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  • Pam Saxby

ON THE COPYRIGHT AMENDMENT BILL ...

Updated: Nov 1, 2020


Copied below - in order of publication date from May 2017, when the Copyright Amendment Bill was tabled in Parliament - are all Policy Watch reports on the Bill featured in Legalbrief Today.


Juta Law (the owner of Legalbrief) holds the copyright to these articles, which are reproduced with their permission. I wrote them. All documents embedded in the text were made available to members of the public attending the meetings concerned. They are sourced from the Legalbrief media store and can be accessed without a subscription, being public documents.


The articles do not paint a positive picture of the parliamentary process. It was deeply flawed, as has been reported regularly in the mainstream media.


President Cyril Ramaphosa returned the Bill to Parliament in June 2020, for reasons articulated in this letter to National Assembly Speaker Thandi Modise.



Legislation: Copyright Amendment Bill tabled

Publish date: 18 May 2017 Issue Number: 4223 Diary: Legalbrief Today The Copyright Amendment Bill was formally tabled in Parliament this week – almost a year after its explanatory summary was gazetted and a revised draft version of the Bill unceremoniously submitted to both Houses, reports Pam Saxby for Legalbrief Policy Watch. Having been referred to the committees concerned, the draft document and all references to it on the Department of Trade and Industry website then disappeared. As Legalbrief Today has already reported, no explanation was forthcoming. According to a memorandum on its overarching objectives, the proposed new statute seeks to provide a legal framework on copyright and related issues that: is accessible to the producers, users and consumers of artistic works; protects the economic interests of authors and creators … against infringement’; and aligns copyright with ongoing developments in digital technology. This is noting recommendations made in the 2011 Copyright Review Commission report for a co-ordinated approach towards intellectual property (IP) matters across the various government departments concerned – in line with international best practice and related treaties. Against that backdrop, among other things the Bill provides for: the establishment of an IP tribunal; procedures for settling royalty disputes; and the accreditation and registration of collecting societies. To be tasked with settling disputes ‘in all areas of the IP domain’, the tribunal will be expected to provide ‘speedy redress to rights holders’ – addressing shortcomings in the effectiveness of the existing dispute resolution process for artistic IP in particular. It will function along the lines of the Competition Tribunal and similar bodies.


Legislation: Parliamentary hearings on Copyright Bill next month

Publish date: 30 May 2017 Issue Number: 4231 Diary: Legalbrief Today The Copyright Amendment Bill will be the subject of parliamentary hearings in the National Assembly’s Trade and Industry Committee on 27, 28 and 29 June – in anticipation of which written submissions are now being sought from interested and affected parties, reports Pam Saxby for Legalbrief Policy Watch.  Tabled in the National Assembly this month, the Bill provides among other things for the establishment of an intellectual property (IP) tribunal with the aim of addressing shortcomings in the effectiveness of the existing dispute resolution process for artistic IP in particular. It will function along the lines of the Competition Tribunal and similar bodies. According to a committee notice announcing the hearings, once in force the proposed new statute will also: regulate the management of digital rights; prohibit certain conduct relating to ‘technological protection measures’; and make certain activities associated with ‘copyright management information’ illegal. As Legalbrief Today has already reported, the Bill responds to recommendations in the 2011 Copyright Review Commission report for a coordinated approach towards IP matters across the various government departments concerned – in line with international best practice and related treaties. The deadline for input from stakeholders and members of the public has been set at 19 June.


Legislation: Copyright, Performers Bills do not ‘restrict’ rights

Publish date: 31 May 2017 Issue Number: 4232 Diary: Legalbrief Today The Copyright Amendment Bill and Performers Protection Amendment Bill do not ‘in any way restrict or affect the rights provided … by any other law relating to copyright in literary and artistic works’, according to a document circulated at yesterday’s meeting of the National Assembly’s Trade and Industry Committee. While public hearings on the Performers Protection Amendment Bill have already taken place, the Copyright Amendment Bill was only recently tabled in Parliament and tended to be the focus of a briefing in which the Department of Trade and Industry’s deputy director-general for consumer and corporate regulation, MacDonald Netshitenzhe, linked each of its key clauses to the issue concerned, reports Pam Saxby for Legalbrief Policy Watch. Among other things, the document gives some insight into the thinking behind provisions in the Bill ‘pertaining to the payment of royalties in respect of intellectual property rights’. Clause 9 proposes that the author of an artistic work should ‘enjoy the inalienable resale royalty right’ on the commercial use of that work, subsequent to its first transfer. Clause 10 spells out a raft of situations in which it is envisaged that the ‘fair use’ of a work or its performance would not infringe its copyright. Interestingly, SA has apparently not ratified all treaties and conventions related to either Bill. While Netshitenzhe did not elaborate, he did ask committee members to ‘consider’ the matter. As Legalbrief Today has already reported, parliamentary hearings on the Copyright Amendment Bill have been scheduled for 27, 28 and 29 June – and written submissions invited with that in mind. The perceived shortcomings of existing legislation spelled out in a memorandum on the Bill’s objects include: accessibility to educators and researchers; ‘ineffective protection’ for the originators of creative works, especially in respect of their economic rights; and the ‘abuse’ and ‘vulnerabilities’ associated with a ‘power imbalance’ in the music industry. Since the Bill’s proposals for addressing these may not necessarily appeal to all creative sector stakeholders, the hearings could raise some controversial issues.


Legislation: Copyright Amendment Bill under fire

Publish date: 02 August 2017 Issue Number: 4276 Diary: Legalbrief Today Yesterday’s first round of parliamentary hearings on the Copyright Amendment Bill included input from two academics whose differing perspectives on the proposed new piece of legislation nevertheless clearly illustrated the fundamental importance of creating a more appropriate balance between proprietary rights and access to a more open system. While Stellenbosch University’s Sadulla Karjiker was unapologetic in his scathing attack on a Bill he believes to be ‘ill considered’, ‘ineptly drafted’ and – ‘riding roughshod’ over IP rights – a disincentive to the ‘greater monetarisation’ of IP, the University of Cape Town’s Tobias Schonwetter – acknowledging the need to realistically ‘reward’ creativity – nevertheless emphasised the importance of crafting legislation that responds more effectively to the South African context as a developing country with ‘unique challenges’. Both presentations drew attention to the Bill’s erroneous use of the terms ‘author’, ‘rights owner’ and ‘user rights’, as well as to flaws in provisions dealing with resale royalty rights – pointing to the likelihood of substantive redrafting. According to Schonwetter, most concerns about the existing system expressed by ‘real grassroots creators’ are not necessarily copyright issues but instead relate to ‘unfair competition, (the) abuse of privacy rights, defamation, and … exploitative contract clauses’. Against that backdrop, he warned that – in processing the Bill – National Assembly Trade and Industry Committee members should be wary of ‘smokescreens’ created by some interest groups to preserve the status quo. This notwithstanding, a submission from the South African Institute of IP Law (SAIIPL) observed that – in its present form – the proposed new statute could undermine the very rights of ‘authors, creators, songwriters, artists and other individuals’ it ‘ostensibly’ seeks to improve and protect: a view shared by Karjiker. Presenting on behalf of SAIIPL and the Law Society of SA, Esmé du Plessis – while supporting moves to update and modernise the 1978 Copyright Act – emphasised the importance of making amendments that are ‘legally correct, ‘effective’ and likely to result in ‘fair and equitable’ outcomes. Noting ‘contentious policy issues’ in a Bill she believes will create legal uncertainty, Du Plessis expressed reservations about the ‘US-based fair-use system’ – the adoption of which, in her view, could lead to ‘increased litigation’ and ‘interpretation difficulties’ inevitably ending up in the Constitutional Court. She urged committee members to consider appointing a ‘task team of experts’ to assist in addressing this and related issues. Proceedings having been delayed in the absence of a quorum, time constraints prevented any meaningful engagement between presenters and committee members, many of whom remained conspicuously absent and could well be rapped over the knuckles if this becomes a habit. Fortunately, however – recognising the value of input from legal experts in particular – committee chair Joan Fubbs alluded to opportunities for further input as the process unfolds. Hopefully, there will be a better MP turnout at tomorrow’s hearings and those scheduled to take place on Friday.


Legislation: Reworked Copyright Bill to be more focused?

Publish date: 21 August 2017 Issue Number: 4288 Diary: Legalbrief Today While a ‘B’ version of the Copyright Amendment Bill – if more professionally drafted – may well address the numerous technical shortcomings of its predecessor, it remains to be seen whether the National Assembly Trade and Industry Committee team tasked with overseeing its development by a considerably strengthened Department of Trade and Industry drafting team can deliver on their mandate in the time available. This is especially given the complex matters raised during days of often highly-charged parliamentary hearings. Appropriately amended legislation must be in place before the end of the current administration, according to Director-General Lionel October. With that in mind, during Friday’s committee meeting on the controversial Bill October proposed a phased approach to addressing ‘the most complex issue in the global trade debate’ – which would have seen the sub-committee developing a far less ambitious piece of legislation had his suggestions not been rejected out of hand. If they had they been accepted, the ‘B’ Bill would have focused on key 2011 Copyright Review Commission report recommendations for ‘the greatest areas of need’: a ‘properly regulated’ music industry; protection for ‘vulnerable people’; accommodating ‘digital change’; and aligning the Act with international treaties. The vexed issue of fair-use/dealings would have been left to a separate Bill at a later stage in the process, giving the department more time to convince ‘powerful vested interests’ of the merits of a system that has worked so well for the US economy. And perhaps most interestingly, in view of ongoing funding constraints there would have been no provision for a dedicated copyright tribunal. Instead, the ‘B’ Bill would have sought to empower the Commission for Companies and Intellectual Property to regulate collecting societies. Presumably, October would never have proposed a more focused, less ambitious Bill had he not been mandated to do so. When his recommendation of a phased approach by way of successive amendment Bills was howled down by ANC committee members, observers were left wondering what went wrong. When the DA’S Dean Macpherson insisted that the department explain how such a flawed piece of proposed new legislation had found its way to the committee in the first place, he was told that it had been drafted ‘in-house’ – and, in keeping with government’s commitment to capacity building, without any input from ‘consultants’. Perhaps that was behind the committee’s decision to include a ‘panel of technical experts’ in the team now tasked with overseeing the ‘B’ Bill’s development. Whatever the case, a presentation from parliamentary legal adviser Charmaine van der Merwe on concerns raised during the public hearings left no one in any doubt about the unintended consequences of ‘turning copyright on its head’ without fully understanding the issues. Fortunately, she will be among the reinforcements brought in to drive the drafting process. She will be joined by deputy-director for intellectual property law and policy in the department’s consumer and corporate regulation division, Meshendri Padyachy, whose input on Friday pointed to the possibility of some significant improvements in the next version of the Bill. These could include: ‘reconciliation’ with provisions in the Intellectual Property Rights Act; and a ‘principled position’ on commissioned work based on the equal treatment of stakeholders, with ‘contractual arrangements’ as the ‘first option’. Concerns about the definition and application of the terms ‘user’, ‘creator’ and ‘author’ will be addressed. As a media statement on the meeting has since confirmed, the ‘it is within (the committee’s) power to do what is best for all South Africans, even if this includes rewriting many clauses in the Bill’. Going forward, members will strive to ‘ensure the development of robust legislation that protects and benefits all South Africans, while encouraging creativity and innovation’.


Legislation: Copyright fair use, fair dealings prioritised

Publish date: 23 August 2017 Issue Number: 4290 Diary: Legalbrief Today Work on re-drafting the Copyright Amendment Bill will begin with a two-week focus on the key policy issue of fair use, as opposed to fair dealing, in the context of: royalty rights and exceptions; commissioned work; and state ownership, when commissioned work is funded from the fiscus. Yesterday’s meeting of the National Assembly Committee on Trade and Industry also agreed that a sub-committee tasked with overseeing the re-drafting process will have until Thursday to identify members to serve on its panel of technical experts. Since Paul Benjamin of Cheadle Thompson and Haysom accompanied Department of Trade and Industry (DTI) Director-General Lionel October to the meeting, he will probably bolster DTI input to the process – although this was not formally announced. Interestingly, a media statement outlining October’s understanding of the way forward – posted on the department’s website at the beginning of the week – disappeared the following day. Differing quite significantly from a statement issued by the committee on Friday, it said that members had agreed to a more phased approach to tackling issues raised by stakeholders during parliamentary hearings on the Bill – prioritising those identified by the Copyright Review Commission as requiring urgent attention (allAfrica). These included ‘the non-payment of royalties to musicians’. While the handful of committee members present at Friday’s meeting vehemently rejected October’s proposal of a leaner, more focused Bill – possibly leaving the issue of fair use/fair dealings to later legislation – the process of arriving at a more informed understanding among sub-committee members on what is essentially a policy matter could precipitate a change of heart. There is a sense in some quarters that the US fair-use approach could worsen the plight of the industry’s more vulnerable stakeholders. It appears to be behind what ANC committee member Adrian Williams described on Friday as a policy ‘shift’ away from protecting the interests of artists, authors and creators towards serving the interests of consumers. Against that background, the sub-committee could well ‘re-engage’ stakeholders fully conversant with these issues.


Legislation: Copyright Bill with NHTL

Publish date: 08 September 2017 Issue Number: 4302 Diary: Legalbrief Today The Copyright Amendment Bill was referred this week to the National House of Traditional Leaders (NHTL). This is despite being in the early stages of a complete overhaul by a strengthened Department of Trade and Industry drafting team, under the watchful eye of a sub-committee of the National Assembly’s Trade and Industry Committee, notes Pam Saxby for Legalbrief Policy Watch. This notwithstanding, a memorandum on the Bill’s objects does indicate that ‘indigenous work’ deemed to be part of the heritage or customary practices of an indigenous community and created by one of its members, past or present, should be referred to the NHTL. Given that the Bill was tabled in Parliament during May, why has this has taken so long – possibly excluding the NHTL from the parliamentary hearings process, if inadvertently? As Legalbrief Today reported at the time, on 22 August the sub-committee was given two weeks to tackle the key policy issue of fair use, as opposed to fair dealings – in the context of royalty rights and exceptions, commissioned work, and state ownership when such work is funded from the fiscus. Unfortunately, there is no official record of what has since transpired. Neither have the names of copyright law experts to serve on the sub-committee’s advisory panel been announced. Wednesday’s full committee meeting – when members were scheduled to receive feedback on both issues – was cancelled at exceptionally short notice. These somewhat bewildering developments do tend to point to a long road ahead for the Bill.


Legislation: Reworked Copyright Bill nears completion

Publish date: 11 October 2017 Issue Number: 4324 Diary: Legalbrief Today As work on redrafting the Copyright Amendment Bill gathers momentum, ‘more and more questions’ are surfacing according to parliamentary legal adviser Charmaine van der Merwe – who has nevertheless confirmed that ‘no policy changes’ have been made, reports Pam Saxby for Legalbrief Policy Watch. Where a policy decision is required, the provisions concerned have been flagged in a version of the Bill Van der Merwe believes will rectify all technical errors, inconsistencies and repetitive clauses identified during May’s public hearings. Only then will matters of policy be tackled by the National Assembly’s Trade and Industry Committee. Briefing committee members yesterday, Van der Merwe said that – while certain ‘phrases’ still need to be clarified – she is confident that the Bill’s ‘B’ version will make the Act far easier to understand from a technical perspective, once the amendments envisaged have been promulgated and incorporated. Although no timeframe was given for the completion of the reworked Bill and no discussion took place, committee chair Joan Fubbs expressed hope that the remainder of the drafting process will not take ‘too much longer’.


Legislation: Copyright Bill redrafted

Publish date: 19 October 2017 Issue Number: 4330 Diary: Legalbrief Today A document completely re-working the Copyright Amendment Bill was circulated yesterday at a meeting of the National Assembly’s Trade and Industry Committee, when it was agreed that discussions on ‘big policy issues’ flagged in the body of the text should be tackled before scrutinising the redrafted Bill clause by clause, reports Legalbrief Policy Watch.  The merits of fair use and fair dealing will be explored in that context. Briefing committee members on the process followed by the task team in developing the document, parliamentary legal adviser Charmaine van der Merwe said that – while she is confident that it addresses every technical concern identified during May’s parliamentary hearings – like the original Bill, it remains consistent with the draft policy position understood to have underpinned the work of the 2011 Farlam Copyright Review Commission and its report. Where definitions have been changed, they are in line with various international treaties listed in a memorandum on the Bill’s objects.


Legislation: Experts to assist with processing improved Copyright Bill

Publish date: 23 November 2017 Issue Number: 4355 Diary: Legalbrief Today A panel of five experts will assist the National Assembly’s Trade and Industry Committee as it proceeds with deliberations on a technically improved working draft of the Copyright Amendment Bill, reports Pam Saxby for Legalbrief Policy Watch.  Identified at yesterday’s meeting, the panel is expected to include: Stellenbosch University’s Sadjulla Karjiker; Advocate Zodwa Gumede; the Library Association of SA’s Denise Nicholson; and Andre Myburgh, legal counsel for the Dramatic, Artistic and Literary Rights Organisation and the Publishers Association of SA. Other specialists may be approached to advise the committee as the need arises. Policy issues flagged during the technical redrafting process have been divided into four groups: fair use/fair dealing, orphan works, collecting societies and commission work; royalties, and the function of the proposed tribunal; technology, moral rights and translation and reproduction licenses; and intellectual property (IP) and indigenous knowledge law. As Legalbrief Today reported last month, at this stage the working draft continues to reflect the policy position on IP underpinning the work of the Farlam Commission and its recommendations. Where definitions have been changed, they are in line with various international treaties listed in a memorandum on the Bill’s objects.


Legislation: Copyright Bill process questions Farlam report ‘credibility'

Publish date: 17 April 2018 Issue Number: 4440 Diary: Legalbrief Today Behind-the-scenes work on the Copyright Amendment Bill appears to have raised concerns about the ‘credibility’ of the 2011 Farlam Copyright Review Commission report, or so a recent Department of Trade and Industry media statement tends to suggest, notes Pam Saxby for Legalbrief Policy Watch. According to the statement, seven years later Trade and Industry Minister Rob Davies remains ‘satisfied’ with the ‘validity’ of the report and its findings, which it notes have ‘never been questioned’ before. With that in mind, the statement urges the National Assembly’s Trade and Industry Committee and Parliament in general to focus on correcting the ‘imbalances and injustices’ on which the ‘plight’ of so many South African artists is often blamed. To that end, taking cognisance of their contribution to ‘history, heritage and culture’, the re-worked Bill should ‘economically empower’ the country’s artists and ‘bring dignity’ to the broader sector. As Legalbrief Today has already reported, technical errors, inconsistencies and repetitive clauses in the original Bill have been removed – and a sub-committee established to tackle policy issues flagged in the working draft. When parliamentary legal adviser Charmaine van der Merwe last briefed the committee in November, these had been grouped under four categories comprising: fair use/fair dealing, orphan works, collecting societies and commission work; royalties, and the function of the proposed tribunal; technology, moral rights and translation and reproduction licenses; and intellectual property and indigenous knowledge law. At the time, the working draft still reflected government policy on intellectual property as articulated in the Farlam Commission report.


Legislation: Copyright Bill process reaches cross roads

Publish date: 25 April 2018 Issue Number: 4446 Diary: Legalbrief Today The Copyright Amendment Bill may well be simplified to focus on ‘quick wins’, particularly for South African musicians – leaving its more controversial provisions to ‘second-phase’ legislation. Pam Saxby, for Legalbrief Policy Watch, reports this emerged during yesterday’s meeting of a sub-committee established last year by the National Assembly Committee on Trade and Industry to oversee the re-drafting process, informed by stakeholder input during parliamentary hearings. As Legalbrief Today reported at the time, among other things the hearings drew attention to serious flaws in a Bill also perceived in some quarters to be proposing a policy shift (from fair dealing to fair use) likely to have far-reaching unintended consequences. The Department of Trade and Industry is now arguing for the urgent enactment of provisions in the Bill giving practical effect to 2011 Farlam Copyright Review Commission report recommendations for addressing the plight of local musicians – as last week’s media statement made very clear. This is noting that – given the prolonged winter recess recently announced – according to parliamentary law adviser Charmaine van der Merwe the committee only has until 31 May to conclude its work on the Bill. Against that backdrop, today’s committee meeting will begin considering two redrafted versions of the Bill clause by-clause: one focusing on copyright review commission proposals; the other also dealing with contentious policy issues. Deliberations on the complex technical matters entailed will be informed by input from the department, which is expected to motivate for certain clauses to be dropped altogether and others substantively strengthened. This is noting that, normally, such a deeply flawed piece of legislation would have been rejected by the committee and withdrawn. However, the urgent need to correct long-standing loopholes in the principal statute negatively affecting local musicians has left members with no alternative but to proceed with what Van der Merwe yesterday described as the ‘messy process’ now under way. Among other things, today’s meeting could see the department attempting to persuade committee members to leave fair use clauses in the Bill to second-phase legislation, retaining the fair dealing principle underpinning existing legislation – at least for the time being. However, as Legalbrief Today reported at the time, ANC members vehemently opposed this approach when it was first mooted by DG Lionel October following last year’s parliamentary hearings. Other issues likely to be discussed as the committee decides how best to proceed could include: measures to protect musicians from the ‘needle-time’ implications of failed sound recording agreements; the stricter regulation of collecting agency governance and royalty distribution procedures; and recouping the assignment of rights. It remains to be seen whether, if adopted by the committee, the department’s proposal for a more focused copyright tribunal (as opposed to one dealing with broader intellectual property matters) will require more public hearings.


Legislation: Copyright Bill process bogged down

Publish date: 26 April 2018 Issue Number: 4447 Diary: Legalbrief Today The Copyright Amendment Bill has become mired in a process so fundamentally flawed that the National Assembly’s Trade and Industry Committee went full circle at its meeting yesterday – flagging clause after clause for the attention of a sub-committee clearly out of its depth, reports Pam Saxby for Legalbrief Policy Watch. At their meeting the previous day, sub-committee members were told that input from Department of Trade and Industry deputy DG Evelyn Masotja was intended to ‘build capacity’ and not for discussion – seven months after the sub-committee was established to consider the complex issues concerned. Parliamentary Monitoring Group records confirm that a working draft of the Bill correcting shortcomings identified during parliamentary hearings was circulated to the full committee in October. But the process of identifying legal experts to support the sub-committee in its work was only finalised in March. Which may explain why ‘capacity’ has yet to be built and is probably why, as Legalbrief Today reported on Wednesday, the sub-committee chose to refer the reworked Bill back to the full committee to consider clause by clause – perhaps hoping that more hands would make lighter work of this challenging task. Unfortunately, what was not mentioned by sub-committee chair Lerato Theko when she made this recommendation to the full committee and it was adopted with no questions asked was the pivotal importance of input from the department. Among other things, members need to understand why its representatives believe the Bill should be limited to key Farlam Copyright Review Commission report proposals: an option first mooted after the parliamentary hearings but rejected outright by ANC MPs. When the committee embarked on its deliberations yesterday opposition party members took full advantage of every opportunity to ask for clarity on the rationale behind proposals for retaining some clauses and removing others. It was left to former Safety and Security Minister David Mahlobo, a new ruling party representative in the committee, to draw attention to the pitfalls (at least in his view) of continuing in this manner. He described yesterday’s proceedings as ‘traumatic’, possibly because he appeared to be failing in his repeated attempts to steer party colleagues away from ‘diluting’ policy principles with ‘technical applications’ he believes belong in the ensuing regulations. As things turned out, the committee room in which this fiasco took place had been double-booked, so the meeting was brought to an abrupt halt just three hours into the process. By then members had reached page 12 of a 52-page document and had not even begun to consider the vexed issue of fair use as opposed to fair dealing. Yet the sub-committee – in consultation with its panel of legal experts – is expected to be ready by 8 May to present the full committee with a possibly penultimate version of the Bill to be tabled in the House for a second reading debate. As Legalbrief Today has also reported, according to parliamentary legal adviser Charmaine van der Merwe, members have until 30 May to complete their work on the Bill: a deadline possibly dictated by a prolonged winter recess and the end of the 5th Parliament in anticipation of next year’s elections.


Legislation: Copyright Bill process limps on

Publish date: 03 May 2018 Issue Number: 4450 Diary: Legalbrief Today The reworked, technically improved Copyright Amendment Bill is unlikely to complete its passage through Parliament this year unless National Assembly Trade and Industry Committee members spend time familiarising themselves with the many complex issues it seeks to address. Pam Saxby, for Legalbrief Policy Watch, says this became glaringly apparent at yesterday’s meeting of the sub-committee charged with taking the process forward. As Legalbrief Today has already reported, the Department of Trade and Industry would like to see the Bill revised to focus on Farlam Copyright Review Commission recommendations – leaving more contentious policy matters for separate legislation. Against that backdrop, sub-committee members are now attempting to understand why, in the department’s view, certain of the Bill’s clauses should be removed and others retained. This despite having been briefed by DG Lionel October on 14 March: a sub-committee meeting at which, according to Parliamentary Monitoring Group records, only its chair Lerato Theko and her ANC colleague Simanga Mbuyane were present. Going forward, should members raise issues on which specialist input is needed, it will be parliamentary legal adviser Charmaine van der Merwe’s responsibility to consult legal experts identified in March to support the sub-committee in its work. Yesterday, having spent at least an hour grappling with clause 2A (scope of copyright protection), sub-committee members were so confused that Van der Merwe suggested they might benefit from revisiting material from last year’s ‘training’ session on the Bill. In the view of FF Plus MP Anton Alberts, a good starting point would be to read sections in the principal statute categorising creative works eligible for copyright protection and prescribing the rules applicable to each. This is noting that, as DG Evelyn Masotja explained, clause 2A is essentially an exclusion clause aligning the Act with international developments. Meanwhile, according to Van der Merwe, the 31 May deadline on which Legalbrief Today has already reported only applies to proposed new legislation yet to be tabled in the House. Had the Bill been rejected and withdrawn, given the urgent need to give practical effect to Farlam Copyright Review Commission recommendations that date would have affected any replacement legislation. This notwithstanding, Theko has made it very clear that members are now under ‘extreme time pressure’ to complete their work on the Bill. With that in mind, committee whip Bhekizizwe Radebe will attend every sub-committee meeting so that, if it becomes necessary to change the scope of the Bill, the necessary procedures are followed in good time.


Legislation: Copyright Bill process back on track?

Publish date: 09 May 2018 Issue Number: 4454 Diary: Legalbrief Today Department of Trade and Industry proposals for a leaner Copyright Amendment Bill focusing on Farlam Copyright Review Commission recommendations will be considered this week by the caucus of each political party represented in the National Assembly’s Trade and Industry Committee. A decision will then be taken on the way forward – probably next Tuesday if all goes according to plan. This, notes Pam Saxby for Legalbrief Policy Watch, was the outcome of yesterday’s discussions on the Bill, which also saw committee chair Joan Fubbs congratulating the working group concerned for a job well done. As Legalbrief Today has already reported, its members only began meeting in earnest during March and have yet to come to grips with the Bill’s complex provisions. This notwithstanding, should the committee decide to adopt the department’s two-phased approach to amending the principal statute, the contentious policy issue of fair use versus fair dealing will be shelved until more work has been done and a separate piece of legislation developed. Other issues likely to be flagged for inclusion in a second-phase Bill include: ‘freedom of panorama’; a private copying levy; and all works eligible for copyright other than those that are musical. This is noting that, in the department’s view, a leaner first-phase Bill should be limited to issues affecting musical works, sound recordings, broadcasts and access to music and works of art by the blind and visually impaired.


Legislation: No decision on DTI’s Copyright Bill proposals

Publish date: 17 May 2018 Issue Number: 4460 Diary: Legalbrief Today A decision has yet to be taken on Department of Trade and Industry proposals for a leaner Copyright Amendment Bill focusing on recommendations in the 2011 Farlam Copyright Review Commission report. Instead, a sub-committee of the National Assembly’s Trade and Industry Committee will continue to consider the reworked, technically improved but nevertheless highly contentious Bill clause by clause, notes Pam Saxby for Legalbrief Policy Watch. This does tend to suggest that, at the time of writing, the caucus of each political party represented in the committee had either not discussed the department’s proposals or had yet to arrive at a position on them. The matter was not discussed at yesterday’s meeting, although the Bill did feature in a summary of the agenda included in the official parliamentary schedule. Given that members seemed to understand the rationale behind the department’s proposals when they were formally presented last week and that they appeared to have been well-received, one cannot help but wonder what purpose will be served by continuing to consider clauses in the Bill quite likely to be removed. This is especially so noting that sub-committee members are struggling to familiarise themselves with the complex issues entailed, some of which will fall away if the department’s recommendations are adopted. Committee chair Joan Fubbs has regularly reminded the department that the Bill is now out of its hands and that Parliament will determine its future. This notwithstanding, stubbornly proceeding with what has undoubtedly been a badly managed process not only reflects poorly on the committee but also casts doubt over the capacity of the entire institution to handle complicated legislation.


Copyright: Bill to feature ‘hybrid model’ anchored in fair use

Publish date: 01 June 2018 Issue Number: 4471 Diary: Legalbrief Today The ANC’s position on user rights under domestic copyright law is that a more flexible ‘hybrid model’ anchored in fair use is most appropriate, especially given SA’s ‘unique situation’ and international best practice. While National Assembly Trade and Industry Committee deliberations on the reworked Copyright Amendment Bill will be informed by this going forward, a decision has yet to be reached on Department of Trade and Industry proposals for a leaner Bill focusing on music-industry-specific recommendations in the 2011 Farlam Copyright Review Commission report, notes Pam Saxby for Legalbrief Policy Watch.  Discussions during yesterday’s committee meeting nevertheless did tend to suggest that separate legislation on user rights in other industries is no longer an option. This is noting clauses in the reworked Bill already reflecting a hybrid approach and specifying the industries falling under each of its arms, as well as a reference by the ANC’s David Mahlobo to the possibility of a definition of the model and related exemptions featuring in a schedule to the Bill. Mahlobo made these remarks in the context of his party’s position on user rights. Meanwhile, the Department of Arts and Culture has proposed a raft of amendments to the Bill aimed at fine-tuning clauses among other things dealing with the scope of copyright protection, minimum contract requirements, royalties on works of art, the principle of reciprocity, the 50/50 split in royalties on audio-visual work, indigenous knowledge, access to information, orphan works and collecting societies. Several have been flagged either for further input or for a policy position later in the process.


Legislation: Comment sought on new clauses in Copyright Bill

Publish date: 20 June 2018 Issue Number: 4484 Diary: Legalbrief Today Comment is sought by 9 July on a raft of clauses in the reworked Copyright Amendment Bill possibly going beyond the scope of the Bill originally tabled in Parliament more than a year ago. Unfortunately, at the time of writing a working draft reflecting the provisions envisaged had yet to be made available, notes Pam Saxby for Legalbrief Policy Watch. However, since the ‘retrospective application’ of certain provisions affecting royalty payments features several times in the media statement calling for public input, the Department of Trade and Industry’s position on this issue may be relevant. This is noting that retrospectivity has often been raised during discussions on the Bill – especially in the context of royalty payments for musical works. As Legalbrief Today has already reported, members are expected to return early from an extended constituency break to continue processing the Bill at meetings scheduled for 1, 2, 7 and 8 August, when they will doubtless be briefed on any written submissions received. According to a presentation document circulated to members on 14 June, the department is concerned about the ‘unintended consequences’ of providing for retrospective royalties. With that in mind, the presentation identifies two potentially contentious issues:  ‘how far back’ such a provision should apply, and how the royalties concerned should be calculated. Noting the likelihood of legal challenges, the department has apparently advised committee members not to provide for retrospectivity – which may have prompted the call for further input from interested and affected parties. Other issues addressed in proposed new clauses summarised in the statement include: the basic requirements of an agreement on royalty percentages; the reciprocal application of a resale royalty right; reciprocity in the context of royalty payments by collecting societies to artists in foreign countries; the retrospective application of an artist’s resale right; the nature of copyright in programme-carrying signals; panorama rights and incidental use; and the rights of authors in the context of commissioned work.


Copyright: Reworked Bill includes retrospective royalty rights

Publish date: 21 June 2018 Issue Number: 4485 Diary: Legalbrief Today Clauses 5, 7 and 9 of a draft ‘B’ version of the Copyright Amendment Bill eventually circulated yesterday seek to provide the holder of a copyright in literary, musical, visual or audio-visual work before the commencement of the proposed new statute four years to begin negotiating a percentage of the retrospective royalties concerned. It is nevertheless envisaged that this would not apply to commissioned work – or when the term of a copyright has ended. These are some of the proposals spelled out in a list of clauses on which the National Assembly’s Trade and Industry Committee on Tuesday called for public input by 9 July, notes Pam Saxby for Legalbrief Policy Watch.  As Legalbrief Today has already reported, according to Tuesday’s  statement new provisions in the Bill include one prescribing ‘a new process for commissioned work aimed at giving the author more rights’, which is the focus of the Bill’s clause 22 (amending section 21 of the Act, dealing with ownership of copyright). Among other things, this clause seeks to ensure that – ‘where the agreement contemplated’ in the clause ‘does not specify who the copyright owner is, limited ownership of the copyright shall vest in the person commissioning the work, so that the exclusive right to do or to authorise any of the acts contemplated in sections 7, 8 or 9, as may be applicable, is limited to such rights as may be necessary for the purpose of the commission’. Sections 7, 8 and 9 of the principal statute respectively deal with the nature of copyright in artistic works, films and sound recordings. Other proposed new clauses on which stakeholder input is invited seek to provide for: a new definition of ‘visual artistic work’; the basic requirements of an agreement on royalty percentages; the reciprocal application of a resale royalty right; the retrospective application of an artist’s resale right; the nature of copyright in sound recordings and programme-carrying signals; panorama rights and incidental use; the obligations and responsibilities of collecting societies (including reciprocity in the context of royalty payments to artists in foreign countries, and royalties where a copyright owner or performer cannot be found); the proceedings of the proposed tribunal; and penalties for non-compliance.


Legislation: Copyright Bill meetings postponed to mid-August

Publish date: 03 August 2018 Issue Number: 4516 Diary: Legalbrief Today The National Assembly’s Trade and Industry Committee has postponed further discussions on the Copyright Amendment Bill until 14 August, according to the latest schedule of meetings, reports Pam Saxby for Legalbrief Policy Watch.  The committee had originally intended meeting on 7 and 8 August (during Parliament’s constituency period) to consider stakeholder submissions on proposed new clauses in a ‘B’ version of the reworked Bill beyond the scope of the original flawed version. On Tuesday, when members returned early from their constituencies to continue working on a draft National Credit Amendment Bill, committee chair Joan Fubbs mentioned the large volume of submissions received on the Copyright Amendment Bill’s new provisions, which were released on 19 June for comment as Legalbrief Today reported at the time. She appeared to be suggesting that parliamentary staff might need more time to process them. Meanwhile, although the deadline for comment on the proposed new clauses was extended by nine days to 18 July, several stakeholders have expressed concern that this still did not allow sufficient time to adequately prepare well-informed input. At this stage, it is not clear how Fubbs intends responding to this. In addition, as Legalbrief Today has also reported, Media Monitoring Africa believes that a Bill ‘already at risk of being outdated in the digital era’ merits further industry engagement on a range of issues raised during last year’s public hearings and apparently not addressed in the reworked version (Business Day). These include ‘appropriate and practical mechanisms to protect fair use rights’.


Legislation: Copyright Bill’s retrospectivity clauses unconstitutional?

Publish date: 15 August 2018 Issue Number: 4523 Diary: Legalbrief Today Concerns expressed by some stakeholders about the constitutionality of provisions in the reworked Copyright Amendment Bill for the retrospective application of royalty rights surfaced during yesterday’s meeting of the National Assembly Committee on Trade and Industry but were not discussed, reports Pam Saxby for Legalbrief Policy Watch. According to a document circulated by the department’s Deputy DG Evelyn Masotja, while a case-by-case ‘rationality test’ might address many of the issues raised, applying such a measure would probably present its own challenges. Unfortunately, time constraints prevented parliamentary legal adviser Charmaine van der Merwe from commenting on the issue, although her presentation document alluded to the possibility of ‘many unintended consequences and practical implementation challenges’ should the clauses in question be retained. Responding to submissions on new clauses released in June for comment, both documents tended to point to the committee’s increasing reliance on input from departmental experts as members continue to grapple with a piece of legislation described yesterday by committee chair Joan Fubbs as ‘heavy going’. Although stakeholder input on the proposed new process for commissioned work elicited some debate and was flagged for ongoing discussion, Masotja’s perspectives on the numerous other largely technical issues raised in stakeholder submissions went largely unchallenged – with members focusing on what one observer described as day-to-day ‘nitty gritty’ concerns without necessarily fully understanding their context or the legal principles entailed. Masotja will conclude her presentation today, when Van der Merwe will add her views on the issues raised. According to Van der Merwe’s document, these include the need for policy decisions on: the minimum content of the proposed agreement relating to royalty percentages; the reciprocal application of a resale royalty right; penalising the failure to record and report the use of sound recordings; the new process proposed for commissioned work; the payment of royalties by collecting societies; and transitional provisions for those already in existence. At this stage, it seems unlikely that the committee will accede to calls by some stakeholders for an opportunity to engage further on aspects of the Bill they believe still require attention.

Legislation: New Copyright Bill clause released for comment

Publish date: 03 September 2018 Issue Number: 4536 Diary: Legalbrief Today Comment is sought by 21 September on a proposed new clause in the Copyright Amendment Bill with implications for collecting societies, reports Pam Saxby for Legalbrief Policy Watch. Unfortunately, the National Assembly Trade and Industry Committee media statement inviting input from interested and affected parties includes a link to the original Bill – which was found to be fundamentally flawed last year and has since been redrafted. Sub-section numbers in the statement correspond with those falling under clause 25 of a technically improved version presented to the committee on 18 October 2017 – not with clause numbers in the original Bill. According to notes included in the statement, the new sub-section 22B(8) mooted under clause 25 of the Bill would be subject to a ‘transitional provision’, which may eventually become sub-section 22B(7) of the Act. It would allow existing collecting societies 18 months to apply for accreditation under the proposed new arrangements. This is noting that, if adopted by the committee and promulgated, the section 22 envisaged will make accreditation mandatory. Against that backdrop, the sub-section 22B(8) on which stakeholder input is now sought seeks to penalise any collecting society that has not been accredited and is therefore operating illegally. 


Legislation: Copyright Bill process leaves stakeholders ‘nervous’

Publish date: 05 September 2018 Issue Number: 4538 Diary: Legalbrief Today Last week’s call for comment on yet another draft clause for possible inclusion in the beleaguered Copyright Amendment Bill has prompted some stakeholders to question the integrity of the process being followed by the National Assembly’s Trade and Industry Committee in finalising a reworked version of the proposed new statute, reports Pam Saxby for Legalbrief Policy Watch. As Legalbrief Today has regularly reported, the Bill tabled in Parliament nearly 16 months ago was found to be deeply flawed. One of its most outspoken critics during public hearings in August last year was Professor Sadulla Karjiker, who holds the chair of intellectual property law at Stellenbosch University. When approached by e-mail for input on the new clause, he asked committee secretary Tenda Madima if – having ‘itself now drafted the Amendment Bill’ – the committee is ‘able to perform its oversight role’. Endorsing Karjiker’s concerns, Academic and Non-Fiction Authors’ Association of SA copyright committee member Monica Seeber wrote that, while ‘stakeholder responses to the Bill’s content have been wildly divergent’, it is nevertheless unlikely that anyone is ‘happy with the process’. ‘Is this the way law should be made?’ she asked. In Seeber’s view, ‘without the guidance of underlying policy or even a coherent ideological position’, the ‘bits and pieces’ released for comment point to a piece of legislation ‘composed of separate parts’ apparently contradicting each other ‘here and there’. Against that backdrop, stakeholders are becoming ‘very nervous’. ‘The Bill did not (and largely still does not) reflect a well-considered, balanced view of interests concerning copyright protection’, Karjiker told Madima. This is especially ‘given the rationale for copyright protection’, which he apparently believes has been overlooked. In July – following the release of a first batch of proposed new clauses – Anita Nel, senior director at Stellenbosch University’s Innovus centre for innovation and business development, asked the committee to consider holding ‘another round of oral submissions’ on ‘the latest draft’. This was noting that a clause not open for comment at the time was ‘irreconcilable with … (SA’s) constitutional values’ and likely to ‘deter technological development and investment’. While it is not clear from Parliamentary Monitoring Group reports on the committee’s deliberations if the clause has since been improved or scrapped, the prospects for more hearings are slim – at least until the Bill is referred to the NCOP. Meanwhile, members are expected to be briefed this morning on ‘linkages’ with the Performer’s Protection Amendment Bill. Tabled in December 2016, among other things the Bill seeks to address ‘challenges’ apparently experienced by artists – including the abuse of contracting parties’ rights, piracy and the non-payment of royalties. As Legalbrief Today has already reported, among other things the Bill proposes technological protection and copyright information management measures likely to have implications for the structure and role of the Intellectual Property Tribunal. It was placed on the committee’s back burner shortly after a call was made for stakeholder input in anticipation of public hearings, which never materialised.


Legislation: Latest working draft of Copyright Bill released

Publish date: 06 September 2018 Issue Number: 4539 Diary: Legalbrief Today The latest working draft of the reworked Copyright Amendment Bill – printed on 29 August – has finally been linked to last Friday’s National Assembly Trade and Industry Committee media statement calling for comment on yet another proposed new sub-clause. As Legalbrief Today reported when the statement was released, its link took stakeholders to the Bill’s deeply flawed original version – making it difficult to understand the context in which the new sub-clause was being proposed. At the time, even a technically improved version presented to the committee last October was not widely available, notes Pam Saxby for Legalbrief Policy Watch. Interested and affected parties have until 21 September to make input on the draft sub-clause, which seeks to penalise any collecting society that has not been accredited and is therefore operating illegally. As Legalbrief Today has also reported, the new sub-clause is subject to a ‘transitional provision’, which appears under clause 25 of the reworked Bill and refers to what may eventually become sub-section 22B(7) of the Act. It allows existing collecting societies 18 months to apply for accreditation under the proposed new arrangements. This is noting that, if adopted by the committee and promulgated, the section 22 envisaged – comprising an entirely new chapter on collecting societies – will make accreditation mandatory.


Legislation: Copyright Bill’s scope to be expanded?

Publish date: 07 September 2018 Issue Number: 4540 Diary: Legalbrief Today The National Assembly’s Trade and Industry Committee has approached the House for permission to make changes to the 1978 Copyright Act apparently beyond the scope of the beleaguered Copyright Amendment Bill now before it. According to a report tabled in the House, public submissions and input from the Department of Trade and Industry and ‘other departments’ prompted this move. Pam Saxby, for Legalbrief Policy Watch, notes that, given that the committee’s most recent call for stakeholder comment on proposed new clauses was only made last Friday – as Legalbrief Today reported at the time – it may well be that the committee is referring to input received on draft clauses released in June. These included proposals providing for the retrospective application of royalty rights, the constitutionality of which was questioned in submissions from several stakeholders. During a meeting of the committee on 14 August, Department of Trade and Industry Deputy DG Evelyn Masotja and parliamentary legal adviser Charmaine van der Merwe both flagged the issue as a source of concern – as Legalbrief Today has already reported. This notwithstanding, the latest version of the reworked Bill (dated 29 August) already deals with most issues referred to in the report – tending to suggest that permission is being sought retrospectively and as a formality. Against that backdrop, assuming the House accedes to the committee’s request, the Bill will amend the following sections of the principal statute in addition to those already featured in its original version: 1 (definitions); 6, 7, 8 and 9 (the nature of copyright in literary, musical and artistic works, as well as in cinematograph films and sound recordings); 9A (royalties); 12 (‘general exceptions from protection of literary and musical works’); 13 (‘general exceptions in respect of reproduction of works’); 15 (‘panorama rights’); 21 (copyright ownership); 22B, 22C and 22D (collecting societies); 27 (penalties and proceedings in respect of dealings infringing copyright); and 29 (copyright tribunal). It will also insert a section dealing with ‘resale royalty rights’ and referred to in the report as the Act’s section 7B – which does not exist but is being mooted by the committee under clause 7 of the latest version of the Bill. The proposed new section 7B deals with resale royalty rights in respect of artistic works.


Legislation: Experts called in to advise on Copyright Bill

Publish date: 12 September 2018 Issue Number: 4543 Diary: Legalbrief Today The latest draft of the beleaguered Copyright Amendment Bill has finally been sent to a panel of technical experts appointed in March to assist the National Assembly Committee on Trade and Industry with its work. Allowed just 18 days to make recommendations, the panel has been asked not to ‘engage’ the committee on ‘the merits or demerits’ of the proposed new statute – or on ‘policies agreed … by the committee and … thus reflected in … (its provisions)’. According to the committee’s ‘instructions’, input from each panel member should focus on: ‘the appropriateness of the terminology used’ in the context of local copyright law parlance; whether the Bill’s ‘wording’ reflects policy imperatives outlined in the memorandum on its objects; whether clauses seeking to address SA’s obligations in terms of the international treaties concerned ‘correctly reflect’ their content; and ‘whether any of the clauses raise constitutional concerns’. Astoundingly, writes Pam Saxby for Legalbrief Policy Watch, the committee saw fit to remind panel members that only those ‘legally qualified’ to do so should flag constitutionality concerns. They are also required to bear in mind that, in seeking to provide for SA’s compliance with international treaties yet to be ratified, it is ‘acceptable’ for the Bill’s ‘scope’ to be ‘broader’ than that of a treaty – but not ‘narrower’. As far as can be ascertained, the panel includes Advocates Joel Baloyi, Ntsietso Makhafola-Mokitimi and Natasha Pather, as well as Andre Myburgh, Thabang Mathibe, Wiseman Ngubo and Michele Woods. Parliamentary Monitoring Group records confirm a decision to ‘send’ the Bill to the panel of technical experts was made on 5 September – possibly not only in the absence of committee chair Joan Fubbs (who left after lengthy deliberations on the contents of a report on the National Credit Amendment Bill – ‘to hear the testimony of Markus Jooste, former CEO of Steinhoff’) but possibly also with too few members present to constitute a quorum. Whatever the case, the records make no reference to a timeframe or any ‘instructions’ on what the panel should or should not do. However, they do refer to approaching the panel before the end of the period allowed for public comment on the most recent draft clause amending provisions in the Act not addressed in the version tabled in Parliament and since reworked. Perhaps this explains why it took five more days to contact panel members. As Legalbrief Today has already reported, on 31 August stakeholders were invited to comment by 21 September on a new clause seeking to penalise any collecting society not accredited within the prescribed timeframe and therefore operating illegally. On 6 September, the committee approached the House for permission to make changes to the Act beyond the scope of the Bill tabled in Parliament last year. Given the retrospective nature of this request and the deadline since imposed on a panel of technical experts called in at the 11th hour, it is hardly surprising that stakeholders are increasingly questioning the integrity of the parliamentary process to date.


Legislation: Request for more changes to Copyright Act approved

Publish date: 18 September 2018 Issue Number: 4547 Diary: Legalbrief Today A request from the National Assembly’s Trade and Industry Committee for permission to amend sections of the Copyright Act beyond the scope of the Bill now before it was granted last week, reports Pam Saxby for Legalbrief Policy Watch.  According to minutes of the session concerned, there was no debate. As Legalbrief Today has already reported, sections of the Act to be amended in addition to those featured in the Bill among other things deal: with the nature of copyright in literary, musical and artistic works, as well as in cinematograph films and sound recordings; royalties; resale royalty rights in respect of artistic works; ‘general exceptions’ as these apply to the protection of literary and musical works and the ‘reproduction of works’ in general; ‘panorama rights’; copyright ownership; collecting societies; penalties and proceedings in respect of dealings infringing copyright; and the copyright tribunal. It is not clear from the report requesting permission and the latest version of the reworked Bill whether the amendments envisaged are consequential or more substantive. Permission may even have been sought retrospectively and as a formality. Meanwhile, the panel of technical experts appointed in March to assist the committee with its work has until 29 September to make recommendations on: ‘the appropriateness of the terminology used’ in the context of local copyright law parlance; whether the Bill’s ‘wording’ reflects policy imperatives outlined in the memorandum on its objects; whether clauses seeking to address SA’s obligations in terms of the international treaties concerned ‘correctly reflect’ their content; and ‘whether any of the clauses raise constitutional concerns’. As Legalbrief Today has also reported, the panel has been asked not to ‘engage’ the committee on ‘the merits or demerits’ of the proposed new statute – or on ‘policies agreed … by the committee and … thus reflected in … (its provisions)’. Stakeholders have until Friday to comment on the committee’s most recently advertised proposed new clauses.


Legislation: More new clauses in Copyright Bill?

Publish date: 10 October 2018 Issue Number: 4562 Diary: Legalbrief Today The definition of ‘collecting society’ in the Copyright Act is likely to be changed in line with one in the 2014 European Union (EU) directive on collective rights management. This emerged yesterday when the National Assembly Committee on Trade and Industry considered public submissions on a proposed new clause for inclusion in the latest version of the Copyright Amendment Bill, reports Pam Saxby for Legalbrief Policy Watch. Released on 31 August for comment, once in force the clause will penalise collecting societies not accredited in keeping with a new sub-section 22B(8) of the Act now featured in the Bill, as Legalbrief Today has already reported. While Department of Trade and Industry representatives, parliamentary legal adviser Charmaine van der Merwe and committee members concluded that, despite concerns articulated in submissions on the clause, it should nevertheless be adopted, they agreed that the definition of ‘collecting society’ does require attention. The move appears to have been prompted by a submission from the Composers, Authors and Publishers Association referring to the EU directive, which defines a collecting society/collective management organisation as ‘any organisation … authorised by law or by way of assignment, licence or any other contractual arrangement to manage copyright or rights related to copyright on behalf of more than one rightsholder, for the collective benefit of those rightsholders, as its sole main purpose’. The directive requires any such collecting society/collective management organisation either to be ‘owned or controlled by its members’ or ‘organised on a non-profit basis’ – or to fulfil both these criteria. On Thursday, the committee will unpack recommendations from technical experts on possible improvements to the Bill’s latest version. Should these require additional clauses beyond its scope, they will also be released for comment. Regardless of the number of clauses eventually advertised for public input, this process will probably scupper any plans on the committee’s part to complete its work on the Bill before the end of this month (Intellectual Property Watch). A two-week commentary period was mentioned during yesterday’s meeting, commencing on Friday when a media statement calling for comment will apparently be released. Committee chair Joan Fubbs made it very clear that this must be the final round of public participation in the process if the Bill is to complete its passage through Parliament before it rises for the 2019 general elections.


Legislation: Copyright Bill process stalled?

Publish date: 11 October 2018 Issue Number: 4563 Diary: Legalbrief Today Submissions from technical experts on the latest version of the Copyright Amendment Bill will not be discussed today by members of the National Assembly’s Trade and Industry Committee after all. As Legalbrief Today reported on Wednesday, in considering recommendations made by the panel of experts the committee was hoping to identify any additional clauses needing to be included in the Bill but nevertheless beyond its scope – and therefore meriting yet another round of public participation. However, given committee chair Joan Fubbs’ reference on Tuesday to the complexity of a submission received from the World Intellectual Property Organisation (WIPO) in particular, perhaps committee support staff and parliamentary legal adviser Charmaine van der Merwe require more time to prepare a response. According to its covering letter, the WIPO submission focuses on whether sections of the Bill related to implementing multilateral copyright treaties ‘correctly reflect’ their contents, reports Pam Saxby for Legalbrief Policy Watch.  Interestingly, three other submissions made available to observers attending Tuesday’s meeting note the difficulty of advising on technical matters without commenting on the broader ramifications of policies underpinning the Bill. As Legalbrief Today has already reported, experts were explicitly instructed not to ‘engage’ the committee on ‘the merits or demerits’ of the proposed new statute – or on ‘policies agreed … by the committee and … thus reflected in … (its provisions)’. However, according to a submission from Wiseman Ngubo, ‘technical wording and policy are difficult to divorce from (the) merits of any clauses’. In the view of Advocate Joel Baloyi, in ‘certain cases’ it is ‘not completely feasible’ to comment on the Bill’s constitutional, legal or treaty ‘alignment’ without ‘reflecting on some policy issues’. The executive summary of a 125-page submission from André Myburgh among other things notes that his advice is based on ‘material flaws’ in respect of the Bill’s constitutionality, the ‘conceptualisation’ of provisions arising from the ‘policy considerations’ underpinning it – and SA’s obligations under the international treaties to which it is party. In Myburgh’s view, the Bill’s drafting has been ‘misdirected’ in so many respects that options for salvaging it are ‘very limited’. It is apparently replete with: ‘outcomes (either) contrary to policy statements or … not contemplated by (them)’; provisions in breach of a raft of treaties; and provisions ‘carrying the risk of objection under the Constitution’ in respect of deprivation of property and ‘limitations on the freedom to trade’. The submissions are too lengthy to provide as links to this report.


Legislation: Copyright Bill process limps on

Publish date: 12 October 2018 Issue Number: 4564 Diary: Legalbrief Today The reworked Copyright Amendment Bill is to be changed yet again to accommodate proposed new sub-clauses beyond its original scope – informed by recommendations from the panel of technical experts, reports Pam Saxby for Legalbrief Policy Watch. Identified yesterday afternoon at a meeting of the National Assembly’s Trade and Industry Committee, the sub-clauses will be advertised today with a call for input from stakeholders within 10 days. They have implications for: the nature of copyright in literary, musical and artistic works, as well as cinematograph film and sound recordings (clauses 4, 6, 8 and 10 of the Bill, amending sections 6, 7, 8 and 9 of the Act); the administration of rights by a collecting society (clause 25 of the Bill, inserting a new chapter in the Act); suspending or cancelling the accreditation of a collecting society (clause 25); restrictions on imported copies (clause 28, amending section 28O of the Act); and prohibited conduct in respect of technological protection measures (clause 29, once again affecting section 28O of the Act). A new definition of ‘collecting society’ will also be proposed, as Legalbrief Today has already reported. Perhaps members of the public were not expected to attend the meeting, which would explain why no hard copies of parliamentary legal adviser Charmaine van der Merwe’s presentation on the proposed new clauses were available for outsiders. As Legalbrief Today has already reported, the Bill did not feature in a summary of agenda items for the meeting as it appeared in yesterday’s parliamentary schedule – hence the assumption that the process had stalled. While it does seem to be limping on regardless, there was nevertheless very little meaningful discussion on Van der Merwe’s input. The few committee members present appeared not to have done much homework, so it was left to ANC whip Bhekizizwe Radebe to remind them that no decisions were required. These will be made ‘on balance’ when the time comes – informed by the ruling party’s commitment to a ‘hybrid model’ combining elements of fair use and fair dealing. As Legalbrief Today has also reported, committee chair Joan Fubbs expects today’s call for comment to be her committee’s last on this beleaguered piece of proposed new legislation. The submissions circulated on Tuesday were compiled by three members of the panel of technical experts: Advocate Joel BaloyiWiseman Ngubo and André Myburgh


Legislation: More new Copyright Bill clauses released for comment

Publish date: 15 October 2018 Issue Number: 4565 Diary: Legalbrief Today Comment is sought by 25 October on proposed new clauses to be included in the reworked Copyright Amendment Bill but beyond its original scope, notes Pam Saxby for Legalbrief Policy Watch. According to a notice circulated on Friday by the National Assembly’s Trade and Industry Committee, the clauses mooted provide for: a more comprehensive definition of the term ‘collecting society’; the distribution of an original work or copy of it to the public; the rental of a commercial work to the public; and registering and reporting any act in respect of cinematograph film (making failure to do so an offence). Regarding clause 25 of the Bill (introducing a new chapter in the Act dealing with collecting societies), the proposed new provisions empower such societies to: request information from any person exercising an act for commercial purposes (making failure to provide the required information an offence); and negotiate licensing fees, royalty rates and tariffs on behalf of members. Also mooted is a clause providing for the skills of an administrator appointed in terms of the 2008 Companies Act where a collecting society’s accreditation has been suspended or cancelled. In addition, with the aim of avoiding ‘unintended consequences’, clauses are proposed clarifying sub-sections 28(2) and (5) of the Act (restrictions on imported copies). As Legalbrief Today has already reported, except for the definition of ‘collecting society’ the proposed new clauses were informed by advice received from members of a panel of technical experts. Identified by parliamentary legal adviser Charmaine van der Merwe, they were presented to the committee last Thursday but not discussed in any depth. This is the third time a call has been made for comment on clauses beyond the scope of the original Bill, which was found to be fundamentally flawed during public hearings in May 2017. While it has since been completely reworked, the policies underpinning it have not changed. Members of the committee have yet to be briefed on the full extent of advice from each technical expert regarding: the appropriateness of the terminology used in the context of local copyright law parlance; whether the Bill’s wording reflects policy imperatives outlined in the memorandum on its objects; whether clauses seeking to address SA’s obligations in terms of the international treaties concerned correctly reflect their content; and whether any of the Bill’s clauses raise constitutional concerns.


Legislation: Opinions sought on Copyright Bill’s constitutionality

Publish date: 18 October 2018 Issue Number: 4568 Diary: Legalbrief Today Concerns expressed by technical experts about the constitutionality of certain clauses in the Copyright Amendment Bill have been referred to the Department of Trade and Industry’s Advocate Johan Strydom and principal state law adviser Gideon Hoorn, reports Pam Saxby for Legalbrief Policy Watch. This was confirmed yesterday at a meeting of the National Assembly’s Trade and Industry Committee, when parliamentary legal adviser Charmaine van der Merwe briefed members on proposed amendments to the Bill informed by advice from the panel of technical experts. University of Cape Town Professor Tobias Schonwetter has been approached for an opinion on whether the ‘hybrid model’ of fair use and fair dealing underpinning the Bill complies with the ‘three-step test in copyright’. Apparently originating in the 1886 Berne convention for the protection of literary and artistic works, the test is used to establish ‘the legal parameters for reproducing a work’ (Intellectual Property Watch). It is not clear when the committee will meet to discuss the proposed new amendments, several of which were advertised last week for public comment, as Legalbrief Today has already reported. Reflected in a revised draft of the Bill circulated at yesterday’s meeting, all substantive changes mooted are marked with asterisks, double vertical lines and/or double underscoring for the convenience of Legalbrief Today readers. According to committee chair Joan Fubbs, the Bill is expected to have been finalised by mid-November in anticipation of a second reading debate in the House during the last week of that month. It will then be sent to the NCOP for concurrence.


Legislation: Copyright Bill passes three-steps test

Publish date: 01 November 2018 Issue Number: 4578 Diary: Legalbrief Today University of Cape Town intellectual property unit director Tobias Schonwetter is confident that fair use provisions in the latest version of the Copyright Amendment Bill are consistent with a three-steps test reflected in the 1886 Berne Convention for the protection of literary and artistic works and the 1995 World Trade Organisation agreement on trade-related aspects of intellectual property rights. This emerged during yesterday’s meeting of the National Assembly Committee on Trade & Industry, when departmental consumer and corporate regulation division official Meshendri Padayachy briefed members on an opinion sought from Schonwetter that was unfortunately not made publicly available. Stakeholder input on proposed new clauses advertised last month for public comment were also discussed, notes Pam Saxby for Legalbrief Policy Watch. The most substantive change agreed was that the Bill should provide for a court to use its discretion when imposing a penalty for not submitting information to a collecting society on the use of an artistic work. Opposition party members were especially concerned about the implications for small businesses of the ‘harsh penalties’ envisaged – and perceptions that ‘the corporate veil’ tends to protect the errant directors of large companies from the consequences of such actions. Interestingly, issues raised about the Bill’s implications for SA’s obligations in respect of property rights under the US African Growth and Opportunity Act have already been discussed at length with US government officials and were apparently largely addressed earlier in the drafting process. While the committee was not briefed on Schonwetter’s view in this regard (which apparently featured in his document despite not having been explicitly sought), his opinion on the Bill’s constitutionality relies on sections in the Constitution prohibiting the arbitrary deprivation of property, which Schonwetter believes will suffice – at least according to Padayachy. This is noting that Schonwetter is not an expert on constitutional law, as his report evidently makes clear. Opinions being prepared by the department’s Advocate Johan Strydom and principal state law adviser Gideon Hoorn are expected to throw more light on the matter but will only be available on 7 November. Meanwhile, a view will be sought from the Broad-based Black Economic Empowerment (B-BBEE) Commission on whether its legislation should apply to collecting societies. This was prompted by a recommendation from the department’s deputy DG for consumer and corporate regulation, Evelyn Masotja, for the removal of a clause making B-BBEE compliance a collecting society accreditation requirement. Given reservations expressed by stakeholders about the committee’s ‘piecemeal’ approach to public consultation and the limited time allowed for input to be prepared and submitted, members have also requested a ‘road map’ of the process followed since the Bill was tabled in Parliament more than two years ago. The committee is scheduled to meet this afternoon to consider a revised Bill, which will reflect decisions on these issues and will be considered clause by clause. As Legalbrief Today has already reported, the committee expects to have completed its work on the Bill by mid-November in anticipation of a second reading debate in the House during the last week of the month.


Legislation: Still no opinion on Copyright Bill’s constitutionality

Publish date: 08 November 2018 Issue Number: 4583 Diary: Legalbrief Today Most clauses in the latest revised version of the reworked Copyright Amendment Bill were approved in principle yesterday by the National Assembly’s Trade and Industry Committee. However, notes Pam Saxby for Legalbrief Policy Watch, in the absence of a legal opinion on the constitutionality of seven key clauses – as well as clarity on broad-based-black-economic-empowerment (B-BBEE)-related collecting society accreditation criteria – clause-by-clause consideration of the Bill and its adoption were postponed until next Thursday. As Legalbrief Today has already reported, a legal opinion on the Bill’s constitutionality was expected to be available yesterday, together with a view from the B-BBEE Commission on the issues concerned. On the insistence of acting committee chair David Mahlobo that no further unfulfilled commitments on the part of support staff or the Department of Trade and Industry be allowed to further delay the process of finalising the Bill, the outstanding legal opinion will be circulated to members on Monday, while a clause reflecting B-BBEE requirements in respect of the ownership, management and representivity of collecting societies seeking accreditation has been promised by the end of this week. Both will be considered by the committee next Tuesday in anticipation of adopting a fine-tuned Bill two days later. A second reading debate in the House has been scheduled for 19 November. Against that backdrop, next week’s legal opinion could (but may not necessarily) prompt changes to provisions in clauses 3, 5, 7, 9, 13, 22 and 23 of the Bill. Clause 3 (amending section 5 of the Act) deals with copyright in relation to the state and certain international organisations. Clause 7 (dealing with a share in royalties from visual artistic works) only requires a legal opinion on the constitutionality of retrospectivity provisions in a proposed new section 7A(7). The same applies to a new section 8A(7) proposed under clause 9, dealing with a share in royalties from audio-visual works. The legal opinion could have implications for clause 13 in its entirety, noting that it inserts a new section 12A in the Act to deal with general exceptions from copyright protection. Clause 22 (amending section 21 of the Act on copyright ownership) may only be affected by the legal opinion in respect of a proposed new sub-section 21(2) dealing with ownership vested in the state or ‘the international or local organisation concerned’, and not in the author. Clause 23 (amending section 22 of the Act, dealing with assignment and licences) may only be affected by the legal opinion in respect of a proposed new sub-section 22(1)(b).


Legislation: Copyright Bill retrospectivity clauses stay, regardless

Publish date: 14 November 2018 Issue Number: 4587 Diary: Legalbrief Today Provisions in clauses 5, 7 and 9 of the latest reworked ‘B’ version of the Copyright Amendment Bill entitling the authors of literary, musical, visual artistic and audio-visual works to a share in the royalties from copyright assigned prior to its commencement will be retained – despite being ‘assailable in law’, reports Pam Saxby for Legalbrief Policy Watch. This is noting that the process to be followed in determining an author’s share will be spelled out in regulations that may well be found to pass constitutional muster. According to state law advisers Johan Strydom and Gideon Hoorn, the regulations will need to strike an appropriate balance between competing interests: those of copyright holders (whose right not to be arbitrarily deprived of intellectual property is enshrined in section 25 of the Constitution); and the interests of authors whom, by assigning copyright in contractual arrangements ‘to their detriment’, may not necessarily have been ‘fairly compensated’ in line with their fundamental rights. This view formed part of a legal opinion on the validity or constitutionality of seven of the Bill’s key clauses, which was presented yesterday to members of the National Assembly’s Trade and Industry Committee. According to the opinion, provisions in clauses 3, 22 and 23 (dealing with copyright in relation to the state and certain international and local organisations) and provisions in clause 13 (dealing with general exceptions from copyright protection) are respectively ‘valid’ and ‘justifiable’ in law. When opposition party calls for a second, independent legal opinion on the Bill’s constitutionality and a pre-adoption socio-economic impact assessment were put to the vote, ANC members of the committee chose not to heed the concerns underpinning them. In the view of the committee’s ANC whip Bheki Radebe, by giving expression to the ‘hybrid model’ of fair use and fair dealing, the Bill allays any fears remaining about what FF Plus MP Anton Alberts described as ‘importing fair use into South African law’ without taking account of its possible unforeseen consequences. Yet the term ‘hybrid model’ has never been clearly defined. Neither does the Bill explicitly prescribe industry-specific circumstances in which fair use will apply – or, by contrast, in which the principle of fair dealing will prevail. Presumably, these matters will be left to the regulations, which the committee agreed should be subjected to ‘the parliamentary process’ and informed by a socio-economic impact assessment that is already in the process of being outsourced, according to Department of Trade and Industry deputy DG Evelyn Masotja. Against that backdrop, the relevant provisions in clauses 5, 7 and 9 of the latest version of the reworked Bill will be amended to include a cross reference to sub-clause 38(2) (commencement) – requiring regulations to be in place before they come into effect. Explicit provision will also be made for the regulations to be informed by the outcome of the socio-economic impact assessment and subjected to parliamentary scrutiny – which should include a public participation process. A revised ‘B’ version of the Bill is scheduled to be considered clause-by clause on Thursday, in anticipation of its formal adoption, a second reading debate in the House and onward transmission to the NCOP for concurrence.


Legislation: Copyright Bill adopted as controversy rages on

Publish date: 16 November 2018 Issue Number: 4589 Diary: Legalbrief Today Fair use and copyright protection exception provisions in the Copyright Amendment Bill ‘will lead to a substantial loss of income to authors and publishers and a reduction in the quality of content available to South African students’. This is according to the International Federation of Reproduction Rights Organisations, which has also expressed concern about ‘reports of insufficient research and impact assessment’ in developing the Bill, reports Pam Saxby for Legalbrief Policy Watch. A media statement issued by the federation also refers to ‘warnings by copyright experts engaged by Parliament’ that the Bill is in ‘conflict’ with SA’s obligations under the 1886 Berne Convention and the 1995 World Trade Organisation Trade-Related Aspects of Intellectual Property Rights Agreement. Similar reservations have been articulated in press releases from the International Authors Forum, the International Publishers Association and the Publishers’ Association of SA. A revised ‘B’ version of the Bill was nevertheless adopted by majority vote at yesterday evening’s meeting of the National Assembly Committee on Trade and Industry. As Legalbrief Today has regularly reported, the Bill has been widely criticised from the time its deeply flawed original version was tabled in Parliament 18 months ago. Although it has since been reworked to address technical issues raised during last year’s public hearings, the ‘hybrid model’ of fair use and fair dealing apparently underpinning its more contentious provisions has never been clearly articulated. As a result, the far-reaching, presumably unintended consequences of several of the Bill’s key clauses are perceived by many stakeholders to have been downplayed. The piecemeal approach followed in calling for comment on new provisions beyond the scope of the Bill’s original version has further entrenched this view, especially given deadlines generally perceived not to have allowed sufficient time to prepare well-informed input on the complex issues entailed. Yet, according to parliamentary legal adviser Charmaine van der Merwe, ‘some’ stakeholders are looking forward to the Bill’s promulgation and implementation. They are simply not as vocal in their support as critics have been in expressing their opposition. Van der Merwe made this observation during a meeting of the committee on Tuesday and may have been referring to the authors of musical and audio-visual works, whose economic interests the Bill seeks to protect. She was responding to concerns voiced by DA MP Dean Macpherson, who described an opinion from state law advisers Johan Strydom and Gideon Hoorn on retrospectivity provisions in the Bill as ‘thin on detail’ and little more than an attempt to ‘float’ it on the assumption that regulations will address any remaining concerns about their constitutionality. Clauses 5, 7 and 9 of the revised ‘B’ version adopted yesterday evening now reflect the ANC position on retrospectivity, entitling the authors of literary, musical, visual artistic and audio-visual works to a share in the royalties from copyright assigned prior to the commencement of the proposed new piece of legislation. To that end, the clauses add three subs-sections to the Act: 6A(7)(b), 7A(7)(b) and 8A(5)(b), each requiring the Minister to table draft regulations and an impact assessment in the National Assembly for approval in accordance with the process set out in the Bill’s clause 38 (short title and commencement), making it obligatory for regulations to be in place before the retrospectivity provisions come into effect. Also on the ANC’s insistence, among other things, clause 25 on collecting societies inserts sub-section 22B(4)(b) in the Act requiring a collecting society seeking accreditation to meet ‘the prescribed transformation requirements ... related to management, ownership and representivity’.  DA objections to a raft of clauses in the Bill will be included in a committee report accompanying it to the House for a second reading debate scheduled to take place next week.


Legislation: Petition urges Parliament rethink on Copyright Bill

Publish date: 05 December 2018 Issue Number: 4602 Diary: Legalbrief Today A petition urging Parliament not to pass the controversial Copyright Amendment Bill was presented on Monday to Trade and Industry Minister Rob Davies, according to a media statement issued by PEN Afrikaans the same day. Signed by more than 3 000 individuals, organisations, foundations and businesses likely to be adversely affected by fair use provisions in the Bill, the petition also sought to alert the Minister and Parliament to concerns about the constitutionality of several key clauses and the extent to which others fly in the face of international copyright treaties to which SA has acceded, reports Pam Saxby for Legalbrief Policy Watch. In addition, procedures followed by the National Assembly’s Trade and Industry Committee in processing the Bill are perceived to have been flawed. A ‘B’ version of the Bill adopted last month by the committee is scheduled for a second reading debate in the House this afternoon. As Legalbrief Today has already reported, the ANC’s hybrid model anchored in fair use was introduced to the committee in May as a policy position perceived to be more flexible than fair dealing – and most appropriate given SA’s unique situation in the context of international best practice. However, ANC MP David Mahlobo’s proposal that a definition of the model and related exemptions be spelled out in a schedule to the Bill went unheeded. Regarding its constitutionality, state law advisers Johan Strydom and Gideon Hoorn believe that, while retrospectivity provisions in the Bill are ‘assailable in law’, the regulations could counter this by striking an appropriate balance between competing interests. On the issue of international copyright treaties, University of Cape Town intellectual property unit director Tobias Schonwetter is confident that the Bill is consistent with a three-steps test reflected in the 1886 Berne Convention for the protection of literary and artistic works and the 1995 World Trade Organisation agreement on trade-related aspects of intellectual property rights. However, according to the petition, ‘fair use does not mean use that is fair’. As a ‘doctrine derived from US law’, fair use is ‘open-ended’ – requiring the courts to determine ‘whether a particular use qualifies as fair’ and therefore likely to result in ‘significant legal uncertainty’. By contrast, as ‘an established part of South African copyright law’ fair dealing works with ‘a closed list of permitted uses’. Against that backdrop, stakeholders behind the petition believe that ‘existing fair dealing provisions should … have been expanded’. Regarding clauses in the Bill providing for ‘wide-ranging exceptions to copyright protection’ for educational purposes, the petition warns that this ‘could discourage authors from writing books’ and publishers from taking the financial risk of publishing them. While the stakeholders concerned ‘fully support the right to access to information’, they believe that, by creating ‘a climate’ permitting the unlimited duplication of copyright works, the Bill threatens the very survival of ‘by far the largest sector within the book publishing industry’. Procedurally, the Bill’s passage through Parliament thus far has been fraught with administrative blunders, as Legalbrief Today has regularly reported. Not only was a version of the Bill tabled in the National Assembly so flawed it had to be completely reworked: new clauses beyond its scope were advertised out of context on three separate occasions, while the panel of technical experts was only approached for input towards the end of the committee process. Perhaps most worryingly, very few committee members understood the complex issues underpinning its provisions despite detailed, repeated explanations from parliamentary legal adviser Charmaine van der Merwe each step of the way. 


Legislation: Copyright Bill to be finalised by end March

Publish date: 18 January 2019 Issue Number: 4619 Diary: Legalbrief Today The NCOP Committee on Trade and International Relations plans to complete its work on a ‘B’ version of the 2017 Copyright Amendment Bill before the end of March, according to a meeting schedule circulated this week. The controversial proposed new piece of legislation will compete for members’ attention with the National Credit Amendment Bill, a ‘B’ version of the 2017 National Gambling Amendment Bill, a ‘B’ version of the 2016 Performers’ Protection Amendment Bill and a ‘B’ version of the 2015 Foreign Service Bill – in the run-up to a general election, notes Pam Saxby for Legalbrief Policy Watch.  As Legalbrief Today has regularly reported, the Copyright Amendment Bill is probably one of the most challenging pieces of legislation ever to have come before Parliament. Deeply flawed when it was tabled, the proposed new statute has since been completely reworked but is nevertheless still largely unfathomable by the average lay person – even with constant references to the Act itself. According to a media statement issued last November when the National Assembly’s Trade and Industry Committee adopted the Bill, once in force it is expected to ‘modernise’ the Act and align it with key international treaties – ‘while addressing unfair contracting between creators or performers and copyright owners’. This is noting that ‘many creators and performers have not effectively benefited from their work and have even died in poverty’. These noble intentions notwithstanding, both the Bill’s contents and the parliamentary process to date have become sources of considerable concern to some stakeholders. Could superficial deliberations in the NCOP be the final straw?


Legislation: Copyright Bill NCOP process short-changed

Publish date: 18 February 2019 Issue Number: 4640 Diary: Legalbrief Today The contentious Copyright Amendment Bill’s already poorly-managed passage through Parliament has taken a turn for the worse, notes Pam Saxby for Legalbrief Policy Watch. Approved by the National Assembly in November, a ‘B’ version of the Bill is now before the NCOP Committee on Trade and International Relations – which has been persuaded that one week is sufficient time to prepare written submissions in anticipation of a final round of public hearings. Friday’s committee notice calling for input tends to suggest that a suitable date for oral presentations has yet to be identified. Having only been briefed on this complex, often technical proposed new statute last Wednesday (along with a ‘B’ version of the 2016 Performers Protection Amendment Bill) perhaps members are still coming to terms with the magnitude of the task before them. This is especially given that they are also expected to process the 2018 National Credit Amendment Bill, the 2018 National Gambling Amendment Bill and the 2015 Foreign Service Bill before SA’s fifth democratic Parliament rises on 20 March for the elections. As Legalbrief Today has regularly reported, Parliament and government have been ‘urged’ on numerous occasions not to downplay the unintended consequences for publishers and authors of fair use and copyright protection exception provisions in the Copyright Amendment Bill. According to a media statement issued last October by the International Federation of Reproduction Rights Organisations, its members are especially concerned about ‘reports of insufficient research and impact assessment’ in developing the Bill – ‘despite warnings by copyright experts engaged by Parliament’ that the proposed new statute is ‘in conflict’ with SA’s obligations under the Berne Convention and the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights Agreement. Similar reservations have been articulated in press releases from the International Authors Forum, the International Publishers Association and the Publishers’ Association of SA. Yet ‘some’ stakeholders are looking forward to the Bill’s promulgation and implementation – or so parliamentary legal adviser Charmaine van der Merwe told members of the National Assembly’s Trade and Industry Committee last November. They are simply not as vocal in their support as critics have been in expressing their opposition. She may have been referring to the authors of musical and audio-visual works, whose economic interests the Bill seeks to protect. When the committee adopted the Performers Protection Amendment Bill a few days later, it issued a media statement focusing on provisions in each Bill aimed at addressing ‘unfair contracting between creators or performers and copyright owners’, many of whom ‘have not effectively benefited from their work and have even died in poverty’. The statement also noted the importance of ‘modernising’ existing legislation and aligning it with international treaties SA apparently still ‘intends to ratify’. Noble intentions notwithstanding, this was a gross over-simplification of provisions in both pieces of proposed new legislation. Comment is sought within the same timeframe on the Performers Protection Amendment Bill.


Legislation: Copyright, Performers Protection Bills process stalls

Publish date: 28 February 2019 Issue Number: 4648 Diary: Legalbrief Today The volume of written submissions on ‘B’ versions of the 2017 Copyright Amendment Bill and 2016 Performers Protection Amendment Bill now before the NCOP Committee on Trade and International Relations could merit another round of public hearings, reports Pam Saxby for Legalbrief Policy Watch. This is noting that, while an NCOP committee is not obliged to conduct hearings on section 75 Bills not directly affecting the provinces, it may choose to do so where written submissions point to the need for interactions with stakeholders (Parliamentary Monitoring Group). Stakeholder input on the two Bills was due to be considered yesterday. However, apparently overwhelmed by the number of submissions received, members agreed that the Department of Trade and Industry should be given another week to prepare its response document. Meanwhile, National Assembly Trade and Industry Committee reports tabled in the House on Tuesday have recommended that it ‘accede’ to two World Intellectual Property Organisation treaties: one on copyright, the other on performances and phonograms. A memorandum on the objects of the Copyright Amendment Bill notes that it is ‘strategically aligned’ to both.


Legislation: Copyright Amendment Bill a done deal?

Publish date: 07 March 2019 Issue Number: 4653 Diary: Legalbrief Today The 2017 Copyright Amendment Bill’s ‘B’ version is expected to complete its passage through Parliament this month and will not be subjected to more public hearings, reports Pam Saxby for Legalbrief Policy Watch. The same process will apply to the ‘B’ version of the 2016 Performers’ Protection Amendment Bill. According to NCOP Trade and International Relations Committee chair Eddie Makue, only substantiated stakeholder proposals for further changes will be considered next week in anticipation of the adoption of both proposed new statutes on 20 March. Since the National Assembly’s five-year term is scheduled to end that day, it seems unlikely that the NCOP committee will make recommendations for any changes. This is because they would need to be approved by the National Assembly’s Trade & Industry Committee and endorsed by the House – requiring it to reconvene. Makue announced his committee’s plans for processing the two Bills at yesterday’s meeting, following presentations from the Department of Trade & Industry summarising its response to the latest batch of written submissions. He has since released a media statement ‘applauding’ the ‘broad participation of stakeholders’ in a parliamentary process perceived in some quarters to have been poorly managed, fragmented and largely superficial. Describing calls for the Copyright Amendment Bill to be ‘suspended’ as an ‘overwhelming view’, Deputy DG Evelyn Masotja said that retaining ‘outdated legislation’ that does not adequately protect ‘the rights of authors, performers and copyright owners’ would not be ‘in the broader public interest’. While her presentation on stakeholder concerns about provisions in the Bill dealing with orphan works, commissioned works, fair use, contractual freedom, digitisation and penalties for non-reporting noted the comments concerned, they were largely dismissed in that context. In a presentation on the Performers’ Protection Amendment Bill, Masotja expressed dismay at input from some stakeholders apparently questioning the practicality of registering every ‘fixed’ or ‘unfixed’ repeat public broadcast or communication of a performance – and proposing that the fine for non-compliance should not exceed R100 000. The extent to which performers continue to die as ‘paupers’ necessitated both clauses, which will be retained. Endorsing Masotja’s presentation, parliamentary legal adviser Charmaine van der Merwe reassured committee members about the constitutionality of the Copyright Amendment Bill – among other things by drawing attention to requirements for an impact assessment and comprehensively consulted regulations to be in place before its royalty sharing retrospectivity provisions (clause 7) take effect. In her view, there has been a tendency throughout the process for stakeholders unhappy with the policy underpinning the Bill to question its constitutionality. Van der Merwe also explained the rationale behind the prospective application of the Bill’s ‘reversionary’ clause 23, which limits to 25 years the validity of an agreement assigning copyright in a literary or musical work. Without her input, members of the National Assembly’s Trade & Industry Committee would have been lost. It was clear from the reaction of NCOP committee members that they, too, will be guided by her thinking. The department’s full, 137-page response document can be made available on request.


Legislation: More compromises on Copyright Bill process?

Publish date: 13 March 2019 Issue Number: 4657 Diary: Legalbrief Today While the NCOP’s Trade and International Relations Committee still intends adopting the Copyright Amendment Bill’s ‘B’ version on 20 March, plans articulated last week by committee chair Eddie Makue that would have seen substantiated stakeholder proposals for improving its contents considered today appear to have been scuppered. According to this morning’s committee meeting schedule, members will instead focus on finalising the 2018 National Gambling Amendment Bill and 2015 Foreign Service Bill. With the NCOP due to rise on 28 March in anticipation of the 8 May elections, time is clearly of the essence – and the complex Copyright Amendment Bill will apparently bear the brunt of this, notes Pam Saxby for Legalbrief Policy Watch.  Given Makue’s reference during last Wednesday’s meeting to section 72 of the Constitution and his view that – by calling for and considering written submissions on the Bill from stakeholders – the committee has fulfilled its obligation to ‘facilitate public involvement’ in the NCOP process – one thing is certain. Members believe there are no substantiated stakeholder proposals for improving the Bill’s contents to consider. If there were, surely more than two hours would have been allocated to pre-adoption deliberations next week – not only on the Copyright Amendment Bill but also on the 2016 Performers’ Protection Amendment Bill’s ‘B’ version?


Legislation: NCOP committee adopts Performers’ Protection Bill

Publish date: 22 March 2019 Issue Number: 4663 Diary: Legalbrief Today The 2016 Performers Protection Amendment Bill’s ‘B’ version adopted on Wednesday by the NCOP’s Trade & International Relations Committee will soon be on its way to President Cyril Ramaphosa for signature. Overshadowed by the controversial, more complex Copyright Amendment Bill and inextricably linked to it, once in force the proposed new piece of legislation is expected to go some way towards curbing the non-payment of royalties to performers and the piracy of their material. This is according to a memorandum on the Bill’s objects, which among other things also refers to strengthened technological protection measures, notes Pam Saxby for Legalbrief Policy Watch.  Underpinned by principles enshrined in various World Intellectual Property Organisation (WIPO) treaties, the Bill includes provisions making it mandatory for the rights of the producer of an audio-visual or sound recording of a performer’s work to revert to that performer after 25 years from the date of the written agreement concerned. A related provision spells out the rights of such a producer and performer in respect of remuneration for ‘the direct or indirect use’ of a sound recording published for commercial purposes, for broadcasting or for communication to the public’. The ratification of two WIPO treaties with implications for the Bill was approved this month by the National Assembly and awaits the NCOP’s endorsement. One treaty affects performances and phonograms; the other, focusing on audio-visual performances, is commonly known as the 2012 Beijing treaty.


Legislation: Copyright Bill stakeholder engagement a charade?

Publish date: 18 April 2019 Issue Number: 4682 Diary: Legalbrief Today Many Copyright Amendment Bill stakeholders at Monday’s ‘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, reports Pam Saxby for Legalbrief Policy Watch. The invitation was extended ‘only’ to stakeholders whose e-mail addresses featured in its cover note and was sent last Thursday, 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 spokesperson, 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 deliberations 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 a panel of experts only called in as the process wound down. 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 provide context long overtaken by events. 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.


Legislation: Copyright Bill issues touched on by Ramaphosa

Publish date: 25 February 2020 Issue Number: 4883 Diary: Legalbrief Today In determining the fate of the 2017 Copyright Amendment Bill, ‘all’ legislation applicable to ‘artists, creators, educators, broadcasters and owners’ ‘must’ be considered, according to President Cyril Ramaphosa. He made this observation in the official version of a eulogy delivered on Saturday at the funeral of the late Joseph Shabalala, founder of Ladysmith Black Mambazo – ‘the first and the only full-time professional choir (in SA) that could live on royalties and concert fees alone’. ‘In the memory of Bab’ Shabalala, let us ensure that our artists receive their dues, that they are not exploited, and that their rights to their works are protected for their benefit and for the benefit of their descendents,’ the President said, reports Pam Saxby for Legalbrief Policy Watch.  Although the eulogy made no mention of the 2016 Performers’ Protection Amendment Bill, Ramaphosa has expressed reservations about the constitutionality of both pieces of legislation (TimesLIVE), which were sent to his office last March for signature. However, although the public consultation and broader participation process followed by Parliament featured in discussions during a meeting of the National Assembly’s Sports, Arts & Culture Committee last November, there have been no official pronouncements on the President’s intentions. This despite widespread media coverage of conflicting views on the likely impact of the Copyright Amendment Bill in particular, should it ever become law. Most recently, concerns about the Bill’s negative implications for ‘big US entertainment companies under the umbrella of the International Intellectual Property Alliance’ (Daily Maverick) prompted the Office of the US Trade Representative in Washington to conduct a country practice review of SA’s eligibility for special status in terms of the US generalised system of preference. According to the Department of Trade & Industry, ‘the South African Government has been engaged constructively in this process and the review is still unfolding’.


Legislation: Copyright Bill proceedings off to a shaky start

Publish date: 19 August 2020 Issue Number: 5003 Diary: Legalbrief Today An urgent need to protect the local authors of creative works from ongoing exploitation prompted members of the previous Parliament’s National Assembly Committee on Trade & Industry to proceed with processing the 2017 Copyright Amendment Bill and 2016 Performers’ Protection Amendment Bill without further ‘research’. This is according to the media statement on a virtual meeting held yesterday, at which members of the National Assembly committee established under SA’s sixth democratic administration were briefed on constitutional concerns prompting President Cyril Ramaphosa to return the two Bills to Parliament. Unfortunately, at the time of writing no audio-visual recording of the meeting’s proceedings was available. However, notes Pam Saxby for Legalbrief Policy Watch, yesterday’s somewhat superficial statement tends to point to the need for at least one workshop on the complex issues underpinning the Copyright Amendment Bill in particular. This is given the worrying levels of confusion and misunderstanding still displayed by most members of the previous committee after 18 months of deliberations on provisions in a Bill that was eventually completely reworked and still found wanting – but passed by both Houses anyway, shortly before the previous Parliament rose for last year’s elections. Worryingly, the committee now tasked with addressing the President’s concerns is apparently expected to grasp the nettle after one briefing. Members are scheduled to meet next week to discuss ‘the way forward’.


Legislation: Copyright Amendment Bill briefing unpacked

Publish date: 20 August 2020 Issue Number: 5004 Diary: Legalbrief Today The ‘policy rationale’ underpinning the 2017 Copyright Amendment Bill (and, by implication, the 2016 Performers’ Protection Amendment Bill) forms only one section of a comprehensive background document made available last week to members of the National Assembly’s Trade & Industry Committee. Its ‘critical issues’ were unpacked on Tuesday during a painstaking briefing from Trade, Industry & Competition Minister Ebrahim Patel on reservations expressed by President Cyril Ramaphosa about the Bills’ constitutionality. This was noting that, when a Bill is sent back to Parliament, the National Assembly committee concerned is required to confine its deliberations to addressing the matters raised. No changes may be made other than those seeking to accomplish this, notes Pam  Saxby for Legalbrief Policy Watch. According to a sound recording of the meeting (Parliamentary Monitoring Group), focusing on the Copyright Amendment Bill’s ‘B’ version, Patel emphasised the importance of ‘striking a fair balance’ between the interests of a work’s creator/author, its copyright owners and the users of that work. In that context, he drew attention to provisions aimed at facilitating public access to a creative work; the ‘significant commercial interests in each corner of the debate’ on fair use; and the extent to which, in SA, the ‘legal monopoly’ established for a set period by way of a copyright agreement had, in the context of past injustices, tended to be open to abuse. With that in mind, the Minister went to great lengths to explain, in layman’s terms, the intention of the Bill’s contentious retrospectivity provisions and their implications in respect of widespread concerns about the arbitrary deprivation of property. This was to provide for redress where past ‘unfair contractual arrangements’ had deprived the authors and creators of works still ‘generating profits’ from receiving royalties – and in which copyrights were sold ‘well below their true market value’. According to Patel, the view of the previous Parliament’s committee’s was that the urgency of rectifying this injustice was such that the matter could not be left to separate legislation, which would require extensive research. Apparently suggested by one parliamentary legal adviser as a possible alternative (in the light of concerns expressed by the Office of the State Law Adviser), this option was not pursued. Instead, it was agreed that the clause would not be operationalised until an impact assessment had been conducted and the necessary regulations approved by the National Assembly. Having been alerted to the ‘constitutional risks’ associated with certain ‘anomalies’ flowing from these provisions, the Minister told members that an ‘across the board’, ‘indiscriminate’ application of the Bill’s retrospectivity clauses could even ‘bestow a windfall’ on undeserving authors/creators already overpaid for their work, as well as those paid fairly. On that basis, he recommended that members ‘reconsider’ the clauses concerned and find an ‘alternative mechanism’ for redress. The thrust of Patel’s briefing on this controversial matter was not accurately reflected in Tuesday’s committee media statement. Neither did the statement refer to his observations in respect of Ramaphosa’s reservations about the constitutionality of clauses in the Bill dealing with ministerial powers; his concerns about the constitutional implications of what was widely perceived as inadequate public consultation on changes to clauses in the original Bill leaning towards fair dealing; ‘the application of the three-step test as a measure of arbitrariness’; and the Bill’s implications for SA’s obligations under various international treaties. His department has since issued its own, more comprehensive, statement. ‘I want to very respectfully suggest that … the … committee would … be well advised to consider the concerns expressed by the President, particularly in relation to ratified treaties,’ the Minister said at the meeting, adding that, in ‘any matter’, the Constitutional Court ‘is obliged to consider SA’s international obligations’. In that regard, Patel suggested that it might be a ‘worthwhile exercise’ (albeit time-consuming) for the committee to compare clauses identified by the President with relevant provisions in the international treaties to which SA is already (or about to become) signatory.


Legislation: Copyright, Performers’ Protection Bills to be re-tagged?

Publish date: 26 August 2020 Issue Number: 5008 Diary: Legalbrief Today Department of Trade, Industry & Competition Director-General Lionel October and parliamentary legal adviser Charmaine van der Merwe yesterday urged the National Assembly’s Trade & Industry Committee to err on the side of caution when addressing President Cyril Ramaphosa’s concerns about parliamentary procedures followed in processing the 2017 Copyright Amendment Bill and 2016 Performers’ Protection Amendment Bill. As a result, having unanimously agreed with both parties, the committee is likely to recommend to the House that the Bills are re-tagged as section 76 pieces of proposed new legislation given their possible implications for provincial trade and cultural matters, notes Pam Saxby for Legalbrief Policy Watch. Regarding opportunities for public participation, the committee will probably recommend that members of the public are afforded another opportunity to comment on clause 13 of the Copyright Amendment Bill’s ‘B’ version – inserting a fair use clause in section 12 of the principal statute to provide for ‘general exceptions from copyright protection’. This is noting that, regarding the President’s concerns about inadequate public participation, his letter refers expressly to the proposed new section 12A. The committee’s decision on procedural matters followed a lengthy presentation from Deputy Director-General Evelyn Masotja on the background to each Bill – including the implications of relevant provisions in international treaties and 2011 Copyright Review Commission report recommendations understood to have informed the drafting process. Explaining the plethora of longstanding issues expected to be addressed by each Bill once operationalised, Masotja provided what may well have been an overwhelming amount of technical detail. Only two members asked questions for clarity: the ACDP’s Wayne Thring (who also suggested a ‘crash course in copyright law’ might be helpful) and the DA’s Dean Macpherson (who was concerned that the department may be ‘glossing over’ issues raised not only by the President but also by SA’s trading and investment partners). October assured Macpherson that every concern identified in Ramaphosa’s letter to National Assembly Speaker Thandi Modise will be addressed – and that the department shares most of the President’s reservations, as Minister Ebrahim Patel indicated during the previous meeting (on which Legalbrief Today has already reported). Van der Merwe’s opinion – presented to the committee last week – provides valuable insight into what may ensue as the process of addressing Ramaphosa’s other reservations unfolds. Yesterday, its sections on procedural issues were unpacked once again, adding substance to October’s advice and therefore instrumental in persuading members to agree unanimously on the best way forward regarding tagging and public participation. The committee is scheduled to meet at 09:00 today to consider other issues raised in the President’s letter.


Legislation: Decision on Copyright Bill process next week?

Publish date: 27 August 2020 Issue Number: 5009 Diary: Legalbrief Today A process for addressing President Cyril Ramaphosa’s concerns about the constitutionality of certain clauses in the 2017 Copyright Amendment Bill’s ‘B’ version is expected to emerge from next Wednesday’s meeting of the National Assembly Committee on Trade & Industry. In anticipation of this, members have been asked to develop a view on the best way forward – in consultation with their respective parties. Having received more details yesterday on the rationale behind parliamentary legal adviser Charmaine van der Merwe’s opinion on each of the President’s more substantive reservations, members agreed on the need for more time to consider the complexities entailed in determining how to proceed. Unfortunately, her updated presentation is not yet publicly available, notes Pam Saxby for Legalbrief Policy Watch.  However, Van der Merwe’s input yesterday once again drew attention to the limitations of a Constitution section 79 referral, which confines the committee to deciding whether each concern raised by the President is justifiable and proceeding in terms of processes prescribed in the Joint Rules of Parliament. Distinguishing between substantive and procedural defects in a remitted Bill, Rules 205 to 208 spell out the process to be followed by a National Assembly committee and the House, while Rules 209 to 2012 apply to the NCOP and its committee. In the context of the President’s reservations about the Copyright Amendment Bill in particular, these rules point to the likelihood of a lengthy second passage through Parliament. Two other developments emerging from yesterday’s meeting may also have implications for the parliamentary process as it unfolds. They were informed by the committee’s decision on Tuesday to recommend in its report to the House that the Bill be re-tagged as a section 76 piece of legislation with implications for the provinces – and that members of the public are afforded an opportunity to comment on the Bill’s clause 13. This is noting that the contentious clause seeks to insert sections 12A, 12B, 12C and 12D into the 1978 Act with the aim of providing for ‘general exceptions to copyright protection’. This goes beyond the scope of the original Bill and should therefore have been ‘put out for public comment’ – at least in the President’s view. In expressing this reservation, the President’s letter refers only to ‘section 12A’. However, during yesterday’s meeting Van der Merwe told members that opening the sub-clause on section 12A to public comment will automatically open sub-clauses on sections 12B, 12C and 12D to the same public participation process. As a result, the entire ‘fair use’ clause will be re-opened for stakeholder input if this recommendation is adopted by the House. Meanwhile, committee chair Duma Nkosi has already notified his counterpart in the NCOP’s Trade & Industry, Economic Development, Small Business Development, Tourism and Employment & Labour Committee of the likelihood that the Bill will be re-tagged. During yesterday’s meeting, he alluded to the possibility of joint meetings but did not elaborate.


Legislation: Copyright Bill legal opinion unpacked

Publish date: 28 August 2020 Issue Number: 5010 Diary: Legalbrief Today Copyright Amendment Bill provisions underpinning President Cyril Ramaphosa’s more substantive concerns (as opposed to those of a more procedural nature) are unpacked in a presentation document made available yesterday by the Parliamentary Monitoring Group, writes Pam Saxby for Legalbrief Policy Watch. Prepared by senior parliamentary legal adviser Charmaine van der Merwe, the document informed Wednesday’s National Assembly Trade & Industry Committee briefing. It provides some insight into the rationale behind Van der Merwe’s opinion on the President’s reservations about the constitutionality of certain clauses in the 2017 Bill’s ‘B’ version. Identified in the presentation document, some of these provisions could be perceived to open the door to what she describes as the ‘retrospective and arbitrary deprivation of property’. Others allow certain legislative powers to be delegated to the Minister; and prescribe the types of situations in which’ general exceptions to copyright protection’ would apply. The document also explains why Van der Merwe believes the President’s concern that the Bill may fly in the face of SA’s international treaty obligations falls outside the scope of a Constitution section 79 referral. Regarding the Bill’s ‘retrospectivity clauses’ – and the extent to which these could be perceived potentially to ‘deprive copyright owners of property without sufficient reason’, resulting in its ‘substantial and arbitrary deprivation’ – Van der Merwe believes they are ‘too broad to be corrected by regulations dealing with procedure’. Since ‘secondary legislation cannot make primary legislation constitutional’, she has advised the committee to amend the clauses concerned ‘to provide for prospective operation only’. However, the possibility of reversing these amendments appears not to have been ruled out should ‘research’ eventually prove the constitutionality of such a move. On the issue of delegating certain other legislative powers to the Minister, Van der Merwe’s view is that the clauses concerned ‘fall within the limits of implied legislative delegation … allowed by the Constitution’. She also believes that – in the context of international treaty obligations requiring legislated copyright protection exceptions to pass the ‘three steps test’ – given the economic and social and benefits … a fair use exception would bring’, South African courts are likely to require ‘strong and persuasive arguments that fair use does not comply with the … test’. This tends to suggest that, in opening the Bill’s general exceptions to copyright protection clauses to public comment (as the committee intends recommending), the arguments in any submissions opposing them could well be dismissed by ANC representatives serving on the committee – whose policy position holds sway whenever decisions are put to the vote. Van der Merwe’s contention that compliance with international treaties falls outside the scope of a Constitution section 79 referral may complicate discussions next week, when members are expected to reach a decision on the most appropriate process for addressing the President’s reservations. This is especially given Trade, Industry & Competition Minister Ebrahim Patel’s remark that the committee would be ‘well advised’ to consider these concerns ‘in relation to ratified treaties’ – as Legalbrief Today reported at the time. In Van der Merwe’s view, should the committee choose to advise the House that ‘the President’s reservation related to international treaties is not a legal section 79(1) ground and may thus not be considered’, it should nevertheless ‘assure the House that wherever the treaties affect any … constitutional concerns raised by the President, … (they) will be taken into account’. The implications of not fully accommodating the President’s reservations are clearly articulated in footnotes to page 17 of the presentation document. On Wednesday, expanding on these notes, Van der Merwe confirmed that Parliament may not approach the Constitutional Court for a ruling on a clause deemed defective by the President. However, should the President be dissatisfied with the committee’s reasons for choosing not to rectify a perceived defect, sub-section 79(4)(b) of the Constitution allows him to refer the Bill to the Constitutional Court for a ruling. Should the President be satisfied that all his reservations have been adequately addressed, sub-section 79(4)(b) requires him to assent to the Bill and sign it into law.


Legislation: Copyright, Performers’ Protection Bills process stalls

Publish date: 02 September 2020 Issue Number: 5013 Diary: Legalbrief Today The process to be followed in addressing President Cyril Ramaphosa’s reservations about the constitutionality of the 2017 Copyright Amendment Bill’s ‘B’ version and a ‘B’ version of the 2016 Performers’ Protection Amendment Bill will not be discussed until October. This, notes Pam Saxby for Legalbrief Policy Watch,  was agreed at yesterday’s meeting of the National Assembly Committee on Trade & Industry, when the ANC’s committee whip, Judy Hermans, requested the item’s removal from the agenda and a deferral of further deliberations on the Bills until ‘the fourth quarter’. Her party’s trade and industry study group apparently needs more time to consider recommendations from parliamentary legal adviser Charmaine van der Merwe. The document in which they are unpacked was presented to members during last week’s meeting, as Legalbrief Today has already reported. According to Hermans, her party’s representatives in the National Assembly’s Sport, Arts & Culture Committee are now participating in the discussions concerned. Although none of the opposition party representatives at yesterday’s meeting objected to Herman’s request, given his remarks about the importance of communications between members on any intention to propose the removal of an agenda item, the DA’s Dean Macpherson may have been ready to table his own party’s position on the way forward. Parliament is scheduled to begin its next constituency period at the end of this week and will be in recess until 5 October.


Legislation: Cracks show in Copyright, Performers’ Bills process

Publish date: 07 September 2020 Issue Number: 5016 Diary: Legalbrief Today Procedural issues raised on Friday during a meeting of the National Assembly’s Sport, Arts & Culture Committee tend to point to a fraught process ahead as Parliament attempts to address President Cyril Ramaphosa’s reservations about the constitutionality of the 2016 Performers’ Protection and 2017 Copyright Amendment Bills, suggests Legalbrief's Pam Saxby. Parliamentary Monitoring Group (PMG) audio recordings of proceedings at both meetings of the committee last week suggest that allegations in a DA media statement may have been justified regarding arrangements ahead of Friday’s briefing on the Bills. They apparently left a great deal to be desired. Issued by Tsepo Mhlongo, the statement also underscores the importance of regular communication on administrative matters between the secretariat and committee members – not to mention the need for minutes to be processed in time for the next meeting, rather than weeks later as is generally the habit across all parliamentary committees. The focus of Friday’s meeting was a briefing from the Department of Sport, Arts & Culture on each Bill, the President’s concerns and related issues  – apparently in anticipation of ‘a joint sitting’ with the Trade & Industry Committee and with the aim of ensuring that members are not ‘left behind’. However, it does appear to have been confirmed at short notice, not having featured in the daily updated schedule until Thursday evening. This apparent oversight was debated at great length before the briefing began – and eventually prompted DA representatives to leave the meeting, as Mhlongo’s statement has since confirmed. Interestingly, it draws heavily from presentations to the Trade & Industry Committee by senior parliamentary legal adviser Charmaine van der Merwe. The audio recording refers to a broad agreement on the need for a briefing allegedly reached during a meeting on 1 September, when the department was asked to prepare a document for presentation on Friday. It also refers to a decision at the same meeting on replacing Friday’s scheduled Chess SA briefing with one on the two Bills. However, neither a PMG report nor an admittedly often faint audio recording of proceedings on 1 September suggests that any discussion on these matters took place. On Friday, the secretariat had yet to produce a set of minutes on the meeting, although the audio recording of discussions that day does capture Mhlongo’s remarks about the importance of documents being circulated well ahead of the meeting at which they are to be considered. The briefing presentation was apparently only sent to members on Thursday evening – presumably with an agenda. When he penned his statement, Mhlongo may not have been aware of a development recently communicated to members of the Trade & Industry Committee involving the participation of ANC representatives in both committees in their party’s parliamentary study group on Van der Merwe’s recommendations for addressing the President’s reservations. The DA’s Dean Macpherson was present when this was announced and an item on the process for dealing with the President’s concerns removed from the meeting’s agenda. Although Macpherson noted the short notice at which this had been communicated, he did not oppose the request, as Legalbrief Today reported at the time. Against that backdrop, an assertion in Mhlongo’s statement that the ANC ‘seems set to once again bulldoze the Copyright Amendment Bill through (Parliament)’ regardless of its flaws and ‘without following due process’ may not be justified in the broader context of developments in the Trade & Industry Committee. A joint statement clarifying the intentions of the two committees regarding meetings on the Bills would nevertheless be helpful. To date, Trade & Industry Committee chair Dumo Nkosi has only alluded to discussions on the broader process with his NCOP counterpart – although an audio recording of the committee’s briefing on 25 August from Trade, Industry & Competition Minister Ebrahim Patel does refer to the presence of Department of Sport, Arts & Culture representatives. Whatever may or may not have transpired at all these meetings, intra and inter-committee communications have been found wanting and a possible misunderstanding about procedural obligations exposed. Given what happened during the Bills’ first passage through Parliament, when the process was perceived by some stakeholders to have been compromised (as the President appears to agree), this may need to be nipped in the bud. In view of the strong views about both Bills expressed by so many different interest groups, there is far too much at stake for any cracks to be allowed to widen.




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