Summaries of developments during the remitted Bill's second passage through Parliament are provided below, in reverse date order.
6 February 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. Could this have compromised the public participation process? Time will tell.
3 December 2021
The wording proposed for further amendments to the 2017 Copyright Amendment Bill was released on Friday 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, let alone 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 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 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. However, it is far down the list of 'orders of the day', following a question-and-answer session with President Cyril Ramaphosa.
Whether the report is 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 necessary interim committee report 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.