Tag Archive | copyright amendment bill

Minister Patel and the Copyright Amendment Bill

………article dated 2 September 2020….. 

Start made on returned legislation……

Trade and Industry minister, Ebrahim Patel, has made it clear to Parliament that in his view the Copyright Bill, which was returned unsigned to Parliament by President Ramaphosa, can be re-written in such a way that all six requirements set by the presidency on the Bill’s constitutionality can be met.

He has asked Parliament to undertake this process with an eye on the six conditions but at the same time wants as few changes as possible.  From the first meeting, it appears that the Minister will very much be involved in the Bill’s re-drafting, particularly on clauses that affect the application of fair use exceptions  and also re-focusing on a possible re-write of the sections of the Bill to include retrospective royalty claims.

Stage one

Over the next few weeks therefore the trade and Industry committee will consider as a matter of urgency the specific issues raised by the presidency, all debate and alterations staying within the parameters of those specific issues.    Such conditions will also apply to the tandem Performers Protection Amendment Bill, which was returned by the President at the same time.

The timing of the finalisation of a complete Bill will very much depend therefore upon whether Parliament decides to include provincial hearings on a re-write, the president having complained that public participation in the Bill was insufficient.     Minister Patel, from his comments on the subject, would obviously like the Bill to go to for provincial hearings to round up more support for his contentious retrospective royalty clauses.  However, he knows how long this could take with South Africa needing  to resolve trade issues urgently, all depending on the final shape of the Bill.

Bill to stay

It clearly was understood, from the recent the first meeting, that Parliament will not be considering the re-draft of a completely fresh Bill as hoped for by the Copyright Coalition of SA.   This grouping represents, amongst other interests, a number of publishing companies lobbying against specific issues promoted in the draft.

Such have garnered support from US counterparts to influence the final form of the draft Bill, appealing to the Minister to allow for international trade requirements, as expressed in various treaties to which SA is aligned.

Any changes to the anchor Copyright Act, untouched since 1976 and hopelessly outdated, are now necessary to adopt inter alia the rights to communicate literary and musical works to the public in a digital environment of internet platforms and media devices which involve easy copying for private and commercial use and different educational needs.

Where we are

The Bill has been sitting with the President, unsigned, for thirteen months after its original completion by the Portfolio Committee on Trade and Industry, but now has finally been dusted down and returned to Parliament with the six caveats for consideration to be considered before it can proceed further.

Matters raised by the President in returning the Bill are:

  • Queries regarding the tagging, meaning whether or not sufficient parties were consulted
  • Acceptability of retrospective and arbitrary deprivations of property clauses
  • Delegation of discretionary legislative powers to the Minister
  • Public participation in the Fair Use clause provisions
  • Copyright exceptions and the validity of such internationally
  • Concern over international treaty implications

To stay

However in principle, the Minister does not appear to be overwhelmed by any international pressure to either withdraw the Bill or completely re-draft it.   Rather, he sees minimal technical changes being undertaken only to meet presidential requirements. He has made available to all MPs a DTI pack detailing chronological the progress of the Bill through Parliament, who was consulted and why and decisions made.  (available to subscribers)

As an overall impression of the first virtual meeting  on the subject, it would seem that the main thrust of the Bill is accepted in moving away from defined fair dealing principles to fair use generalisations. The issue now seems to be all about past redress on localised royalty rights.  The meeting was perfectly aware of the needs to meet international copyright agreements and the fact that this has escalated into a direct confrontation between US trade interests over what is perceived by the governing party as protection and development of a local industry and for aspirational educational needs.

Strong views

Minister Patel told MPs that there are “significant commercial interests in each corner of the debate on retrospective rights and how they are defined”.  On this he said, “There has been a heavy lobby with a different view, and this will probably remain the case since South Africa is an open society and alternative views are always countenanced.”   Much pressure had been exerted upon government by the publishing industry with regard to the Copyright Amendment Bill draft, he said.

He was therefore acknowledging the issues surrounding the question of “re use” of educational material re-use in schools and universities raised by the publishing industry.  He must be briefed on the divisive matter of internet platform use and supply of material by such entities as Google and Facebook in which area of “fair use” there is much litigation in the US on user privacy.

From the way he spoke, the Minister is aware of the dogged objections expressed by opposition MPs on the risks of offending international partners regarding retrospective royalty payments and violation of past undertakings.

 Important history

In general, and throughout his presentation, Minister Patel referred much to the opinions of the Parliamentary Legal Advisor (PLA)  who throughout past meetings have advised Parliament with regard to legal issues on the  development of the Bill. The portfolio committee on Trade and Industry has had two sub-committees advising them as well – one on constitutionality  and the other on copyright issues.

Three years ago, Parliament who took over the drafting of the Bill from the DTIC legal team, taking advice from the Copyright chair at Stellenbosch University. The extent to which they followed this advice is for the experts.

Minister Patel specifically highlighted the issues that Joanna Fubbs MP, as previous chair of the Committee, had emphasised throughout the development of the Bill under previous minister of trade, Rob Davies   He said, “Creators often sold their rights to ownership and future earnings and use of the work to a person or to a firm. In some cases, the creators did not have a sense of the value of their work and had sold it at prices well below the true market value.”

All about redress

He said, “This past exploitation of creators who, unknowingly, had assigned their rights in unfair contractual agreements, has to be dealt with. Parliament has resolved in meetings that such redress is necessary”, he said. “ This is now a fact agreed upon.”   This issue, he concluded, was the basis surrounding the controversial clauses 6a, 7a and 8a in the Bill, and what the dissension has been about.  “The committee has voted to take into account those parties who have been exploited in the past”, he said.

He acknowledged to MPs that the President’s position was such that retrospective provisions might be unconstitutional as it may create arbitrary deprivation of property under section 25 of the Constitution. This could be possibly referred to as “arbitrary” because the courts may find that such a ruling applied to all copyright holders domestically even if an injustice was not done, thus bestowing a windfall on authors who had in the meanwhile received fair copyright value, he said.

He continued, “Such could be called the indiscriminate results of the wording proposed. In other words, the result was not specific to one case but applies to all and consequently what had been proposed in the Bill did not provide regulatory certainty”, Minister Patel said.    “I recommend therefore that the Committee consider the retrospective clauses 6,7 and 8 and re-consider the wording, without losing the thrust of the provisions that the Committee required in the first place.”

Ministerial powers

He also said, “I have taken note that various legal opinions hold that the ministerial powers in the Bills are sufficiently qualified as to address concerns about impermissible delegation, but as they were an attempt to cure potential constitutional breaches on the formulation of retrospectivity, they would be redundant if those clauses are changed and therefore, I agree that these powers can be removed,” Patel said.

He concluded on this subject  that  alternative mechanisms to address the challenges of redress and to support those creators who are victims of past exploitation, may need to be considered.

Exceptions under Fair Use

A further issue which gave the President concern, Minister Patel said, were the powers given to a minister to both develop specific regulations on any defined retrospective cases and conduct an impact study on each case

In summation, Minister Patel seemed to be saying that to deal with specific cases at ministerial level was going to be difficult and that he as incumbent was more than prepared to surrender any such powers on the basis that, in his view, it was correct that there was a singular lacking public participation and involvement planned for in any such decisions that the minister might make.

Mind reading 

Consequently, Minister Patel said, “In an overall sense it is my view that at the heart of the President’s concern is the fact that it is not so much the content of the Bill per se that concerns him but rather a lacking in public comment and consultation generally in the parliamentary process, particularly as the Bill was progressed in its final stages on subjects such as this.”

On the conclusion of his coverage of the retrospective clauses and ministerial powers to define cases by regulatory means, Minister Patel said the Bill ought to be subject to further opportunities for the public to consult. He said he was aware that the Bill was rushed through to make the deadline of the closing of the Fifth Parliament.

Heated subject

On the subject of international agreements and treaties that were affected by copyright matters, Minister Patel put up a slide which referred to:

  • the World Intellectual Property Organisation (WIPO) treaty
  • the WIPO Performances and Phonograms treaty,
  • the Beijing Treaty on Audio-visual Performances
  • the Marrakesh VIP Treaty
  • the Berne Convention.

The Minister said the President’s main concern in returning the Copyright Bill was as to whether the Bill complied with these treaties.   He also said only two were in force, these being the two WIPO treaties and the others were in the process of being agreed to. It appeared that Minister Patel was aware of this although the PLA advocate seemed to be insisting they were not legally relevant for any discussion until signed.

Consultation

Minister Patel said that  DTIC, who had had sought legal opinion away from Parliament and the Parliamentary Legal Office who had given opinion to the Committee during debate, had both told Parliament that  the contents were in the Bill were in alignment with the Constitution when it came to the retrospective clauses and the record showed that Parliament proceeded on this basis.

However, there were no public consultations on this issue, he admitted.   PLA said later that as this was not ‘wording’ of the Bill and there was not a need for public consultation on this subject accordingly.   For a number of legal reasons however, which the Minister quoted at length, he said in summary, “It could be worthwhile for Parliament to re-consider the alignment of the Bills against treaties since the question of whether of arbitrary application might arise in terms of those treaties will arise.”

Both the same

He recommended that both the Copyright Amendment Bill and the Performers Protection Bill be treated in like manner giving MPs a number of further reasons their consideration which the Minister felt were important to if the Bill were to go back to the President resulting in a successful outcome.

The Minister stated that it was the view of the Department and Parliament’s Legal Advisors (PLA), the Committee might wish to be taken through the contents of the treaties compared to those areas of the Bills where the President had expressed constitutional concerns in order to give proper consideration. He gave his assurance of assistance in this regard.

Secret out

On the retrospective clauses contained in the Bills, Adv. Charmaine van der Merwe, Parliamentary legal advisor, confirmed that the previous Committee in the Fifth Parliament had in fact compromised on the issue of clauses 6,7 and 8 after having  been told of constitutional concerns, but had decided after forcing the issue by majority vote, to rather have such clauses contained in the Bill which went forward to the National Assembly and which could always be struck out should they be found unconstitutional.

This was against the wishes of the DA who voted against such a move but who were outvoted in a majority count.   PLA stated in their time slot that in their view the retrospective clauses could be deleted in their view. When pushed on the issue , they said in a likelihood they should be deleted but no final legal stance had been taken on the subject.

I told you so

DA’s  promptly advised all when the vote was taken that he had warned the Committee on approving the Bill with a “see how it goes” approach on such an important issue.  The debate at the time had become somewhat acrimonious. MacPherson warned that already the AGOA trade agreement had been drawn into the matter and indicated that such a price to pay was too high.

“Both Bills will achieve nothing if they contradicted international treaties and included arbitrary deprivation of rights”, he said. “As a result of this rash behaviour, the Bill has stalled, gone nowhere, and South Africa has found itself in a difficult trade situation.”  He added angrily that he had been accused of grandstanding at the time before the Bill stalled, warning that this would happen.  ANC MPs responded broadly on the basis that the DA was not interested in “people matters”, only money issues.

Conclusion

On the question of how the Bills were tagged, Adv v.der Merwe of PLA stated that in their view it was Constitutionally correct that the Bills could be tagged section 75 and debated therefore only in the National Assembly but if Parliament so wished they could be re-tagged section 76 and be debated in all nine provinces, meeting the President’s call for more public comment.

This was a decision for the Committee, she said, but such a process will cause some considerable delay.

Over to you

She said further public participation with public comment on the “fair uses” clauses was very much up to Parliament and the Committee chairperson.   On the arbitrary deprivation of property issue, she explained that copyright had always been subject to exceptions because without such they could limit the Bill of Rights.

Having seen clauses 6a,7a, and 8a as a problem, i.e. the retrospective clauses, it was the PLA’s view that the Bill otherwise and in general terms allowing for exceptions for Fair Use only, was aligned with the 3-step process used as a test on Fair Use exceptions and as was the Australian Fair Use case, such a law would no doubt be found to be acceptable.

She said as an aside that she had struggled to understand the wording of the retrospective clauses herself and because of this she was unable relate as to whether they were an influence on the  international treaties unless the wording was considerably refined.

Fair Use stays, no doubt

On this note, Minister Patel concluded, as the meeting closed, that on the 3-step process, it was “incredibly important to take note of the unique circumstances in South Africa”.   He said the Bill’s exception for educational purposes could be found in many countries in South America.

Copyright Bill goes back to Parliament – ParlyReportSA

Posted in Education, Finance, economic, Justice, constitutional, Trade & Industry0 Comments

Copyright Bill goes back to Parliament

….posted on July 13 2020….

Hung by its own petard: Copyright Bill 

Threatened not so much by the US administration, as Cabinet advisers would like us to believe, but more probably actioned more as per the presidency statement because of incompatibility with international agreements,  President Cyril Ramaphosa has made his long outstanding move with regard to the Copyright Amendment Bill, was sitting with him for over a year for assent.

Correctly, we believe, he has returned the Bill to Parliament in the light of the Bill’s constitutional and legal deficiencies, particularly in respect of non-compliance with the international “3-step test” of the Berne Convention and WTO Agreement on Trade Related Aspects of Intellectual Property Rights

Long time coming

This delays further the implementation South Africa’s much-needed revised copyright legislation which has been stuck in the same groove with regard to royalties since before the digital age.  But then the Presidency also sat on their hands for 13 months before deciding on the matter, a decision which for most in business and industry should have been a complete no brainer.

Sad it will be for academics and educationalists who will remain with standard limitations on published works and sad also we understand for local performers and artists but, in the case of the latter grouping, this we admit is outside of our scope and brief.

Most of the delays so far have emanated from an overwhelming and misguided socialist belief that the Bill, as it stood according to the tenets of the governing party and particularly the beliefs of the previous Trade and Industry Minister, Rob Davies, that the Bill should introduce an emphasis on the “protection” of local artists and performers, a matter which seemed well worth to them a disregard for international copyright norms.

As the Bill is to be returned to Parliament, the delays will obviously be compounded.

Where we were

The Copyright Amendment Bill and the Performer’s Protection Bill as tandem Bills have both considered at the same time by Parliament’s Trade and Industry Portfolio Committee, both dealing with the same broad subject but both by their names dealing with separate issues.  By far the major issue was the matter of international copyright agreements and hence it was the Copyright Amendment Bill that came into the public eye because of international trading issues.

The view was originally espoused by Joanna Fubbs, stalwart and ANC chairperson for many years of the Portfolio Trade Committee on Trade and Industry that local performers and educational bodies were injured by the extensive international controls on copyright matters.  She personally took on the job of drafting the Bill with an emphasis on this subject, calling for help with various committees of experts but at the same time, as was called for, drafting a Bill which contained the tenets of a new approach to copyright matters.

Disadvantaged

She was undoubtedly driven by her beliefs that that the SA music and publishing industry was largely ignored, and she referred regularly to “well known SA artists and performers who had died penniless”. The position was even reached a point where a submission on the Bill was made in song by one grouping to MPs, an extraordinary moment,

Although it was generally acknowledged that local bodies in South Africa in the past were not famous for adherence to internationally accepted copyright norms ,particularly following sanctions by the Free World in years previous, it was agreed that a tightening up of this process had to happen and that copyright collection agencies, although not much liked by small business, were a part of the generally accepted process of royalty governance.

It was agreed by both government and business that something had to be done urgently about the fact that the existing Copyright Act had not been updated since 1976

Started by DTIC

The first draft on the subject from the Department of Trade, Industry and Competition (DTIC) was rejected outright by eminent legal opinion, including that of the well-known Stellenbosch University, Anton Mostert School of Copyright Law.

This original draft, in the opinion of many legal experts, introduced “crude wording on the de-colonialisation’ of issues on royalties”, views which were only slightly watered down in subsequent years of endless and boring re-written versions whilst the Bill progressed under the two sub-committees formed by Joanna Fubbs.

Probably to stay in new Bill

The process resulted in a locally invented “hybrid” compromise wording regarding royalty usage, drawn up from the international norms of ‘fair use’ and ‘fair dealing’ principles of copyright application. The parliamentary authors felt they had achieved a result that would result in better protection of local author’s and performer’s copyright and a fair slice of royalties.

The point was, however, that the World Intellectual Property Organisation already provided latitudes with regard to the publishing industry in this regard but Fubbs persisted with her draft, fired by belief that South African educators were being denied educational opportunities by an over-zealous and, in her opinion, a somewhat pernicious publishing industry.

Rumpus followed

Book publishers then complained to the US Intellectual Property Association, which escalated by circumstance into a threat to South Africa in respect of  GPS benefits under AGOA.  Such produced a major moment of unhappiness in Trump/SA relationships.  One sensed that for some thirteen months whilst the Bill sat for assent, President Ramaphosa did not know which way to jump, although perhaps Covid 19 pre-occupation must have played a part in the extraordinary delays.

With President Ramaphosa now returning the Bill to Parliament, it is important to understand why the Bill is returned and what this implies. The process now could be lengthy and somewhat torturous.

Provincial and local input

The Cabinet statement merely states, aside for concern for visually impaired persons, that both the Copyright Amendment Bill and the Performers Protection Bill had been incorrectly tagged as Section 75 Bills in terms of the constitutionally prescribed process for parliamentary legislation. However, the President is of the view that the Bills concerned are in fact Section 76 Bills, given that they affect cultural matters.  To business, this remains a blind alley.

Section 75 Bills, which categorized the previous Bill, require just the mere acknowledgement of the National Councils of Provinces, but Bills tagged as Section 76 require a mandate from all nine provinces, and in some case cases provincial public hearings in each of the nine.  By returning the Bill on the basis of not being tagged correctly, this possibly means that as well as the Copyright Amendment Bill being altered and re-worded, the result will have to be considered by all provincial legislatures as well.

Rough guess

We expect that there will be a continued attempt to champion legislatively  “local user rights” in a compromised form, something that is mostly foreign to all international copyright statutes and agreements. At the same time, we do not expect any Copyright Amendment Bill to be passed any time in 2020 and if by July 2020, this will be going some.

Nevertheless, what we can expect is a Bill more along lines that the World Copyright Organisation would expect, the book publishing industry will want, and the US music and film publishing is used to seeing on the world stage. It is assumed that Minister Ebrahim Patel will gazette a new draft for public consideration, DTIC having learnt much in the four years of process.

 

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Parliamentary Overview 12 June 2019….

 

Changing the guard…  

Plenty of note for business has happened legislatively during the parliamentary recess but perhaps none so important as the re-structuring of Cabinet. As a result  there will be a change in the appropriate portfolio committees to reflect any changes and a consequent shift in portfolio responsibility for various Bills held over from the previous Parliament.    In the areas of energy, trade and industry and communications this will be particularly interesting of who gets to be the chairperson in the light of differences emerging within ANC structures.

Parliament will choose its portfolio committee chairpersons for the National Assembly and select committee chairpersons for the National Council of Provinces on 27th June, two days after the State of Nation Address ANC party chairpersons.  These appointments reflect how a government governs on policy and legislation. Through the chairpersons.

Read more..Parliamentary overview 12 June 2019

Posted in Agriculture, cabinet, Cabinet,Presidential, Energy, Fuel,oil,renewables, Health, Justice, constitutional, Land,Agriculture, Trade & Industry, Transport0 Comments

Draft Copyright Amendment Bill raises queries

Copyright Bill proposes revenues to state…

copyright graphicsent to clients 28 Oct….  Anomalies abound in the draft Copyright Amendment Bill, recently published for comment and now awaiting tabling in Parliament hopefully with a number of changes, say experts in the intellectual property industry.

The Bill primarily affects music, artistic and literary copyrights but the whole issue of patents, copyright and intellectual property rights are so intertwined that any changes will undoubtedly send up red flags up in various areas.

Government says in this instance it is trying to modernise the existing Copyright Act but as with any changes to established procedures that have existed for years, there are pros and cons that come with change it seems.

50 years after death

The draft Bill deals primarily with copyright of artistic, musical and literary work and most assume earphonesthat works of great composers such Brahms, Beethoven and Schubert are free of copyright, those geniuses having long since passed away. In fact under the existing Act, the author, composer or artist has copyright for life and then fifty years

The draft states both clearly and unambiguously that the ownership of all copyright held by individuals will automatically transfer to the state upon their death.

Until death do us part….

There is not the slightest indication of what body or entity is involved, other than the fact that the Bill is to be tabled by the Minister of Trade and Industry, meaning that DTI, or an entity controlled by it, would receive such, presumably the individual’s Estate being responsible for notifying DTI that they are heirs. The draft also states that government may never re-sell or pass on such copyrights.

The question to any casual observer is what happens to this money, at present collect by such bodies in doubtful manner by such bodies as SAMRO and passed to DTI? It is revenue and does it go to National Treasury, perhaps a fund for aged musicians, authors and artists even child education in the arts? On this the Bill is silent, no policy having been ever stated by any cabinet minister on such matters.

Another tribunal

In the absence of any new guides as promised on intellectual property in general, such having been promised by DTI in the form of a National IP Policy many months ago, more concerning is the establishment of an Intellectual Property Tribunal which is a case of “overkill” in dealing with this limited area of copyright and royalties.

Such a body may adjudicate on “on any application and on any legislation brought before it”, the draft supermarketstates.

On the whole, we have to assume that the majority of the draft Bill applies to individuals only, with the exception of the recording industry and literary reproduction industry, there also being certain clauses regarding End User Licence Agreements affecting software sales.

Criminalisation

Of concern though to many is the growing tendency to introduce criminalisation into legislation such as areas of BEE with fines normally reserved for more serious and harmful criminal police offences. In this case DTI have once again mentioned maximum jail and penalties of totally disproportionate periods and amounts.

To many, this Bill appears to have a lot more written in between the lines and prompts again many questions as to the direction DTI is taking with regard to international agreements, in this case the Agreement on Trade-related Aspects of Intellectual Property Rights.

It will be interesting to see what is finally tabled in Parliament for debate and what emerges from parliamentary public hearings

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