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Copyright Bill sits in President’s inbox

…..Copyright Bill at tipping point – yes or no?

30 May 2020 –  Major issues remain at stake with the Copyright Amendment Bill sitting with the Presidency for signature for some thirteen months. The Bill will overhaul the copyright and trademark situation in South Africa, not attended to in the statute book by amending legislation since 1976.

However, the substance of the Bill represents a lot more than tidying up an old piece of legislation but rather it changes the tenets and the whole basis of copyright in South Africa.  It rewrites whole sections of the Act to meet the circumstances of a digital world in music publishing, replay, transfer, copying, music rights and author’s rights, royalties and how they are collected.

It is, of course, all about money, otherwise there would not be so much fuss about the deadlock.

The big stick

Major industries are involved, particularly in the USA as far as the publishing, film and music world are concerned.    The Bill tweaks rules on many copyright and trade mark issues that affect a world governed by international copyright agreements.   The US has always been dominant on trade issue matters on this issue but in this case South Africa’s own vested interests into US markets with SA exports comes into play.

Precedent on copyright matters is a far bigger issue than the authors of the Bill, those who fought for local production and authorship rights over three years, ever imagined.   Looking back on the hearings and submissions made by over forty experts and stakeholder business entities to Parliament in those months, the message comes clearly through as a simple “I told you so”.

Nevertheless, the governing party has so far stood against conforming with US pressure, agreeing with SA lobby groups and calling upon the President to sign in the knowledge that SA is moving outside international trade norms and agreements, particularly the Berne Convention.

Mother goose

Oddly enough, in fighting with South Africa, the US is contrary to World Trade Organization’s (WTO) rules on this issue by not giving special dispensation developing countries, but the US has a record of disagreeing with the WTO on this matter, remaining equally fixed in its views. The “Mexican standoff” is now a major issue in US/SA relationships. When it comes to patents, copyright and protection of unlawful copying of trademarked products, the USA becomes a determined negotiator since trade and marketing innovation and the tenet of copyright protection on a global scale is what US commerce is basically all about.

The new law will involve moving to fair use conditions and clauses similar to US law, but there is great dissension even in the USA on fair use vs fair dealing approaches to copyright to the point of massive law suits involving Google and other internet platforms allowing open access to work that may be subject to copyright.

Blind alleys

SA in the past has followed the more rigid “fair dealing” principles adopted by more established copyright environments such as the UK.    The process of capturing and “re-communicating”  images and text raise multiple copyright issues particularly on the matter of whether providing or using a hyperlink to the original material is tantamount to an infringement of copyright.

committees

parliamentary committees

The hybrid SA version provides for rights to use excerpts on protected works for educational use  – a need for which exists in most developing countries. This inclusion has worried the publishing industry whereby whole works are pirated, duplicated and supplied. The new Bill also proposes extensions of protection for local creators which includes rights to royalties, limitations on unfair contracts, and reversion of all copyright assignments to creators after 25 years.

Turf wars

The Office of the US Trade Representative announced at the end of 2019 a review of South Africa’s eligibility for Generalised System of Preferences (GSP) benefits as a result of SA non-adherence.   The outcome of this still awaited but most local commerce and industry would prefer that SA dodges the heavy artillery and returns the Bill to Parliament for a version less confrontational.

The US administration took to its hardball approach on this specific Bill after it was petitioned by the International Intellectual Property Alliance, a private sector coalition representing large US entertainment companies. This is a powerful lobby in terms of influence with the US administration. Pitted against this, all local performer, artist and local film producers, educationalists and university academics feel differently and want the homegrown version passed by Parliament for signature to proceed into law.  Naturally it looks like a David and Goliath scenario, but the US administration has been through this hoop time and time again all over the world.

AGOA

The US GSP programmes meanwhile give extra tariff reductions to developing countries eliminating duties on 3,500 products when imported from one of 119 designated beneficiary countries and territories, which includes South Africa. The US normally provide a wording which satisfies both parties to proceed but not in the case of the proposed SA Copyright Amendment Bill.

At this stage, the SA Constitution says the President must either assent to and sign the Bill or refer it to the Constitutional Court for a decision on its constitutionality.   If the Constitutional Court decides the Bill is constitutional, the President must sign it. The general feeling is that the President would lose the battle.  The question is…… who blinks first.

The deadlock continues but for those who do not compose music, write songs, publish and print books and earn from publishing and music rights in SA but just want the economy and trade agreements not to be damaged, the wait is painful.  The choice for them is a no brainer.

Posted in Cabinet,Presidential, Home Page Slider, Justice, constitutional, Trade & Industry0 Comments

Parliament goes virtual for lockdown


….20 May 2020…

SA first with virtual e-debate

….At the same time as the venerable British Parliament was tackling what seemed to them a totally invasive idea of a virtual e-Parliament, South Africa was simultaneously tackling the same subject as COVID 19 arrived at the shores of Africa.  Immediately, the issue of the consideration of lockdown conditions arose in SA and the question of how Parliament could work with everybody boarded.

Whilst British parliamentarians dithered on the subject and due to the fact that the UK kept social distancing going for a much longer time before their lockdown came into force, South Africa’s virtual website portal went up in an incredibly short time and was first in the world by a few days.

Maak ‘n plan

In comparison, the British virtual system. which is also now also working, only allows for debate in the House of Commons whilst South Africa, in terms of its Constitution, follows proceedings in both the National Assembly and the NCOP and also at committee level as well, with the current joint meetings providing provincial coverage.

The design of the entrance website is pretty similar to the UK portal, the principle being the same but with a British budget, the UK presentation is a good deal slicker.  All the same, the Daily Telegraph complained after the UK launch that all that the voice links in the meetings sounded like Darth Vadar and it was confusing to know who was speaking.

Many players

The beginner’s look of the SA virtual meetings is understandable in the situation.   One can see in SA technicians are having a daily struggle with people using Skype and Zoom connections for the first time, some of whom have little knowledge of the difference between an app and a hard drive.

Most are trying, knowing it all has to happen and it would be best to learn quickly but a certain number of senior politicians still demand studio facilities and a camera.   We shall no doubt look back in years to come and laugh at these early attempts to live a virtual reality life.

48 hours allowed

In South Africa, where the decision to suspend the SA Parliament was a “precautionary measure” in the light of a forthcoming Cabinet decision on how to deal with the pandemic, Parliament’s presiding officers in the form of chief whips and political parties all agreed beforehand on the 17 March that the remaining two days of parliamentary business would be devoted to urgent legislation only.

As a result of this decision, Budget Papers in the form of the Division of Revenue Bill were hustled to the National Assembly for adoption in order that money could flow to the provinces and local government.   A Cabinet meeting followed and the Speaker of the House, who acts for the President in Parliament, was summonsed for a meeting soon after.

Hard facts

The role of Parliament is indispensable for the country to run.   The Constitution demands that Parliament scrutinise and oversee all Executive actions, processes Bills in the  form of legislation, to provide a forum for public consideration of issues and to facilitate public involvement in its legislative and other processes. Such is inviolate, whatever the conditions facing the country.

Realizing that the only way was virtual meetings to consider matters,  Speaker Thandi Modise issued a statement that Parliament would have to “intensify its technological capabilities for a transition to an “e-Parliament”.   She concluded that as a result, a decision had been taken that “Parliament will be able to resume taking advantage of virtual media technology”.

 Into action

The leave period, or recess, for MPs was duly cancelled and parliamentary staff were assigned permits to stay at work.  They used this time for urgent meetings -to assess how Parliament could best resume its proper function under lockdown regulations and deal with the lacuna (i.e. a situation where there is no applicable law to deal with the matter).

It was agreed by the Speaker that priority had to be given in Parliament to virtual meetings that required oversight on COVID-19 matters, bearing in mind the limited number of meetings that could be held at any one time.  It was also agreed that any virtual meetings would be primarily joint meetings based on the government cluster system, i.e. meetings comprising the various representatives from a number of differing committees affected by one subject.

 Order, order

Chief whips were then tasked to adapt parliamentary rules to meet the new conditions. All this had to be based on the procedures, precedents, practices and conventions, which have been developed over the years, known as parliamentary rules.  This was in respect of not only how NA and NCOP virtual plenary meetings were to be run but how debate was to be conducted committee.

Speaker Thandi Modise then confirmed to all political parties that in the planned virtual meetings, members of parliament would have the same powers, privileges and immunity as they have ordinarily in parliamentary proceedings.  Quorum requirements were to be exactly the same she said, and MPs would be entitled to cast their votes either electronically or by voice.

Public participation and access to virtual proceedings had to be made possible, said Modise, “in a manner that is consistent with a participatory and representative democracy, virtual meetings to be live-streamed wherever possible”.

Global comparisons

Despite time limitations Parliament was indeed able to try and benchmark against some other legislatures who were operating as legislatures whilst their countries were fighting against COVID-19. To the surprise of all, little was found.

The prime constitutional constraint in South Africa’s case was that any virtual meetings had to involve both the sittings of the National Assembly and the National Council of Provinces and these had to be seen to be happening if the public wished to observe proceedings, a factor necessary according to the Bill of Rights.   This was overcome by making most meetings “joint” committee meetings of parallel committees from both Houses.

One and only

In the UK, which has no constitution, a parliamentary virtual meeting concept had been designed and planning was six months into happening.  From a standing start, SA Parliament achieved their deadline in about a fortnight.  Australia and New Zealand are still only thinking of going about it and the USA is still fighting about lockdown itself.

Without fanfare, the parliamentary process under the extraordinary conditions began internally in the Cape Town precinct after a very short training period on 20th April, with access being made to the existing  public parliamentary website on the link www.parliament.gov.za/parliament-tv.

 Time will tell

The whole thing seems to work quite well but obviously glitches occur regularly whilst MPs struggle from time to time to find the mute button and some appear if they have just got out of bed.  Already, however, after an initial learning curve, things are changing and before long it will be the way things happen.

At each meeting, provision is made for the parliamentary secretary to log in those MPs present at a virtual meeting, name them, see them, accept apologies and at point count voting if required from those logged in through the  electronic response system.   Minutes are established later through the audio track recorded in the same manner as before. This is quite some procedure to witness in some of the hallowed chambers where the Speaker once wore a wig.

An MP’s presence in any virtual meeting is established through a secure link sent to their email address which also enables counting to be established for the purposes of establishing a quorum, taking decisions on issues or voting on a matter. Links are established on Facebook, Linked-in, Twitter and Instagram, the photography on Facebook on parliamentary issues being quite stunning.

 7 out of 10

In general, the new parliamentary virtual world established is considered by most quite for such a rush and the process will no doubt tide the country through this terrible period in its history.  This aside from any opinion on how well MPs handle their own inputs and deal with difficult question of switching between one another to pose and answer questions.  What you see is what you get.  The result is not always pretty but it is legal.

One advantage is that with so much happening with lights flashing and buttons to worry about, there is little time for any MP to have a quiet slumber.

Posted in Agriculture, cabinet, Communications, Defence, Energy, Fuel,oil,renewables, Home Page Slider, Justice, constitutional, Police, Public utilities, public works, Security,police,defence, Trade & Industry, Transport0 Comments

Latest Cybercrime Bill free of state apparatchik

New Cybercrime Bill   

……Every business must have a battle plan

In the light of the fact that the Cybercrimes Bill, now passed by Parliament, places obligations on financial institutions and service providers to report incidents to SAPS, it would seem imperative that preparedness by business for a cybercrime incident must include a well-planned response plan.

Read more...New Cybercrime Bill

Posted in Communications, Finance, economic, Home Page Slider, Justice, constitutional, Police, Security, Security,police,defence, Trade & Industry0 Comments


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