This article was published in Juta Law’s Legalbrief Today on Thursday 18 April 2019, when the Department of Trade and Industry finally posted a statement about the meeting on its website.
Many Copyright Amendment Bill stakeholders at a recent ‘engagement’ with Arts and Culture Minister Nathi Mthethwa and Trade and Industry Minister Rob Davies were left with the impression that neither Minister fully understood their concerns or the complex copyright and intellectual property issues underpinning them. The invitation was extended ‘only’ to stakeholders whose email addresses featured in its cover note and was sent at short notice, allowing participants just four days to prepare. The way it was worded tended to suggest that the meeting had been called so that stakeholders opposed to the Bill’s promulgation could formally present their ‘objections’. Yet according to a clip of Minister Mthethwa’s introductory remarks circulated on Twitter, both supporters of the controversial Bill and its critics were in attendance. They were given a five-minute ‘break’ to put their heads together in their respective groups and elect a representative to articulate each of the two views to which he referred: ‘those saying in the media that the President should not assent to the Bill’ and ‘people who are saying the Bill is fine, you can go ahead’.
According to Coalition for Effective Copyright in SA spokesman, Collen Dlamini, legitimate industry concerns voiced during the meeting were swept under the carpet with vague references to addressing the issues by way of regulations. In his concluding remarks, Minister Rob Davies reportedly spoke of government’s ‘duty to intervene’ in contractual negotiations between ‘vulnerable artists’ and ‘powerful’ companies with ‘vested interests’ – among other things to ‘prevent’ artists and performers ‘dying as paupers’. Davies is worried that, should the Bill be returned to the National Assembly, it could take ‘years’ for it to complete its second passage through Parliament – prolonging injustices widely understood to need urgent attention. Yet six years were allowed to pass before legislation was tabled in Parliament with the aim of giving effect to recommendations in the 2011 Copyright Review Commission report addressing these very matters.
In a media briefing on the meeting’s proceedings, Dlamini cited ‘inadequate public consultation on crucial aspects of the Bill’ as one of several reasons why it should be sent back to the National Assembly (Business Day). Legalbrief Today has regularly draw attention to this over the years, with Parliamentary Monitoring Group records substantiating Policy Watch reports on many of the discussions concerned. On 18 August 2017, when members of the National Assembly’s Trade and Industry Committee discussed how best to proceed with redrafting the deeply flawed Bill, Department of Trade and Industry DG Lionel October proposed replacing it with less ambitious amendments focusing on key Copyright Review Commission report recommendations. He believed this would most effectively deal with the need for a ‘properly regulated’ music industry; protection for ‘vulnerable people’; and provisions in the Act to accommodate ‘digital change’ and specific international treaties. At the time, October’s view was that the vexed issue of fair use as opposed to fair dealing should be left to a separate Bill – giving his department more time to convince industry stakeholders of the merits of a system found to have worked so well for the US economy. He was shot down in flames by the ANC’s Adrian Williams and the DA’s Dean Macpherson. As a result, the committee instructed parliamentary legal adviser Charmaine van der Merwe to redraft the entire Bill, concentrating on its numerous technical shortcomings and leaving policy issues well alone.
During the final leg of the 15-month process entailed, the scope of the technically reworked Bill was extended to include amendments to the principal statute not featured in the originally tabled version and apparently rectifying technical shortcomings identified by the panel of experts. These were released for public comment in three successive rounds – beginning just six weeks before the Bill was adopted. On one occasion, stakeholders were given a fortnight to prepare and submit their input. Earlier in the process, new clauses proposed for inclusion in the reworked, rearranged, renumbered Bill were released with the original flawed version to give them context. But most worrying of all was that only one member of the committee demonstrated a working knowledge of copyright law: FF Plus MP Anton Alberts, who firmly and courteously pointed out the Bill’s shortcomings on at least one occasion. The controversial piece of proposed new legislation was before the committee for nearly 18 months, yet by the end of the process most members were none the wiser about the meaning of its provisions, let alone their far-reaching implications. The NCOP’s Trade and International Relations Committee dedicated only one entire meeting to it, having been briefed five weeks earlier – after dealing with negotiating mandates on the National Credit Amendment Bill. The meeting at which Department of Trade and Industry deputy-DG Evelyn Masotja provided input on stakeholder submissions was attended by six NCOP committee members, two of whom represented the DA and none of whom understood the issues – the DA’s Ockert Terblanche and Willem Faber by their own admission.