COPYRIGHT AMENDMENT BILL: EXPERT ADVICE ‘MISSTATED’ AND IGNORED

This article appeared in the 22 March edition of Legalbrief Today, under Policy Watch

Parliament has largely ignored the advice of copyright law experts approached last September by the National Assembly’s Trade and Industry Committee for their views on ‘terminology’ used in the controversial Copyright Amendment Bill. Yet a Department of Trade and Industry presentation on which the NCOP’s Trade and International Relations Committee relied heavily before deciding this week to adopt the Bill’s ‘B’ version left members with the impression that the panel had ‘verified’ clauses many stakeholders believe should have been removed. Drawing attention to the ‘misstatements’ concerned, a letter to Trade and Industry Minister Rob Davies and NCOP committee chair Eddie Makue from panel member André Myburgh asked the Minister to ensure not only that they be ‘corrected on public record’ but that the committee consider ‘the actual responses of … panel members’ in its deliberations.

Myburgh’s letter provided Davies and Makue with copies of documents sent to the National Assembly committee by panel member Michelle Woods (World Intellectual Property Organisation), along with links to electronic copies of input from members Joel Baloyi (University of SA), Wiseman Ngubo (Composers, Authors and Publishers Association) and Myburgh himself. It also drew attention to ‘recommendations from members of the panel as to how certain desired policy outcomes could be made to work’ – along with instances where individual ‘positions’ at the time were, in fact, ‘consistent’ with those of stakeholders whose interests the Bill seeks to protect. This was noting a 6 March NCOP committee media statement among other things commenting on the contrasting views of ‘performers and artists’ (who are apparently ‘happy’ with the Bill) and the general ‘dissatisfaction’ it has allegedly elicited among ‘experts’.

At the time of writing, neither the Minister nor Makue had replied to Myburgh’s letter. However, during Wednesday’s NCOP committee meeting Department of Trade and Industry Deputy DG Evelyn Masotja did concede that ‘most’ members of the panel had been ‘worried’ by references in her presentation to their having ‘cleared’ the Bill. Explaining the panel’s role in the process, she said that, while the advice of individual members had been considered by the National Assembly committee, not all recommended amendments had been accepted. ‘They did not clear the Bill,’ she assured NCOP committee members. According to a document spelling out what was required of the panel at the time, its members were asked for their views on: the ‘appropriateness’ of terminology used ‘in the context of local copyright law parlance’; whether the Bill’s ‘wording’ reflected policy imperatives outlined in the memorandum on its objects; whether clauses seeking to address SA’s obligations in terms of various international treaties ‘correctly’ reflected their content; and ‘whether any of the clauses raise(d) constitutional concerns’.

On Wednesday, having ‘applied their minds’ to the most recent proposals received from stakeholders for amendments to the Bill (at least in Makue’s view), NCOP committee members chose not to consider them further in the light of Masotja’s presentation. Makue also referred to email correspondence from ‘international’ parties sent after the deadline for written submissions had expired, lobbying for the Bill to be withdrawn – and ignored by his own admission. Sadly, if input from committee members during two meetings at which the Bill was superficially discussed are any indication, they are no more familiar with the complex issues underpinning the advice of the panel of experts than their colleagues in the National Assembly committee were when they adopted the Bill last year. This notwithstanding, its endorsement at next week’s NCOP plenary is probably a foregone conclusion – despite widespread media coverage of unintended consequences likely to include job losses across all affected industries (Fin24) and a decline in ‘scholarly innovation and cultural development’ (The Conversation).

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Trade and Industry Minister Rob Davies

THINGS FALL APART

It’s rather worrying when a Constitutional Court judgment creates ‘some confusion’ in government about the department responsible for giving effect to the order concerned. But that was apparently what happened when, in 2017, the court found the 2011 Local Government: Municipal Systems Amendment Act invalid. Which is why it took nearly two years for the required amendment Bill to be tabled in Parliament – at least according to a media statement from Cooperative Governance and Traditional Affairs Minister Zweli Mkhize.

The Act was declared invalid because the Bill concerned was incorrectly classified as section 75 legislation (ordinary Bills) instead of section 76 (Bills affecting the provinces) and therefore processed without the involvement of the provincial legislatures. So, how on earth did the Minister and/or his department expect Parliament to follow the necessary procedures in the six weeks available when the amendment Bill was tabled on 7 February? In anticipation of the 8 May elections, the National Assembly is scheduled to rise on 20 March and the NCOP a week later.

The statement tends to suggest the Bill’s tabling at the eleventh hour was a formality and that it was always the department’s intention to apply to the court for another twelve months to process it. But here’s the rub: local government has been in crisis for decades, hence the need for a turn-around strategy. The accountability of municipal managers (or, possibly, their lack of it) is widely perceived to be at the root of the problems besetting most local authorities: an issue the invalid Act was expected to address by empowering the Minister to make the necessary regulations.

To sum up: 1) the crisis in local government prompted national government to begin implementing a turn-around strategy in 2009; 2) the 2011 amendment Act was supposed to give the Minister the teeth to hold municipal managers accountable; 3) in 2017 the Act was declared invalid by the Constitutional Court; 4) a replacement Act should have been in force by March this year (2019); and 5) it isn’t. If you look at the judgment, it’s perfectly obvious who should be taken to task. Yet municipalities are being told they ‘should not panic as this is not one of those situations where the Act was already in place and its suspension would … lead to a lacuna or vacuum’.

Really? Things are literally falling apart under some local authorities. If the municipalities themselves aren’t panicking, the unfortunate folk living in them probably are.