that the Committee could look at the National Assembly matters if the Members so wished.

Mr D Macpherson (DA) stated that the presentation should be completed. He noted that a party did not need to take a position at that stage as the public and experts needed to be given the opportunity to guide the Committee. He suggested that either the Committee agreed on each point or that there was a general agreement on what would be presented to the public.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             
The Chairperson asked whether there were further inputs on process.

Ms Y Yako (EFF) agreed that the presentation should be completed and then the Committee could agree or not to the entire matter.

Adv van der Merwe agreed to take the Committee through all the proposed amendments. She would indicate which amendments required House permission and which had to be advertised. She reiterated that the Committee was requesting permission to deliberate; it was not obliged to take any particular position on any of the matters.

Presentation of Possible Amendments to the Remitted Bills
Adv van der Merwe went through all possible amendments arising from the public submissions.

Copyright Amendment Bill
“Accessible format copy”: it was necessary to broaden the definition by adding the words “including to”. There might be further additions in section 19D. No need for advertising or permission.

“Technological protection measure”, “technological protection measure circumvention device” – no additional action necessary. ‘Services” and “products” could be added but the current wording might contain some difficulties in respect of the definition.

New definitions of “authorized entity”, “broadcast” and “lawfully acquired” had been discussed.

The new clause extending rights in Section 11A had been discussed.

Section 12 - Clause 13
Section 12: deletion of duplications. The specific exceptions in 12B-D need not be repeated in 12A. Consequential amendments might also be necessary. No permission required to remove duplications.

12A: regarding the moral rights of the author. The proposal was to remove “as far as is practicable” as that was open to interpretation. It was not new nor changing the content. No need for advertising or permission.

12A: the fair use criteria were listed but it was not clear whether the lists in 12B to D were subject to the fair use factors. It was necessary to specifically indicate that the fair use factors related to the lists. A paragraph should be added to 12A but the wording should be advertised to ensure that the Committee had fully resolved the issue.

12 B (1)(a)(i): make the “fair practice” standard explicit. No need for advertising or permission.

12B(1)(c): reproduction of a work by a broadcaster: Use the Canadian Copyright Act’s wording regarding ephemeral provisions. Adv van der Merwe recommended that the wording be advertised.

12B(1)(f): translations. To promote the Bill of Rights and reflect the full range of purposes for which a lawful translation may be made, “language and culture” should be added as an additional purpose. No need for advertising or permission.

12B(1)(i) – add words “lawfully acquired”. It could be done without advertisement as it was implied in the Bill and the intention was to make it explicit.

12C: layout error – the final phrase was contained under (b) only, but should apply to (a) and (b). No need for advertising or permission.

12C and 12D: add the three step test. The intention in the Bill was for the three step test to be used to determine fairness. It would be the basis for court judgements. Adv van der Merwe advised that it be advertised to obtain public input on the wording.

Section 19C(4): repetition of “commercial purposes” as already in 19C(1). Duplication be removed - no advertisement required; consider changing limitation contained in the clause, and that would require advertising.

Section 19D(3), and possibly 19D(2): “authorized entry” – add wording (no advert); add definition (would require advertising). Discussed earlier.

Section 19D: expressly for use by people with a disability. There was a need to state that work adapted for a specific purpose could not be changed and that if the purpose of import/export of a work was for a person with a disability, it could not be used for an able-bodied person. That required new wording and therefore it was necessary to advertise.

Section 27: introducing the legal tools that rights-holders need to enforce the new electronic and digital rights. Advertising was required as the penalty was new.

Clause 29 -Section 28O and 28P: technical amendment relating to a change in related Acts.

Clause 33: technical error in section 39(cH) as it cross-refers to section 28B, but it should cross-reference 28P. Amendment recommended to correct the reference but advertisement not required.

Performers Protection Amendment Bill
All comments on the Copyright Amendment Bill would apply to the Performers Protection Amendment Bill, especially the references to “broadcast”.

Clause 3 – section 3A(3)(b): required clarity as it was confusing. In Audio Visual work, one can be paid a royalty or remunerated; with sound recordings, royalties did not apply and a remuneration had to be paid. No need for advertisement but it was highly relevant for contracts in the fields.

Clause 6 section 8D:  technical amendment. The word “into” had to be added after ‘entered’. No advertisement was necessary as it was technical.

Discussion
The Chairperson stated that unless parties had proposals for changes, the Committee should consider accepting the recommendations of Adv van der Merwe.

Ms Hermans proposed that the Committee proceed with the proposals for amendments made by Adv van der Merwe.

Mr Mbuyane seconded the proposal to accept the recommendations.

There were no objections.

The Chairperson noted that the Committee accepted the recommendations by the Legal Advisor.

The Secretary stated that in the light of the acceptance of the proposals, he  would present a draft report, addressed to the National Assembly, indicating the progress made in dealing with the Remitted Bills and requesting permission to address the points that Adv van der Merwe had indicated were beyond the scope of the original instructions from the House.

Interim report of the Portfolio Committee on Trade and Industry on the Copyright Amendment Bill [B 13B-2017]  
The Secretary read the report.

The report concluded with a recommendation that the National Assembly grant permission to the Portfolio Committee to amend the specific additional provisions in Copyright Act: The Committee recommends that the National Assembly grants permission in terms of Assembly Rule 286(4)(c) for it to amend other provisions of the Copyright Act, 1978 (Act No. 98 of 1978).

The report was approved without amendment by the Committee and would be sent to the House.

Read: ATC211119: Interim report of the Portfolio Committee on Trade and Industry on the Copyright Amendment Bill [B 13B-2017] (National Assembly – sec 76), dated 19 November 2021

Process regarding aspects of the Bills that require advertising
Adv van der Merwe suggested that the next step was that the Committee should look at the wording in the clauses that had to be advertised. 

She had been meeting with the secretariat and the Department of Trade, Industry and Competition to discuss wording. She would be ready to make a presentation on wording for the points to be advertised next Wednesday when the presentation is scheduled on the Committee Programme. Once the wording on clauses for advertisement had been finalised, the Committee could move on to the remaining amendments that did not require House approval or public comment.

The Chairperson agreed that the wording for those matters that required advertisement be prepared for a presentation the following week.

The Secretary confirmed that the programme had planned for such a presentation the following week.

Ms Hermans confirmed that the Committee should meet the following Wednesday to deal with matters to be advertised.

Consideration of the Budgetary Review and Recommendation Report of the Portfolio Committee on Trade and Industry, 19 November 2021
The secretariat had included an introduction which the Secretary read aloud. He also read the Conclusion that had been amended to include input from Members at the previous meeting, and the single Recommendation.

The Chairperson asked for input from Members.

Ms Hermans said that, noting that the objections of the other political parties had been captured at the previous meeting, she recommended the adoption of the BRRR as tabled.

Mr Mbuyane seconded the adoption of the report.

There were no objections to the report.

Ms Yako said that she reserved the comments of the EFF.

The Secretary noted the abstention of the EFF.

Mr Cuthbert stated that it was not an abstention by the EFF but, like the DA, the EFF reserved its right to take the matter further during the discussion in the House.

Mr Mulder stated that the FF+, likewise, reserved its right.

The Chairperson noted that there were no objections. The BRRR was adopted by the Portfolio Committee.

The Secretary stated that he would note on the report that the parties reserved their right to debate the matter in the House of Assembly.

Read: ATC211119: Budgetary Review and Recommendation Report (BRRR) of the Portfolio Committee on Trade, Industry and Competition, dated 19 November 2021

Closing remarks
The Secretary informed the Committee that on the following Tuesday, the Industrial Development Corporation (IDC) would present its Annual Report and on Wednesday, the Committee would consider matters in the Remitted Bills to be advertised.

The Chairperson thanked Members for their participation.

The meeting was adjourned.