COPYRIGHT AMENDMENT BILL | Policy Watch SA

THE REMITTED COPYRIGHT AMENDMENT BILL

THE PARLIAMENTARY PROCESS

(second time around, with occasional references to

the Performers' Protection Amendment Bill to which it's linked)

BRIEF SUMMARIES OF RECENT MEETINGS, IN REVERSE DATE ORDER

FROM NOVEMBER 2021

THE PARLIAMENTARY PROCESS (presentation in December 2022 to the South African Guild of Actors and others)

16 November 2023

On 14 November 2023, the National Assembly's Trade & Industry Committee was scheduled to be briefed by the department and parliamentary legal services on NCOP proposals for amendments to the Bills. This was to have been followed a week later by deliberations on whether or not to adopt the changes being recommended.

The 14 November meeting was cancelled at less than 24 hours' notice and has not been rescheduled.

29 September 2023

It's official! The Copyright Amendment Bill's 'F' version (passed on 26 September 2023 by the NCOP) has been sent back to the National Assembly's Trade & Industry Committee for concurrence - along with an 'F' version of the Performers' Protection Amendment Bill. At this stage, the committee has yet to set a date for its meeting on the revised Bills. However, it is expected to take place soon after 10 October 2023, when committees resume their work after yet another constituency break.

27 September 2023

An 'F' version of each Bill was passed yesterday during an NCOP sitting apparently overlooked by the media. Neither has Parliament itself issued a statement on what is essentially the penultimate step in the remitted Bills' long passage through that ostensibly august institution. The only available evidence of what took place is captured in bare-bones minutes of the sitting. But rest assured! Declarations of support for and opposition to the Bills said nothing that hasn't already been heard many, many times.

Yet to be published, the Bills' 'F' versions apparently reflect changes agreed by the NCOP committee concerned, having considered and largely rejected all recommendations made by the provincial legislatures in their negotiating mandates. This on the advice of Parliament's Constitution & Legal Services Office, endorsed by Department of Trade, Industry & Competition officials.

All that remains to be done before the Bills leave Parliament is for the National Assembly's Trade & Industry Committee to consider and endorse the changes made by its NCOP counterpart and unceremoniously adopted yesterday by the House.

19 September 2023

'Efforts to track the progress of the Performers’ Protection Amendment Bill and the Copyright Amendment Bill through stages of assessment and approval in provincial legislatures reveal a widespread failure of engagement with the issues at hand, a paucity of public information, and lack of interest on the part of many of our public representatives in their obligation to serve the interests of their constituencies.'

(Daily Maverick)

6 September 2023

The remitted Copyright and Performers' Protection Amendment Bills' tortuous passage through Parliament is about to come to an end. Grueling in the extreme for anyone monitoring the process closely, it has produced two revised Bills. Both were adopted by majority vote during yesterday's meeting of the NCOP committee concerned.

Mine is not to comment on their contents but simply to draw attention to the next procedurally required parliamentary steps.

The revised remitted Bills will be tabled in the NCOP with committee reports on the process followed in considering and making further amendments.
If adopted (which is likely) they will be sent to the National Assembly for concurrence and wait to be signed into law.
The amendment Acts emerging from this process will not come into force until regulations have been drafted, released for public comment, finalised and gazetted.
Provisions giving effect to the May 2022 Blind SA ConCourt judgment are expected to be commenced before the May 2024 deadline imposed for remedying defects in the Copyright Amendment Act. These defects are widely perceived to have restricted access to accessible format print material by visually impaired people for nearly fifty years.

Other than with valued clients, I am unable to share copies of the revised Bills or any related documentation.

29 July 2023

The NCOP Committee on Trade, Industry, Economic Development, Small Business, Tourism and Employment & Labour met several times during May and June 2023 to consider provincial negotiating mandates on both Bills.

Despite the concerns raised and recommendations made in mandates received from all eight ANC-controlled provincial legislatures, the Department of Trade, Industry & Competition's Evelyn Masotja and parliamentary legal adviser Charmaine van der Merwe managed to convince provincial representatives that the Copyright Amendment Bill in particular already addresses most of the issues raised (at least, in their view).

As a result, only minor changes are likely to feature in 'E' lists to be considered by the committee when it meets on 1 August 2023. Once adopted, these 'E' lists will be incorporated into an 'F' version of each Bill. The revised Bills will then be sent to the provincial legislatures, which will prepare their final mandates for the committee's consideration during a meeting provisionally scheduled for 5 September 2023.

The Western Cape Legislature has rejected both Bills and abstained from voting on each of the recommendations made by Masotja and Van der Merwe in their response to concerns raised in the negotiating mandates.

3 June 2023

Since nobody else is bothering to keep stakeholders informed of the latest developments in a way that's easily navigable and to the point, here we go ...

Of course, the most reliable source of free information remains the Parliamentary Monitoring Group website, with a page dedicated to each Bill and links to every parliamentary committee meeting on it since the year dot. But it does take time to find exactly the information you need.

Then there are the lobby groups, mostly focusing on the pros and cons of the Copyright Amendment Bill and tending to neglect its poor cousin, the Performers' Protection Amendment Bill:

Act Now South Africa (the new kid on the block) recently launched a website and Facebook account in a campaign intended to persuade the provincial legislatures not to support the Bills (because that's where we are in the process - the provincial negotiating and final mandates).
But to promote its own diametrically opposed position on the Bill, ReCreate has been running a website and Twitter account for years, campaigning for the Bill to be passed as soon as possible.
The Copyright Coalition of South Africa followed with a website and Twitter account campaigning for the Bill to be fixed or stopped. (By the way, this lobby group - which began as the Coalition for Effective Copyright - still hasn't taken down its original site, the contact details on which no longer work).

At the time of writing, not one of these lobby group websites included a link to the most recent version of the Copyright Amendment Bill - and not one featured an updated programme of meetings planned for the final leg of its second passage through Parliament.

Against that backdrop, for the benefit of anyone who still cares, here are the latest dates for a parliamentary process now expected to continue well into September 2023:

06 June: The NCOP committee will meet for the second time to consider the Department of Trade, Industry & Competition's response to all nine provincial legislatures' negotiating mandates on the 'D' version of each Bill.
13 June: The NCOP committee will vote on which of several key recommended amendments in the provincial negotiating mandates are to be reflected in revised versions of the Bills (at this stage, we can't assume either Bill will be revised).
20 June: The NCOP committee will consider an 'E-list' for each Bill reflecting any amendments agreed.
The revised Bills will then be sent to the provincial legislatures, which will have until September to prepare their final mandates.
5 September: The NCOP committee will consider and vote on the final mandates.

Here are the latest versions of each Bill:

23 May 2023

All eight ANC-controlled provincial legislatures tabled negotiating mandates supporting both Bills. Five nevertheless recommended changes to the Copyright Amendment Bill, with four calling for a thorough socio-economic impact assessment.

Against that backdrop, the NCOP committee has agreed the following programme for the reminder of the parliamentary process:

On 30 May 2023, the Department of Trade, Industry & Competition’s Evelyn Masotja and parliamentary legal adviser Charmaine van der Merwe will each present their response to recommendations included in the provincial negotiating mandates.
On 13 June 2023, the committee will consider and adopt a revised version of each Bill, prepared by Van der Merwe.
The revised Bills will then be sent to the provincial legislatures for consideration.
Only when Parliament reconvenes on 4 September 2023 will a date be set for the provincial legislatures to table their final mandates on both Bills.

21 May 2023

'Poor communication undermines provincial hearings on Copyright and Performers’ Protection Amendment Bills' (Daily Maverick)

9 May 2023

The latest parliamentary committee meetings schedule has confirmed that provincial negotiating mandates are now expected to be considered on 23 May, and final mandates the following week.

7 May 2023
As the final leg of this marathon parliamentary process (seven years, intermittently), takes its course, increasingly, emails to committee support staff in the provincial legislatures are being ignored. When they're answered, requests for the dates of key meetings are often denied. This despite a legislature's constitutional obligation not to exclude the public or the media from a committee meeting 'unless it is reasonable and justifiable to do so in an open and democratic society' (section 118).
Whether it's reasonable and justifiable to close meetings at which negotiating mandates will be formally adopted is a moot point. On such occasions, some provincial legislatures seem quite comfortable with the presence of stakeholders and their representatives. But most find the prospect unnerving. It's not clear why.

On 16 May, the NCOP Committee on Trade, Industry, Economic Development, Small Business, Tourism and Employment & Labour is scheduled to consider all nine provincial negotiating mandates on the Bills. At least two legislatures may well need more time, mainly because they only concluded their public hearings on Tuesday (2 May). A week later, the committee expects to consider all nine final mandates. In fact, only five mandates supporting the Bills are needed for them to be passed.
Against that backdrop, 1 June 2023 has been earmarked (albeit provisionally) for both Bills to be debated at an NCOP plenary sitting and passed.

27 April 2023

A report compiled on behalf of the Committee on Trade, Industry, Economic Development, Small Business, Tourism and Employment & Labour has been tabled in the House for consideration at its next plenary. It is a summary of views articulated during the committee's own hearings and in submission made to the committee itself.

It does not include any party-political positions. Neither does it deal with input received by the provincial legislatures during hearings concluded in most areas but still under way in others.

It is the responsibility of each provincial legislature to prepare a report on its hearings and - informed by the input received - to develop a negotiating mandate. Provincial mandates will then be considered by the NCOP committee, and any changes to the Bills supported by at least five provinces will be made.

There may be none. There may be several.

The NCOP committee report has been circulated to MPs but has not been published.

22 April 2023

The North-West Legislature has confirmed that on 2 May 2023 it will conduct public hearings on the Bills in Zeerust, Matlosana, Mmbana-Taung & Rustenberg. Between 25 April and 2 May 2023, the Free State Legislature will hold hearings in Qwa-Qwa, Sasolburg, Welkom and Bloemfontein. These are the only provincial hearings yet to be conducted in anticipation of a meeting on 16 May at which the NCOP Committee on Trade, Industry, Economic Development, Small Business, Tourism and Employment & Labour will formally receive each provincial legislature's negotiating mandates on the Bills. If the legislatures propose changes to

either Bill and their proposals are endorsed by more than four other provinces, this could prolong the NCOP committee process. At this stage, however, the NCOP committee is expected to consider a final mandate from each provincial legislature at a meeting scheduled for 23 May 2023.

12 April 2023

The North-West, Free State, Limpopo and Northern Cape provincial legislatures are still in the process of conducting public hearings on the two Bills - with North-West being the only legislature not to have announced any dates (not even one for written submissions).

The Limpopo Legislature began a programme of five hearings today (12 April) and expects to conclude its public participation process on 19 April 2023.

On 25 April 2023, the Free State Legislature is scheduled to hold the first of four hearings, which are expected to end on 2 May 2023.

The Northern Cape Legislature held a combined hearing for all districts on 30 March 2023. It was a hybrid event attended physically by some stakeholders and via Microsoft Teams by others. Unfortunately, technical challenges interfered with virtual presentations. These were postponed and will now take place on 19 April 2023.

On 18 April 2023, the NCOP Trade, Industry, Economic Development, Small Business, Tourism and Employment & Labour Committee is scheduled to be briefed on input made during last month's parliamentary hearings and in written submissions sent to the committee itself.

18 March 2023
The NCOP's Trade, Industry, Economic Development, Small Business, Tourism and Employment & Labour Committee has now concluded its own programme of three parliamentary hearings on the Bills.
On 18 April, Department of Trade, Industry & Competition (DTIC) officials are expected to present their perspectives on input received during each hearing, as well as the contents of all written submissions. This briefing was originally scheduled for 28 March, as indicated in Parliament's yet-to-be-amended list of meetings for the remainder of the term.
Meanwhile, provincial hearings have been concluded in the Western Cape, Mpumalanga and, as far as we know, also in the Eastern Cape.
KwaZulu-Natal began its own hearings programme on Wednesday 15 March with an event catering for the districts of Ugu and Harry Gwala. This hearing was the first outside a provincial capital to be livestreamed. Another first is that most of its proceedings were conducted in an African language (in this case, isiZulu).
The Gauteng Legislature recently rescheduled two postponed hearings, which are now expected to take place on 24 and 31 March.
In the Northern Cape, the first hearing is scheduled for 30 March and will be accessible via Microsoft Teams. No other dates have been set at this stage.
The Limpopo Legislature is apparently in the process of planning hearings, but no dates are available. On 17 March, DTIC officials were expected to brief members of the committee concerned on the contents of each Bill.
There has been no word from the North West and Free State Legislatures on what, if any, progress has been made with planning or conducting hearings on the Bills in those provinces.

16 March 2023

During a hearing on 14 March, input from the University of the Western Cape's (UWC's) Gender Equity Unit probably made uncomfortable listening for many of the Copyright and Performers' Protection Amendment Bills' more conservative stakeholders. But given the often-overwhelming difficulties facing most ordinary South Africans, perhaps it's appropriate to reflect on the frustration and anger underpinning some of the sentiments expressed.
Peppered with references to South Africa's colonial and apartheid past, the presentation's description of industry leadership across the entire creative sector was far from complimentary. Apparently, under the prevailing climate of 'neo-colonialism' black South African artists, performers and writers - and the custodians of South Africa's traditional/indigenous knowledge - continue to be treated as 'less than human'. It was in this context that the local and international apparently white-male-dominated corporates controlling these industries were accused of practices deliberately intended to 'exploit' and 'subjugate' black creatives. And according to the UWC's Gender Equity Unit, 'publishers, pharmaceuticals and recording companies' are perceived to be the worst offenders. Which is not to suggest that these allegations are well-founded, apply to a specific industry or all three and are justifiable. It is simply to acknowledge their existence - and, in doing so, perhaps to ask (rhetorically, of course) if they in any way informed the process of drafting these Bills and are likely to have resonated with the experiences of committee members.

With that and past injustices in mind, the unit's representatives expressed support for the position taken by academics from several local universities in a presentation made earlier that day.

Unfortunately, however, it would seem that neither the group of academics concerned nor any other supporter of the two Bills has told the UWC Gender Equity Unit about the fate of what are referred to as the Copyright Amendment Bill's 'retrospectivity clauses'. Providing for the retrospective payment of royalties to musicians and performers whose contracts (signed during the apartheid era) were open to abuse, these clauses were removed from the Bill when it was returned to Parliament.

So, in endorsing these now non-existent clauses the presentation cast a long shadow of doubt over the integrity of academics and lobby groups who should have kept their supporters informed of the latest developments. After all, several of these lobbyists participated in a hearing held virtually on 1 March by the Mpumalanga Legislature - when different representatives of the UWC's Gender Equity Unit also endorsed 'restrospectivity clauses' they clearly believed at the time to be intact. Something is wrong. Could some stakeholders in the pro-Bills camp have been misled?

All this notwithstanding, during the NCOP committee's final hearing members were subjected to a mixed bag of opinions, most of which were critical of the Bills. They are summarised in the documents below (in alphabetical order):

Kristel Birkholtz (classical violinist)

Creative Commons

Joint Academic Opinion

MultiChoice

National Association of Broadcasters

Netflix

Recording Industry of SA

Research ICT Africa

Southern African Music Rights Organisation

Western Cape Government

10 March 2023

Held two weeks after the first NCOP Trade & Industry, Economic Development, Small Business, Tourism and Employment & Labour (what a mouthful) Committee hearing on the two Bills, the

second day-long opportunity for public participation in the parliamentary process itself may well have featured presentations from different stakeholders - but was anything new said?

Frankly, no. Although the proceedings did include some refreshingly candid input from Professors Sadulla Karjiker and Owen Dean (South Africa's doyen of intellectual property and copyright law, with forty years' experience practising it). Not only were their presentations thought provoking; they were entertaining to boot.

Of course, Karjiker can always be relied upon for good theatre. But this time around his input was complemented and driven home by a barrage of sardonic remarks from Dean undoubtedly targeting the Bills' drafters. Between them, the two Stellenbosch University Anton Mostert School of Intellectual Property Law academics decimated the Bills and the tortuous parliamentary process to which stakeholders across the board have been subjected for more than a decade.

But it's not for me, a mere scribe, to critique their input or that of other presenters. Suffice to say that, if I was a creator whose material had been copied and made freely available by some 'big tech' organisation in the US (robbing me of the income I'd hoped it would generate) I would be devastated. I would be enraged if the copyright regime in my own country had facilitated such daylight robbery by making it legal (albeit only in certain rather loosely defined circumstances open to subjective interpretation and abuse by default). This is Africa, dudes ... So, if I was brave enough sue the 'big tech' company responsible I'd want someone like Dean or Karjiker in my corner.

One foolish scholarly researcher who shall remain nameless (an American) left nobody in any doubt whatsoever that - in feeding himself and his family - he absolutely does not rely on commercialising his work. Which he doesn't bother to do, being in the fortunate position of being able to conduct scholarly research for the sheer joy of it. Well, bully for him! I wonder how many black African scholarly researchers living on the continent of their origin or birth can say the same?

That awkward point having been made, here are the other presentations from 7 March 2023 (in alphabetical order, with those only recently made available highlighted in yellow):

Baker McKenzie

Congress of South African Trade Unions

Composers, Authors & Publishers Association

Dick Kawooya

Licensing Executives Society of South Africa

Tomas Lipinski

Thulani Mbatha

Publishers Association of SA

Scholarly Horizons

South African Guild of Actors

Writers Guild of South Africa

7 March 2023

'The Copyright Amendment Bill process may have been scuppered by a procedural blunder in the provinces, but it limps on regardless' (Daily Maverick)

23 February 2023

When all is said and done, the first day of NCOP Trade & Industry, Economic Development, Small Business, Tourism and Employment & Labour Committee hearings on the Copyright and Performers' Protection Amendment Bills could turn out to have been a game changer.

Notwithstanding well-researched presentations from the representatives of several industries affected by the Bill's more contentious clauses, concerns expressed by the SAA Institute of Intellectual Property Law's Stephen Hollis deserve to be taken very, very seriously. After all, he spoke on behalf of practising attorneys well-versed in the nuts, bolts and informed interpretation of complex intellectual property legislation not only in this country but internationally.

Those of us still smarting from the injustices of South Africa's inglorious past under apartheid understandably want redress for the musicians and performers so badly exploited then and since. But as Dramatic, Artistic & Literary Rights Organisation CEO Lazarus Serobe remarked during his oral representation, by adopting a one-size-fits-all approach and lumping creatives across the board into a homogeneous mass, the Copyright Amendment Bill is attempting to address the legitimate needs of one category of creatives at the expense of another. And where would any of them be without entrepreneurs willing to take the financial risk entailed in producing and marketing a blockbuster local movie, bestselling novel or chart-topping album?

Surely stakeholders lobbying for the Bill's urgent adoption, enactment and implementation as it now stands can see the merits of a more nuanced approach to copyright reform and a win-win outcome for all affected industries and creatives? And as an aside, perhaps it would be prudent for their presentations to rely less on anti-apartheid sentiment, South African Democratic Teachers Union (Sadtu) general secretary Mugwena Maluleke's being a case in point. Could we all please stick to the facts? It may well be nearly six years since the South African Human Rights Commission posted this Daily Maverick article on its website ("SA's most controversial union faces human rights probe"), but how much has changed? Sadtu has seen better days (not many, it's true) - and even they were long before its present general secretary's time. According to his presentation, the union's members see themselves as 'revolutionary professionals whose fundamental task remains the total socio-economic emancipation of our people utilising the classroom as an effective site of struggle'. Right ...

Wits academic Malebakeng Forere has no such axe to grind - and impressive, hard-earned credentials to boot. She would like to see the committee working with stakeholders on 'improving the most divisive clauses' in the Copyright Amendment Bill. Here's hoping its members heed her advice.

At the time of writing, the following presentations were available (in alphabetical order) (presentations subsequently made available):

Artists Unite

Association of Communication & Advertising (with the Commercial Producers Association)

Blind SA

Dramatic, Artistic & Literary Rights Organisation

eMedia Holdings

Library & Information Association of SA

Prof Malebakeng Forere (University of the Witwatersrand)

Independent Producers Organisation (with the Independent Black Filmmakers Collective and Animation SA)

SA Democratic Teachers Union

SA Institute of Intellectual Property Law

16 February 2023

'Time for provincial legislatures to wake up and ensure live-streaming of public hearings on controversial bills' (Daily Maverick)

15 February 2023

Dates, times and venues for hearings in Gauteng and Mpumalanga have been added to the Parliamentary Monitoring Group website notice calling for written submissions on the Bill. Open each link and scroll down to find them.

6 February 2023

The Parliamentary Monitoring Group has published calls for written submissions on the Bill from four provincial legislatures: Western Cape, Northern Cape, Mpumalanga and Gauteng. The separate provincial notices also call for submissions on the Performers' Protection Amendment Bill.

The Western Cape is the only provincial legislature to have begun public hearings.

10 November 2022

The NCOP's Committee on Trade & Industry, Economic Development, Small Business, Tourism and Employment & Labour has issued a notice calling for written submissions by 27 January 2023 on the Copyright Amendment Bill's 'D' version and a 'D' version of the Performers' Protection Amendment Bill. Both versions reflect changes made by the National Assembly's Trade & Industry Committee with the aim of addressing reservations expressed by President Cyril Ramaphosa about the constitutionality of certain clauses.

The President's concerns about procedures followed during the Bills' first passage through Parliament (2017 to 2019) were addressed by retagging them as section 76 legislation affecting the provinces. As a result, the public participation process on each revised Bill will include hearings in each provincial legislature. However, the provincial legislatures may not begin processing the Bills until they have received a report on the NCOP hearings - which are expected to take place in late February and early March 2023.

While Department of Trade, Industry & Competition provincial briefings on each Bill were scheduled for last week, only the Western Cape's was recorded. The document presented differs significantly from the version used at the NCOP committee's 25 October workshop.

2 November 2022

'Confused about the complexities of the Copyright Amendment Bill? So, it seems,

are many parliamentarians' (Daily Maverick)

26 October 2022

Yesterday's NCOP Trade & Industry, Economic Development, Small Business, Tourism and Employment & Labour Committee workshop was not on the Performers' Protection Amendment Bill itself, as advertised, but on the Act it seeks to amend. Shortly before the workshop broke for lunch, the committee secretariat tabled a proposed 2022/23 programme for processing the Bill's 'D' version and, of course, the 'D' version.of the Copyright Amendment Bill to which it is inextricably linked.

Unfortunately, however, several key procedural steps in the process were omitted. Most notable among them is the Department of Trade, Industry & Competition's response to input received during public hearings on each Bill. This could take some time to prepare and will affect dates for each ensuing step of the process. So, almost inevitably, the May 2023 date for considering final provincial mandates on each Bill will fall away - possibly prolonging the NCOP leg of the remitted Bills' passage through Parliament by several weeks (or even months).

Nevertheless, at least the committee appears to have agreed that its secretariat should issue notices early in January 2023 calling for public comments on each Bill in its entirety. The deadline for input has been set at 27 January 2023, with public hearings following in late February and early March, held by the committee itself. The provincial legislatures will then embark upon their own public participation processes.

Presentations at the workshop included:

overview of the Performers' Protection Act (Owen Dean)
overview of the Performers' Protection Act and the Copyright Amendment Act (Kadi Petje, for the Companies & Intellectual Property Commission), and
briefing on the two Bills (Evelyn Masotja, for the Department of Trade, Industry & Competition).

24 October 2022

As things turned out, last week's workshop was not on the Copyright Amendment Bill at all and was never intended to be, panellists having been asked expressly not to talk about it. Indeed, according to NCOP Trade & Industry, Economic Development, Tourism, Small Business Development and Employment & Labour Committee chair, Mandla Rayi, by the time the workshop took place he and his colleagues were still waiting to receive the Bill's 'D' version (despite it having been passed six weeks earlier by the National Assembly).

Against that backdrop, the workshop focused on four aspects of copyright law believed by its organisers to be most useful in assisting committee members to better understand the Bill's complex technical issues:

the basics of copyright law (Owen Dean)
exceptions and limitations (Tobias Schonwetter)
collecting societies and the Copyright Tribunal (Desmond Oriakhogba), and
copyright in the age of technology and the Internet (Malebakeng Forere).

Apparently, only Dean's presentation was circulated to members beforehand - which may explain why so few questions were asked and why some did not relate to the Bill at all.

One of the most probing came from the DA's Timothy Brauteseth, who asked about the possibility of finding a compromise between fair dealing and fair use as two diametrically opposing approaches to copyright law.

According to Dean, the fair dealing approach requires Parliament to make the necessary legislation - whereas the fair use approach provides sufficient latitude for the courts to do so. In his view, it is not possible to reconcile the two.

However, in his own presentation Schonwetter had already referred to a 'hybrid' approach as being most suited to South Africa's unique circumstances - at least in his view. Although he did not elaborate, during the National Assembly leg of the process the term 'hybrid model' was often used to describe an approach perceived by most members of the committee concerned to balance the interests of copyright owners and those of members of the public seeking access to their work. Not all stakeholders agree.

A workshop on the Performers' Protection Amendment Bill's 'D' version is scheduled to take place tomorrow, Tuesday 25 October, at 10:00.

10 October 2022

In anticipation of the next leg of the Bill's second passage through Parliament, the NCOP Committee on Trade & Industry, Economic Development, Small Business Development, Tourism and Employment & Labour is scheduled to hold two day-long workshops this month: on 18 and 25 October at 10:00, via Zoom. Both workshops will also cover the related Performers' Protection Amendment Bill.
This is the first time a committee workshop on the Copyright Amendment Bill has been included in Parliament's official meetings list. Workshops held last year by the National Assembly's Trade & Industry Committee (and in 2017 by its predecessor in the 5th democratic Parliament) appear to have been closed to the media and other members of the public.
Presumably, the purpose of the workshops is to help NCOP committee members familiarise themselves with the myriad complex, technical amendments proposed and the policy position underpinning them. This is apparently what former National Assembly Trade & Industry Committee chair Joan Fubbs had in mind when, during a meeting on 30 May 2017, she mentioned a need at the time for a 'training workshop'. No workshop was ever officially scheduled.
However, during a 9 November 2021 National Assembly Trade & Industry Committee meeting on the remitted Copyright Amendment Bill, the DA's Mathew Cuthbert expressed concern about a perceived bias in the choice of presenters at a second workshop apparently held sometime between February and August that year. According to committee secretary, Andre Hermans, the same presenters had facilitated the 2017 workshop - which may have been held informally during the winter recess (although he did not say as much).
Perhaps each provincial legislative committee responsible for trade and industry matters will hold workshops to ensure that provincial mandates on the Bills are adequately informed?

10 September 2022

Media reports claiming that Parliament has passed the Copyright Amendment Bill and Performers' Protection Amendment Bill are misinformed. 'D' versions of each Bill (see links in the post below) were passed by the National Assembly on 1 September. They are now before the NCOP Committee on Trade & Industry, Economic Development, Small Business Development, Tourism, Employment & Labour - a step in the process confirmed in parliamentary papers circulated on 2 September.

The process normally followed by an NCOP committee dealing with a section 76 Bill is:

a briefing from the department concerned (sometimes with the Minister or Deputy Minister) and a parliamentary legal adviser
deliberations on whether to hold committee hearings
a call for written submissions from stakeholders (if the committee decides to hold its own hearings)
committee hearings (if deemed necessary)
feedback from the department concerned on written submissions and oral representations
the Bill's referral to each provincial legislature
the Bill's referral to each existing provincial legislature committee dealing with the portfolio concerned (in the case of these Bills, it will be the existing committee responsible for Bills affecting trade and industry)
calls from the committees concerned for written submissions from stakeholders in each province
public hearings by each existing provincial legislature committee dealing with the portfolio concerned (in the case of these Bills, it will be the existing committee responsible for Bills affecting trade and industry)
feedback from government officials to each provincial committee on written submissions and oral representations received by that committee
a provincial committee report to its legislature recommending that the Bill be endorsed or opposed, stating why and possibly recommending further amendments
a vote on the Bill by each provincial legislature
a report to the NCOP committee from each provincial legislature giving its representative in that committee a mandate to adopt or reject the Bill on its behalf
an NCOP committee report to the House reflecting the outcome of the provincial process (it is necessary for at least five provincial legislatures to vote in favour of a Bill for it to be passed by the NCOP)
if the NCOP passes the Bill subject to more amendments recommended by the NCOP committee, the Bill is referred back to the National Assembly committee for those recommendations to be considered
if the National Assembly committee agrees with the NCOP's recommendations, the Bill is then deemed to have been passed by both Houses
if the NCOP rejects the Bill and it was tabled in the National Assembly (which the Copyright Amendment Bill and Performers' Protection Amendment Bill were) the Bill is referred to Parliament's Mediation Committee.

1 September 2022

The Copyright Amendment Bill's 'D' version was passed yesterday by the National Assembly and sent to the NCOP, where it is expected to be the focus of public hearings not only in the NCOP committee concerned but also in the relevant committees of all nine provincial legislatures. The Performers' Protection Amendment Bill's 'D' version (inextricably linked to the Copyright Amendment Bill) was also passed and is now before the same NCOP committee. Yesterday's proceedings on the Bills (beginning at 3:31:16/1:55:33) were limited to declarations of vote on both Bills, with the DA calling for a division of the House on the Copyright Amendment Bill so that votes could be taken. These are reflected in the minutes.

29 August 2022

Parliament has confirmed that, on Thursday 1 September, the National Assembly will consider the Copyright Amendment Bill's 'D' version. Tabled in the House in June by the Trade & Industry Committee, an accompanying report records the process followed in addressing President Cyril Ramaphosa's reservations about the constitutionality of procedures followed during the Bill's first passage through Parliament, as well as certain key clauses.

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.

April 2022

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.

March 2022

No meetings took place.

February 2022

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.

January 2022

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.

Detailed Legalbrief Policy Watch reports on both pre-November 2021 parliamentary processes are accessible only to Legalbrief Today subscribers and can be found here

15 August 2021

'South Africans deserve to know why the Copyright Amendment Bill has languished in bureaucratic limbo for four years' (Daily Maverick)

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