PLEASE NOTE: On 12 January 2022, the authorship of Legalbrief Policy Watch will change hands. In anticipation of this, POLICY WATCH SA will no longer feature Pam Saxby's reports on the parliamentary process.

Copied below, in reverse date order, are summaries of the most recent parliamentary committee meetings on the remitted 2017 Copyright Amendment Bill and 2016 Performers’ Protection Amendment Bill. They were first published in Legalbrief Today under 'Policy Watch'. Juta Law owns the copyright to these summaries, which is why several days are allowed to lapse before they appear here (with Juta’s permission).

Before proceeding, you are advised to read this summary of the process. For more detailed reports on developments during National Assembly Trade & Industry Committee meetings on the Bill between May 2017 and September 2020

8 September 2021

A briefing on the possible implications of written submissions on certain sections of the 2017 Copyright Amendment Bill originally scheduled for 13 August has been postponed five times by the National Assembly’s Trade & Industry Committee – to 17, 18, 27 and 31 August and, most recently, to 1 October. It has now disappeared completely from the committee meetings schedule. Parliament will soon adjourn for a 13 September to 1 November pre-local government elections constituency period.

27 August 2021

All written submissions on clauses in the remitted 2017 Copyright Amendment Bill advertised in June for comment have finally been published. Many include input on clauses not reopened for public consultation; the process followed by the previous Parliament’s National Assembly Trade & Industry Committee when the Bill was reworked; and the remitted 2016 Performers’ Protection Amendment Bill. The release of the submissions follows widespread concerns that documents automatically made publicly available in hard copy form during pre-Covid-19 State of Disaster committee meetings are now often difficult to access, notes Pam Saxby.

Links to the submissions are included a media statement issued yesterday, among other things explaining that they were withheld pending the conclusion of a process apparently prescribed in the 2000 Promotion of Access to Information Act. According to the latest Parliamentary Monitoring Group (PMG) schedule of meetings, the committee is expected to be briefed on the documents next week – today’s meeting having been postponed to 31 August.

This tends to point to more changes to a committee programme adopted on 17 August, allowing members until 14 September to complete their work on the two remitted Bills. According to a PMG report on the meeting concerned, deliberations on the submissions were expected to begin on 1 September and revised versions of both Bills considered two weeks later in anticipation of being tabled in the House for adoption and onward transmission to the NCOP for concurrence. Now that the Bills have been retagged as section 76 legislation affecting the provinces, the NCOP's public participation process could entail hearings on each Bill in its entirety, as Legalbrief Today has already reported.

13 August 2021

This week’s public hearings on remitted ‘B’ versions of the Copyright Amendment Bill and Performers’ Protection Amendment Bill clearly illustrated the gulf between stakeholders opposing the South African Government’s apparent predilection for a fair use approach to reforming existing copyright law – and those who would like to see the two Bills enacted and operationalised in their present form, as a matter of urgency. Despite having been asked to confine their input to commenting on sections of the Copyright Amendment Bill identified by President Cyril Ramaphosa in the context of broader constitutional concerns, many stakeholders from each camp used the opportunity to draw attention to other issues they believe were overlooked by the previous Parliament’s National Assembly Committee on Trade & Industry, reports Pam Saxby.

Not having been given adequate opportunities to participate in that committee’s public consultation process (widely perceived to have been inadequate), fair use detractors across the full range of industry-specific organisations represented during this week’s hearings drew attention to a plethora of potentially negative financial implications for local creatives should the fair use approach continue to hold sway. The previous committee’s members and their chair, Joan Fubbs, were apparently unaware of these implications – as, indeed, were many MPs in attendance during this week’s hearings (at least, if their questions for clarity were any indication). This notwithstanding, there was consensus among fair use critics this time around that the Bills’ intentions are ‘laudable’, as some presenters described them.

On Thursday, the EFF’s Yoliswa Yako again expressed the view that members would benefit from insight into the implications of fair use now, for ordinary South Africans, as opposed to fair dealing. This despite Tuesday’s workshop, which is understood to have promoted the fair use approach to copyright law reform. Yako’s remarks and many throughout the hearings from ANC representatives on the committee tended to beg several questions. How many committee members have taken the time to read written submissions apparently available since mid-July? Given the complexity of the issues entailed, will it once again be left to Parliament’s legal advisers to drive the process? Will ANC representatives on the National Assembly’s Trade & Industry Committee doggedly insist on quick, cut-and-paste fixes to problematic clauses with wider ramifications?

During Thursday’s hearings, the ANC’s Zolile Burns-Mcanashe repeatedly asked stakeholders critical of the fair use approach to support their arguments with examples of local case law. Each time, he was told that few creatives can afford the legal costs entailed in challenging copyright infringement with fair use implications (nevertheless apparently perpetrated using loopholes in the prevailing legislation). He was also referred to what presenters understood to be numerous US cases clearly demonstrating that fair use has not always benefited creatives in that country.

As the committee’s most vocal and articulate ANC representative, on Wednesday Burns-Mcanashe had regularly alluded to his party’s willingness to consider practical solutions to problematic provisions in the Copyright Amendment Bill. Surprisingly, he had shown special interest in input from experienced legal practitioners familiar with the complexities of international copyright treaties and well-versed in intellectual property law. By the end of the day’s proceedings, however, clearly annoyed by references to expropriation in an oral representation from the Independent Filmmakers Collective, his attitude had hardened. From then on, Burns-Mcanashe repeatedly asked questions for clarity underpinned by his obvious distrust of anyone attempting to protect intellectual property rights.

On Thursday, an impassioned plea from Marah Louw on behalf of the South African Music Performance Rights Association set the stage for similarly heart-wrenching appeals from a raft of organisations in the education and health sectors, associations representing the visually impaired and creative sector stakeholders – all eagerly awaiting the enactment and implementation of both Bills in their present form, albeit slightly tweaked to address the President’s reservations. Most saw a fair use approach to copyright law reform as a panacea to past and apparently ongoing injustices. Many cast aspersions on the motives of corporates, multinationals, legal practitioners and academics opposing the Bills.

In the context of widespread criticism of the process followed by the previous Parliament in reworking and eventually passing the Copyright Amendment Bill, this may have persuaded ruling party representatives in the committee to opt for face-saving, quick-fix solutions to problematic sections identified by Ramaphosa. The other option is for them to recommend to the House that the Bill be withdrawn and completely overhauled. Either way, its supporters are likely to be disappointed. Parliament is in no position to act on their appeals, yet nobody from the ruling party or among fair use lobbyists participating in this week’s hearings appears to have explained this to them. It is with this in mind that questions raised in a publicly available written submission from Stellenbosch University’s Anton Mostert Chair of Intellectual Property Law need to be answered.

During yesterday’s public hearings, oral representations were received from:

  • Southern African Freelancers’ Association

  • International Federation of Film Producers Associations

  • Recording Industry of SA

  • South African Music Industry Council (1)

  • South African Music Industry Council (2) (the only written submission made available)

  • Composers, Authors & Publishers Association

  • Southern African Music Rights Organisation

  • South African Music Performance Rights Association

  • Blind SA

  • Copyright Coalition of SA

  • Caroline Ncube (UCT)

  • Section 27

  • Recreate (whose PowerPoint presentation was not made available)

  • Health Justice Initiative

  • South African National Council for the Blind

  • Cosatu

  • Trade Union for Musicians of SA

None of the written submissions underpinning PowerPoint presentations to which links are provided were made available.

12 August 2021

Tuesday’s workshop on remitted ‘B’ versions of the 2017 Copyright Amendment Bill and 2016 Performers’ Protection Amendment Bill may have compromised their second passage through Parliament, notes Legalbrief's Pam Saxby. According to the DA’s Mathew Cuthbert, during the workshop ‘some people’ were ‘given an opportunity to steer the narrative’. Apparently, several of these ‘people’ also presented their perspectives during yesterday’s public hearings – a move perceived by some members of the National Assembly’s Trade & Industry Committee to have placed them at an advantage during this week’s public hearings. Cuthbert appears to have been referring to authors of the ‘joint academic opinion’. While the hearings were also attended by members of the National Assembly’s Sports, Arts & Culture Committee and the NCOP Committee on Trade & Industry, Economic Development, Small Business Development, Tourism and Employment & Labour, it is not clear if these committees also attended Tuesday’s workshop.

A list of presenters and links to the summaries on which they based their oral representations are provided below. Unfortunately, despite requests for access to the written submissions underpinning these summaries via Parliament’s WhatsApp group for accredited media representatives, at the time of writing they had still not been circulated. However, given that most Legalbrief Today readers are members of the legal profession and are likely to be interested in written submissions from legal practitioners, the South African Institute of Intellectual Property Law (SAIIPL) was approached directly and made their submission available.

During the Bill’s first passage through Parliament, key stakeholders tended to align themselves either with the fair use approach to copyright law or with the fair dealing approach. Yesterday, most presenters favouring the fair use approach emphasised the importance of passing the Bills in their present form as soon as possible. This despite reservations about their constitutionality expressed by President Cyril Ramaphosa when he returned the Bills to Parliament. By contrast, presenters with the legal expertise to analyse the remitted Bills once again attempted to alert the committee to their many pitfalls – including several provisions flying in the face of international treaties on copyright. It is quite possible that today’s hearings will also draw attention to the diametrically opposing views of these two stakeholder groups.

Presenters from the group favouring fair use drew attention to the importance of addressing past injustices; removing restrictions to access to educational publications under existing legislation found to have affected learners from disadvantaged communities in particular; existing restrictions on access to all written publications by people with disabilities; and the implications of prevailing domestic copyright law for many of SA’s cultural and linguistic communities. Their oral representations clearly resonated with ANC representatives on the committee – at least if sentiments expressed in questions posed during the limited time available were any indication.

Most presenters from the group opposing the Bills in their present form made it clear that they nevertheless support the need for copyright law reform broadly articulated in the 2011 copyright review commission report. Yesterday, only a few oral representation from this group demonstrated the level of legal expertise necessary to analyse the remitted Bills in the context of the complex matters they seek to cover and against the backdrop of international copyright treaties. Among them was one from the SAIIPL’s Stephen Hollis. As the second oral representation that day, his was surprisingly well received by ANC representative on the committee. Many of its key points were later reiterated in other presentations.

Responding to their questions, Hollis alluded to the potential for ‘progressive legal solutions’ and ‘certain measures’ the committee may wish to consider. These apparently include ‘uncoupling’ the Performers’ Protection Amendment Bill from the Copyright Amendment Bill process, making certain minor changes and passing it as soon as possible to address matters requiring urgent attention. Hollis nevertheless drew attention to the importance of ensuring that the ongoing legislative process is informed by an independent legal analysis of the Copyright Amendment Bill as it now stands, in its entirety; an independent legal opinion from senior counsel on the constitutionality of far more clauses and provisions than those recently published for further comment; and a comprehensive socio-economic impact assessment. While a direct, brutally critical oral representation from Stellenbosch University’s Sadulla Karjiker may have upset ANC representatives on the committee, it left no one in any doubt about the Bill’s shortcomings – not to mention the badly flawed process followed by the previous Parliament’s committee in reworking and adopting it.

As the EFF’s Yoliswa Yako conceded, most (if not all) members of the committee are policy makers with a limited understanding of the complexities of copyright law. With that in mind, she asked for insight into the implications of fair use now, for ordinary South Africans, as opposed to fair dealing. The ANC’s Zolile Burns-Ncamashe repeatedly emphasised the importance of practical solutions in the context of what some colleagues on the committee referred to as SA’s ‘uniqueness’. Burns-Ncamashe also criticised what he considered to be ‘academic posturing’ by some presenters. Against that backdrop, it remains to be seen if the committee will heed input received yesterday that may well have gone beyond the scope of sections of the Copyright Amendment Bill published for further comment but nevertheless did point to a plethora of other shortcomings requiring its attention. Oral representations were heard yesterday from:

  • Sadulla Karjiker (University of Stellenbosch)

  • South African Institute of Intellectual Property Law

  • Klaus Beiter (North-West University)

  • Joint Academic Opinion

  • Library & Information Association of SA

  • Denise Nicholson

  • South African Democratic Teachers Association

  • Publishers’ Association of SA

  • Dramatic, Artistic & Literary Rights Organisation (Pty) Ltd

  • Academic & Non-Fiction Authors Association of SA

  • Multichoice

  • Netflix

  • Personal Managers’ Association

  • Writers Guild

  • South African Guild of Actors

  • Independent Black Filmmakers Collective

  • Independent Producers Organisation and Animation SA

7 June 2021

Input sought on Copyright Bill fair use clauses

The National Assembly’s Trade & Industry Committee has called for written submissions by 9 July on clauses 13, 19 and 20 of the remitted Copyright Amendment Bill – and its alignment with ‘obligations set out in international treaties’. Input is also sought on the remitted Performers’ Protection Amendment Bill in the context of international treaty obligations. However, according to Sport, Arts & Culture Minister Nathi Mthethwa the Copyright Amendment Bill’s fair use provisions and ‘exceptions’ will be ‘retained’ anyway, reports Legalbrief's Pam Saxby. The Minister made these observations in a written reply to questions from EFF North West province representative in the NCOP, Seneanye Lehihi – nevertheless conceding that ‘further legal advice’ is needed regarding the Bills’ compliance with international requirements. Against that backdrop, Mthethwa has estimated that addressing President Cyril Ramaphosa’s reservations about the Bills’ constitutionality will be a ‘five-to-six month process’.

The Minister’s comments tend to suggest the next round of public participation in determining the contents of the re-opened Bills is simply a formality with no bearing on the outcome of the process. However, his reference to recent committee deliberations on the two pieces of proposed new legislation casts an element of doubt on the reliability of his source. No official discussions on the President’s concerns have taken place in the committee since 14 May, when members adopted and tabled a report with proposals for addressing them. During a committee meeting on 26 May, they were notified of steps taken to rectify a procedural error (Parliamentary Monitoring Group). The report covered both Bills, whereas parliamentary rules require a separate report on each one – explaining why, on 19 May, the original committee report was replaced with two. Friday’s call for written submissions followed a decision by the House three days earlier to adopt both reports.

15 May 2021

Recommendations tabled on Copyright, Performers’ Bills

Proposals for addressing President Cyril Ramaphosa’s reservations about the constitutionality of the remitted 2017 Copyright Amendment Bill and 2016 Performers’ Protection Amendment Bill were tabled on Friday in the National Assembly. This follows Wednesday’s meeting of the Trade & Industry Committee, when – as Legalbrief Today has already reported – it was unanimously agreed to recommend to the House that, among other things, sections of the Copyright Amendment Bill’s ‘B’ version dealing with fair use should be re-opened for public comment. According to the committee report, these include provisions in clause 13, which seek to insert section 12A in the Act to provide for general exemptions from copyright protection, reports Pam Saxby.

Noting that retrospectivity provisions in the Bill’s clauses 5, 7 and 9 (dealing with shares in royalties on literary, musical, visual artistic and audio-visual works) ‘may constitute arbitrary deprivation of property’, the committee has also recommended that these clauses be amended ‘to provide for prospective operation only’. In the committee’s view, deleting these provisions would also address the President’s concerns that they confer ‘substantial discretionary powers on the Minister, which may well constitute an impermissible delegation of legislative authority’.

Regarding the President’s reservations about the two Bills’ compliance with international treaties, according to the report the committee expects more light to be thrown on this issue by stakeholder input on fair use provisions in the Copyright Amendment Bill. The committee will then make any amendments deemed ‘necessary’. It will be left to Parliament’s ‘joint tagging mechanism’ to determine whether the Bills have implications for the provinces, in which case they will be re-tagged as section 76 legislation. This is noting that, according to the committee report, ‘after due consideration and having decided to rather err on the side of caution, (the committee) agrees with the President’s reservation that both Bills should have been tagged as section 76 legislation’.

In his budget vote speech on Thursday, Sport, Arts & Culture Minister Nathi Mthethwa welcomed the resumption of deliberations on the two Bills, expressing hope for their speedy ‘conclusion’ so that arts practitioners can operate ‘in a conducive environment’. Given the complexity of the issues, the polarised views of some stakeholders and the possibility that, if re-tagged, the Bills could then be subjected to a public participation process in the provinces, their second passage through Parliament is likely to be arduous. This is especially noting the committee’s intention to refer to ‘the proceedings and all the previous work’ of its predecessor ‘up to the second reading of the Bills’ in December 2018.

13 May 2021

Copyright Bill’s contentious clauses to be revisited?

Proposals that clauses in the 2017 Copyright Amendment Bill’s ‘B’ version providing for fair use and copyright exemptions be re-opened for public comment will be included in the National Assembly Committee on Trade & Industry’s report to the House recommending a way forward with the remitted Bill. This was agreed on Wednesday and recorded in a document likely to inform the report itself. If endorsed by the House, these recommendations will automatically re-open sub-clauses perceived to provide for the arbitrary deprivation of property. In addition, the committee report will recommend that the Bill’s controversial retrospectivity clauses be deleted – also addressing concerns about provisions perceived to give the Minister extraordinary legislative powers, writes Legalbrief's Pam Saxby.

The committee has further agreed to recommend that the Bill be reclassified as a section 76 piece of legislation affecting the provinces. If endorsed by the House, this proposal could re-open the entire revised Bill to public consultations in the provincial legislatures. The same could apply to the revised 2016 Performers’ Protection Amendment Bill, a ‘B’ version of which was remitted with the Copyright Amendment Bill. However, the implications of yesterday’s other decisions for the Performers’ Protection Amendment Bill are not clear at this stage in the process. Neither is it clear how the committee will proceed in its efforts to ensure the Bills’ alignment with yet-to-be-ratified international treaties, although stakeholder submissions on other issues may throw more light on the matter.

While the ANC has suggested alternative mechanisms for urgently addressing past contractual shortcomings and injustices, they are beyond the scope of President Cyril Ramaphosa’s reservations about the Bills’ constitutionality. As a result, they will need to be the focus of an entirely separate process. Yet, had the previous Parliament heeded the advice of then Department of Trade & Industry former director-general Lionel October, a simpler piece of legislation dealing with this matter and responding to recommendations in the 2011 Farlam Copyright Review Commission report might already have been on the statute books.

At an 18 August 2017 meeting of the fifth democratic Parliament’s Trade & Industry Committee, October proposed a phased approach to addressing ‘the most complex issue in the global trade debate’ (fair use versus fair value), as Legalbrief Today reported at the time. This would have seen a far less ambitious piece of legislation developed, leaving contentious issues to separate legislation to be drafted at a later stage – in October’s view giving the department more time to convince ‘powerful vested interests’ of the merits of a system perceived to have ‘worked well’ for the US economy. His suggestions were rejected out of hand by ANC and DA representatives in the committee, as a Parliamentary Monitoring Group sound recording of the meeting confirms.

6 May 2021

No progress with Copyright, Performers’ Protection Bills

A way forward in dealing with 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 is expected to emerge during next week’s meeting of the National Assembly’s Trade & Industry Committee. In anticipation of that, political party representatives in the committee have until Monday to prepare written submissions articulating their positions in response to six key questions. The submissions will be discussed at a meeting apparently already scheduled for next Wednesday, when a report with recommendations will be finalised for tabling in the House, reports Pam Saxby.

Listed in a document prepared by the secretariat – and noting views expressed by parliamentary legal adviser Charmaine van der Merwe – the questions focus on whether the Bills should be tagged as section 76 legislation affecting the provinces; the need for further public participation on the issue of ‘fair use’; whether the Bills comply with the requirements of various international treaties; the merits or otherwise of amending clauses in the Copyright Amendment Bill providing for ‘retrospectivity’ and the Minister’s legislative powers in that regard; and the extent to which copyright exemption provisions in the same Bill ‘constitute (the) arbitrary deprivation of property’ and ‘affect the right to freedom of trade, occupation and profession’.

Eight months have passed since the committee last met to consider how to respond to Ramaphosa’s reservations. During that time, the ANC has developed a position that would have been shared yesterday had the DA’s Dean Macpherson not expressed concern about proceeding with deliberations based on what committee chair Duma Nkosi described as ‘a sense’ of each party’s thinking on the issues. This despite the meeting having been arranged for ‘deliberations on the two remitted Bills’ – and members’ memories ‘refreshed’ by yet another presentation from Van der Merwe. It is nevertheless not clear if her document, the list of questions and the agenda for yesterday’s meeting were circulated in time to allow members to prepare adequately.

2 December 2020

Copyright, Performers’ Protection Bills on hold

The remitted 2017 Copyright Amendment Bill’s ‘B’ version and 2016 Performers’ Protection Amendment Bill’s ‘B’ version will remain in limbo until next year. This is according to a document presented to the Programming Committee at its meeting on Friday, notes Legalbrief's Pam Saxby. Although the matter was not discussed, the document refers to a decision made by members of the Trade & Industry Committee when they met on 24 November. However, the Bills were not mentioned during that meeting or one that followed the next day, both of which focused on the process of appointing a National Lottery Commission chair. This is confirmed by Parliamentary Monitoring Group sound recordings of proceedings on each occasion.

The process of arriving at recommendations to the House on a way forward for the remitted Bills was last considered by the committee when it met on 4 September – albiet briefly. This is noting that the item was removed from the meeting’s agenda at the request of ANC committee whip Judy Hermans. Apparently, her colleagues in a study group formed by the ruling party’s caucus had yet to arrive at a position on parliamentary legal adviser Charmaine van der Merwe’s proposals for addressing President Cyril Ramaphosa’s reservations about the Bills’ constitutionality. In the absence of any official pronouncements from the committee, it can only be assumed that the remitted Bills have been on its back burner ever since.

8 October 2020

Copyright Bill process in limbo

National Assembly Trade & Industry Committee ‘deliberations’ on 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 have been postponed three times this week, notes Legalbrief's Pam Saxby. Originally scheduled for Tuesday, held over for yesterday’s meeting and then moved to today (according to successive committee meetings lists), the agenda item concerned changed to the ‘formal consideration’ of a ‘draft report on the remitted Bills’ – raising expectations of a decision on the committee’s recommendations to the House. This is noting that, during a meeting on 1 September, ANC representatives requested more time to arrive at a position on the way forward, as Legalbrief Today reported at the time.

If the committee eventually agrees to recommend to the House that the Copyright Amendment Bill be retagged as a section 76 piece of legislation affecting the provinces, the NCOP and provincial legislatures will be required to conduct public hearings on the complex proposed new statute in its entirety. In that event, stakeholders and other members of the public will not be confined to clauses directly affected by the President’s reservations about the Bill’s constitutionality. It is in that context that the outcome of a long-running dispute between Google and Oracle now being heard by the US Supreme Court (Scotus) may be of interest. This is noting that Clause 2 of the Bill seeks to introduce a sub-section in the Act providing for the ‘scope of copyright protection’ and expressly excluding computer software ‘interface specifications’. Google is appealing a judgment handed down in March 2018 by the US Court of Appeals for the Federal Circuit, in which the organisation was found to have ‘violated Oracle’s copyright and that its actions … could not be regarded as fair use’.

Legalbrief Today has regularly featured articles expressing a range of views on the Bill’s fair use and other controversial provisions – most recently on Wednesday, when the Daily Maverick’s Zukiswa Pikoli reported on a letter sent to the committee by ‘a group of civil society organisations and activists’. According to Pikoli, it focuses on concerns that the process of addressing issues raised by the President could be perceived to be ‘prioritis(ing) business interests over human rights obligations’. Its signatories believe that any ‘further delay’ in implementing the necessary ‘reforms’ will ‘betray’ a ‘14-year process’ that appears to have begun long before the copyright review commission was appointed in 2010 (although the letter makes no reference to this). The Bill’s provisions are underpinned – among other things – by recommendations in the commission’s 2011 report. It remains to be seen if the letter influences the contents of the committee report given that members have already agreed to retag the Bill.