LAST-MINUTE COPYRIGHT BILL ENGAGEMENTS A CHARADE?

This article appeared in the 18 April edition of Legalbrief Today, under Policy Watch , 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.

HOW WELL WILL LAND REDISTRIBUTION BE MANAGED?

There have been two disturbing media statements from the Department of Rural Development and Land Reform this year pointing to the distinct possibility of trouble ahead as the South African government accelerates its land reform programme. The first, in February, was issued to allay fears of land claims affecting properties in the suburbs of Centurion – located south of Pretoria. The second, issued today (11 April), responds to a ‘continuous, disturbing spate of fraudulent and illegal demarcations, allocations and occupations’ affecting a farm in Limpopo province apparently owned by the state. This despite a Constitutional Court ruling in the department’s favour.

Both highlight the distinct possibility of government’s best intentions being hijacked and exploited by opportunists either intent on creating political instability or trying to make a fast buck. If they take place on a scale the authorities can’t control, they’re likely to be the final straw for large numbers of property owners in this country convinced they’re about to lose everything despite President Cyril Ramaphosa’s repeated assurances to the contrary. They will also scare off any remaining prospective investors.

The process of amending the Constitution to provide for land expropriation without compensation has only just begun. It could take more time than South Africans likely to benefit from accelerated land reform have been led to believe – by ill-informed, lower-ranking ruling party politicians in particular. Land invasions are already a relatively common occurrence and are likely to increase as patience wears thin. Life in South Africa could become even more fraught and precarious if fraudulent developers and mischievous rumour-mongers persist in their efforts to be added to the mix. This article by human rights advocate Tembeka Ngcukaitobi says it all.

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).

Image result for copyright amendment bill south africa
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.