THE REMITTED COPYRIGHT AMENDMENT BILL:
THE PARLIAMENTARY PROCESS (second time around)
(brief summaries of recent meetings, in reverse date order, going back to November 2021)
18 June 2022
Committee reports on each Bill were adopted and tabled in the House on 10 June. The Bills topped the list of matters to be considered under 'further business' on 14 and 15 June but were not debated. As a result, the next leg of their second passage through Parliament will be delayed by at least two months, the National Assembly having begun its long winter recess. If passed by the House when it reconvenes towards the end of August, the Bills will be sent to the NCOP where, having been retagged as section 76 legislation affecting the provinces, they will be subjected in their entirety to a robust public participation process involving each provincial legislature.
8 June 2022
ANC representatives in the National Assembly's Trade & Industry Committee used their majority status to adopt a 'D' version of the Bill on 8 June, together with a 'D' version of the Performers' Protection Amendment Bill. There was no meaningful discussion on the 'C' list of each Bill reflecting amendments apparently agreed on 25 May with the aim of addressing the President's reservations. In fact, that day members simply considered each amendment proposed by parliamentary legal adviser Chairmaine van der Merwe - with DA representatives refusing to participate on the grounds of procedural concerns. There was no substantive discussion then, either - except on the vexed issue of the Copyright Amendment Bill's now deleted retrospectivity clauses. Introduced towards the end of the 2017/18 process of reworking the original Bill, their purpose was to ensure redress for musicians and performers whose royalties have been witheld.
19 May 2022
There have been three more inconclusive meetings this month on the Bill. Each has focused on recommendations for amendments from parliamentary legal adviser Charmaine van der Merwe and Department of Trade, Industry & Competition Deputy DG Evelyn Masotja. Their purpose is to address concerns expressed by President Cyril Ramaphosa about certain clauses in the Bill. Yesterday, members were again asked to caucus party principals on what is now being proposed for the wording of each recommended amendment, informed by a consolidated briefing document. Presented in table format, it summarises the department's response to stakeholder input on clauses reopened in December 2021 for comment. Sub-paragraph (8) on page 14 of the wording document was corrected during the meeting.
Throughout this leg of the process, committee members' questions for clarity have been disappointingly superficial - pointing to a poor understanding of the complex issues being unpacked during each briefing. Havng indicated his party's discomfort with the committee's approach, the DA's Dean Macpherson has not participated at all. Neither has his colleague, Mathew Cuthbert. As a result, to all intents and purposes the process is being driven by parliamentary legal services and the department.
Letters received last week from unnamed stakeholders (apparently asking for the Bill to be completely redrafted) have not been discussed. When asked for her view on their contents, Van der Merwe explained that, in terms of the parliamentry joint rules, if the committee considers the remitted Bill so fundamentally defective that nothing can be done to remedy it, the committee may reject it. However, a remitted Bill may not be completely redrafted by Parliament itself.
6 May 2022
Members of the National Assembly's Trade & Industry Committee have until next Wednesday to consult their constitutencies and caucus at party-political level on the options now available to them in finalising further amendments to the Bill. This was the outcome of today's briefing from the Department of Trade, Industry & Competition on input received during the most recent round of public consultations on reopened clauses. The purpose of making further changes to these clauses is to address President Cyril Ramaphosa's concerns about their consitutionality.
A series of meetings has been scheduled for May, starting with a briefing from parliamentary legal adviser Charmaine van der Merwe and the Department of Trade, Industry & Competition on submissions received in response to the most recent batch of reopened clauses.
No meetings took place.
According to an ambitious programme adopted last year and since replaced, the National Assembly's Trade & Industry Committee was planning to complete its work on the remitted Bill early next month. However, preparing a departmental response to more than 50 submissions on the latest batch of reopened clauses is taking longer than anticipated. This month's briefing has been cancelled. The revised programme now earmarks 30 March for an end to this leg of the process - coinciding with a parliamentary recess until 14 April, so MPs can attend to consituency work.
On 10 December 2021, an extension to the seven weeks originally allowed for public comment on the Bill's reopened clauses was communicated by email to stakeholders on a list compiled by the National Assembly's Trade & Industry Committee secretariat. Unfortunately, as a ReCreate SA tweet confirms, no changes were made to the deadline in advertisements on Parliament's website and one managed by the Parliamentary Monitoring Group (PMG) - or, presumably, to those featured in various mainstream media platforms. Parliament and PMG withdrew their advertisements on Friday 21 January 2022, when the original deadline expired. Amended to reflect the extended deadline, both advertisements were reinstated on 26 January - two days before the extended commentary period ended.
3 December 2021
The wording proposed for further amendments to the 2017 Copyright Amendment Bill was released with a request for public comment. The proposals stem from a response by the Department of Trade, Industry & Competition to stakeholder input on clauses identified by President Cyril Ramaphosa in the context of concerns about the Bill's constitutionality. They include amendments to the 1978 Act beyond the scope of the Bill and the President’s reservations.
1 December 2021
The National Assembly has granted its Trade & Industry Committee permission to amend the 1978 Copyright Act beyond the scope of the remitted 2017 Copyright Amendment Bill and President Cyril Ramaphosa's reservations about the constitutionality of certain clauses. During the debate (3:22:10), declarations of vote from opposition parties present drew attention to widespread frustration about the Bill's first passage through Parliament and the process now under way - which, in the view of DA MP Dean Macpherson, continues to be influenced by 'special interest groups', including Google. If he's right, this could be found to have compromised the integrity of the process - adding weight to the arguments of interest groups already considering a Constitutional Court challenge should the Bill ever become law. FF Plus MP Frederik Mulder believes Trade, Industry & Competition Minister Ebrahim Patel's fair use policy position, and that of his predecessor, Rob Davies, was taken expressly to serve the interests of 'partial stakeholders'.
Among other things, the ruling ANC’s Judy Hermans' declaration of vote underscored an ongoing reluctance on the part of many of her colleagues in the National Assembly's Trade & Industry Committee to get to grips with the Bill’s complex issues and fully understand their broader implications for creatives, as well as domestic and foreign investors. This was a worrying feature of the Bill's first passage through Parliament and has long been a broader concern. The fate of the 2013 Mineral & Petroleum Resources Development Amendment Bill and 2017 Road Accident Benefit Scheme Bill are cases in point, begging a disconcerting question that nevertheless does need to be asked. 'How often do ANC MPs bother to read written submissions from stakeholders opposing their party's policy position or try to understand why?'.
25 November 2021
This morning's National Assembly order paper features a reference to the Trade & Industry Committee's interim report, requesting permission to amend the 1978 Copyright Amendment Act beyond the scope of the remitted 2017 amendment Bill and President Cyril Ramaphosa's reservations about its constitutionality. However, if its position in the list of 'further business' and 'orders of the day' is any indication, the report doesn't appear to be a priority.
Whether it's considered and permission granted will determine how many amendments proposed by the Department of Trade, Industry & Competition are advertised for stakeholder input. On Tuesday, the committee is scheduled to finalise the wording of those on which members agree comments are required.
During yesterday's meeting, parliamentary legal adviser Charmaine van der Merwe presented a document recommending the wording for each amendment envisaged by the department. Members are now caucusing their parties on its contents.
21 November 2021
The National Assembly's Trade & Industry Committee has approached the House for permission to amend the 1978 Copyright Amendment Act beyond the scope of the remitted 2017 amendment Bill and President Cyril Ramaphosa's reservations about the constitutionality of certain clauses. The interim committee report required by the House was tabled on Friday.
16 November 2021
This largely inconclusive meeting focused on a presentation from Department of Trade, Industry & Competition Deputy DG Evelyn Masotja. Its purpose was to facilitate discussions on her department's proposals for addressing President Cyril Ramaphosa's concerns about the constitutionality of certain clauses.
Wednesday's meeting was cancelled, allowing members time to consult their party caucuses before beginning deliberations in earnest on Friday. They are expected to focus on each proposed amendment beyond the scope of the President's reservations.
If the committee sees merit in adopting one or more of these proposals, it will require permission from the House to do so. This will apply to:
removing the reference to 'wire' from certain certain clauses in the context of broadcasting standards
adding definitions of ‘accessible format copy’ and ‘authorised entity’, aligning the Bill with the Marakesh Treaty on access to published works for persons who are blind, visually impaired, or otherwise print-disabled
adding and defining the term 'lawfully acquired' in the context of specific exceptions from copyright protection, and
extending certain exclusive rights to published editions and computer programmes.
Masotja's briefing document was not made public, being for internal use only.
12 November 2021
Parliamentary legal adviser Charmaine van der Merwe briefed the National Assembly's Trade & Industry Committee on options for addressing President Cyril Ramaphosa's concerns about the constitutionality of some clauses. If pursued, in terms of parliamentary rules certain options would require the permission of the House to make amendments beyond the scope of the original Bill. Others would entail the reopening of new clauses for public comment. This would prolong the committee's work on the Bill well into next year - possibly requiring more public hearings.
As a result, the committee is reconsidering its programme of meetings on the way forward. If more clauses are reopened for comment, the committee is unlikely to complete its work on the Bill this year.
Meanwhile, the DA's Mathew Cuthbert has once again drawn attention to concerns in some circles that the process may be ideologically biased. In his view, stakeholders supporting the fair use approach to copyright have been given more opportunities to engage with the committee than those in the fair dealing camp. In that context, he referred to an apparently widely held perception that a leading academic at the Washington College of Law may have unduly influenced the entire four-to-five-year process. Cuthbert also alluded to the possibility that some South African fair use lobbyists may be receiving funding from a large international corporation based in the US, where fair use is the prevailing approach to copyright. Neither the academic nor the international corporation was named.
9 November 2021
On Tuesday, Trade, Industry & Competition Minster Ebrahim Patel demonstrated his hands-on approach to monitoring the passage of key Bills through Parliament. During a meeting of the National Assembly's Trade & Industry Committee, he presented a detailed document on his department's response to stakeholder input on clauses reopened in June for public comment. The Minister's intention was to 'arm' the committee with options he believes will maintain the 'delicate balance' between developmental and constitutional imperatives. This is noting that President Cyril Ramaphosa returned the Bill to Parliament based on concerns about the constitutionality of certain clauses and the process followed during its first passage through the National Assembly and NCOP, between 2017 and 2019 (Parliamentary Monitoring Group).
A briefing from parliamentary legal services scheduled for Tuesday was postponed to Friday 12 November, when members will be advised how to proceed should they decide the Bill requires further changes. Given the Minister's request for a meeting with parliamentary legal adviser Charmaine van der Merwe before the briefing, her input on Friday is likely to reflect some of his recommendations.
According to the latest committee meetings schedule, the committee intends discussing the available options on Tuesday 16 and Wednesday 17 November. Two days later, it will consider a revised version of the Bill reflecting any changes agreed. This tends to suggest that the National Assembly leg of the process is being fast-tracked. However, the Bill was re-tagged in June as Constitution section 76 legislation with implications for the provinces. As a result, once it has been revised to address the President's concerns and passed by that House, it will be the focus of a robust public participation process in the NCOP and provincial legislatures.
During that leg of the process, the NCOP's Trade & Industry, Economic Development, Small Business, Tourism, Employment & Labour Committee will be required to consider the entire revised Bill - not simply clauses identified by the President as being potentially unconstitutional and since amended by the National Assembly. The same requirement will apply to each provincial legislature.