Tag Archive | Ebrahim Patel

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

B-BBEE included with Covid relief regs

Covid relief & BEE don’t mix, say MPs

When the Department of Trade, Industry and Competition (DTIC) were presenting their 2020/21 performance plan to Parliament and after stating that all Covid19 distress funding would be allocated using B-BBEE guidelines, DTIC’s director general, Lionel October, found himself in a spot during questions.

He was asked directly by DA MP, Timothy Brauteseth, what DTIC would say to employees if children went hungry after application by a small time employer failed on such grounds.

Rules are rules

Although the question could be described as a little unfair, DG October replied tactfully that his department was staffed by civil servants “whose job it was to faithfully implement B-BBEE legislation”.

He said all DTIC incentive programmes were conditionally subject to a B-BBEE level and the private sector was usually most co-operative. DTIC was committed to all transformation processes, he said, but he was sure that the scenario in question would not happen.

In other words, the DG had dived for cover.  Later during further questioning on the subject he remarked that DTIC did not “anticipate exclusions of this kind coming up with any programmes associated with the current crisis”.

Well done

The DA complimented DG October during the same meeting on his personal responses over the past months generally to opposition queries and  on his dedication to trade issues during a difficult period.  DA’s Dave McPherson said the DG was one of the few who responded timeously and in detail to their concerns, whereas a good number DG’s failed, he said, to even acknowledge a parliamentary query.

In general, on future plans, DG October told parliamentarians that any framework for the coming years would be subject to a number of downwards adjustments,  especially on the issue of budgeted projects.

This, October said, was in the light of the forthcoming July cuts in budget appropriations as a response to the Covid-19 pandemic in terms of the R 500bn economic recovery package. (Parliament are to debate the DTIC adjustments in the next week or so)

Summation

DG October outlined the department’s total budget of R 11 bn for the 2020/21 financial year, of which 61% or R 6.8 bn is expected to be transferred to public corporations and private enterprises for incentives programmes. Of the total budget, 19% or R 2.1 bn will be transferred to the departmental entities in terms of agreed projects and targets.  DTI operational expenditure, which comprises mainly of compensation of employees, and goods and services, is 18% or R2 bn of the total budget.

DTIC is working on the basis of global economy shrinking by 3% for 2020 as a result of Covid-19.  This is working on IMF figures which figure that South Africa’s economy will probably  shrink by approx. 6%, he said.    To improve growth prospects domestic interventions included the R 500 bn COVID-19 package. There were also “Master Plans” for the automotive sector, poultry industry and retail – clothing, textiles, leather and footwear industries and others were being developed.

October concluded by describing ten key strategic programmes but again stating that all budgets and targets would have to be reviewed in July based on the progression of the pandemic. Accordingly, at this stage, it is quite clear that government planning and associated major capital spending is “on hold” for the moment

The good, bad and ugly

When asked what measures DTIC was taking to reduce the cost of doing business to create an enabling investment environment, DG October answered by quoting instances such as “how much easier it was to register a company and how better to apply for related benefits such as UIF.”   He promised DTIC would make it easier to register properties and process building permits.

DTIC, he said, was also in discussion with Treasury for additional funding for a tax allowance as “an economic responsive package to assist companies in distress as well as to stimulate investment while retaining existing jobs”.

when asked about Section 121 tax allowance schemes where a budget of R 75m had been provided for support of greenfield or brownfield local investment schemes, this had come to an end October concluded.  This was, he said, because almost all the budget had been used up and the fate of what was left would be the subject of “the diversion of funds and projects  which are “gagged by the advent of Covid 19”., he said

Fielding the questions

Dr Corné Mulder re-expressed the hope that B-BBEE would not be applied in the midst of a pandemic with any future schemes (his main theme for the whole meeting).

Dave McPherson asked about DTI pressure upon the National Credit Regulator (NCR) to invoke Section 11 of the in order to allow credit needed under Covid-19 situations.   October ducked this one and said that the NCR’s office and DTIC were currently studying the matter.

On questions on the need to build value-added exports, he quoted a platinum fuel cell production unit which had recently begun operations in Dube Trade Port SEZ.

Looking outwards

Mathew Cuthbert, (DA’s shadow minister of trade), asked Lionel October why South Africa had failed to sign WTO Global Value Chain agreements (GVCs) in the past.   (GVCs assist in reducing trade barriers, lower costs of transportation, can create additional jobs and assist in economic growth in developing countries – for example motor industry assembly plants). 

October looked somewhat perplexed.   In an inconclusive answer, he said he would check with the WTO Ambassador and reply to Cuthbert later in writing.

 

Cuthbert responded to remark that October had said earlier that support was continuing to be given to  the motor assembly industry and it was in “fair condition”.     He said that his feedback told him that this was not the case, particularly in the Eastern Cape where “some motor plants had gone about 98% inactive due to Covid 19 and that the situation was dire.”

He said that DTIC should note this fact and that the department must give the situation its urgent attention. He said Minister Ebrahim Patel must hear that “DTIC had got this completely wrong”.

The meeting ended abruptly due to timeout, but not before EFF’s Yoliswa Yako said that in her opinion Minister Ebrahim Patel was holding back on information and had not participated with any value to the meeting.

 

 

Posted in Agriculture, BEE, Finance, economic, Labour, Trade & Industry0 Comments

New Competition Bill invades business principles

 

Competition kill is not transformation, say critics

Due to an idealogical theme imposed by the Minister of Economic Development, Ebrahim Patel, on the new Competition Amendment Bill, recently published for comment, South Africa can expect a highly charged series of hearings following the Bill’s recent tabling in Parliament. Competition Bill

 

Posted in BEE, Finance, economic, Labour, LinkedIn, Trade & Industry0 Comments

Competition Commission zeroes in on retailing

Minister on new Competition Commission focus…

large retailerThe Competition Commission is to announce the terms of the market enquiry into “parts” of the retail industry within the next few weeks, said Minister of Economic Development, Ebrahim Patel, in his budget vote speech to Parliament.

What “parts” exactly were not clear from his speech, Minister Patel only saying itebrahim patel would involve large supermarket chains, grocery stores and small retail outlets like spaza shops.

At present the Competition Commission has launched a market enquiry into both the private medical industry and liquefied natural gas distribution process and was now in discussion with the construction industry on a similar restitution package as “redress for their collusion and price-fixing.”

Property ownership focus

Unusually, Minister Patel’s speech was short and to the point but he did say on the Competition Commission would be looking into the retailing industry and property ownership area.

He said the inquiry would involve “The structure of the industry including retail outlets in townships, the tenancy arrangements in shopping malls that seem to squeeze smaller players out and the impact of the growth of large retail chains on competition, jobs and small business development.”

Announcement appears in vacuum

large retailer 2Nothing was said on Minister Patel’s plans for the Competition Commission in the budget vote speech from Minister of Small Business, Lindiwe Zulu, nor in Minister of Trade and Industry, Rob Davies’ speech, DTI having been split the Competition Commission but still interested in entrepreneurship and job creation.

Deputy Minister of Economic Development, Madala Masuku, said nothing at all on the subject the Competition Commission in her speech but did advise Parliament that the department had been on a series of provincial business studies over six months on how to create more jobs and build small businesses and better service to the provinces. That possibly is the basis of what is now happening as a result of what they saw.

Small business seems stifled

The structure of small business and the relationship to retail chain outlets, competitive pricing and rentals must have been part of such observations.spazza

Also minister, Lindiwe Sisulu, before being transferred to the post of minister of human settlements had told the select committee on economic development that “SMMEs contributed 57% of South Africa’s GDP and accounted for 56% of employment.  The National Development Plan (NDP) envisaged that 90% of jobs created would be coming from small and medium enterprises.”

Partnerships in retailing and distribution

She told parliamentarians that economies around the world had shown that jobs were not created by large corporations, but by SMMEs.    However, large corporations and big businesses should seek partnerships in South Africa so that they could assist the department in building small and medium enterprises and thus contribute to economic development, she said.

Manufacturing distribution was also an area discussed at length  in government small business workshopsdistribution recently attended by parliamentarians where it was seen that the large retailers have also control of country wide market distribution at retail level, only dealing with areas providing suitable economic return and more sophisticated road and rail infrastructure.

This market inquiry by Minister Patel therefore has an investigative ring to it rather than any direct attack on certain sectors in the retail industry.

Other articles in this category or as background
//parlyreportsa.co.za/energy/competition-commission-turns-lp-gas-market/
//parlyreportsa.co.za/uncategorized/competition-commission-promises-health-care-inquiry/

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