ON THE COPYRIGHT AMENDMENT BILL, continued ...
Updated: May 23
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).
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.