…..article dated 4 June 2021…..
Parliament rejects controversial clauses
After a tense debate, the parliamentary trade and industry portfolio committee finally voted against further passage of the Copyright Amendment Bill as currently drafted and to return the Bill to Minister Ebrahim Patel for re-drafting. There appears little doubt that an attempt to force through legislation which in part is considered unwise and which also grants powers to the Minister of Trade which are considered unfair and represent excessive interference, has been stopped in its tracks. Despite the Bill have been approved by majority vote in the National Assembly, a number of clauses will now be now rejected permanently.
During late 2020 , the President returned the Bill back to Parliament unsigned, the presidency being of the opinion that any such legislation should have been considered by the National Council of Provinces in its drafting. This was on the basis that part of the subject matter involved “cultural affairs”, a localized not a national matter. This means the President was not satisfied by the “tagging” of the Bill.
Such a move, in fact, might give the governing party sufficient time and space to re-think its policy on the economic impact of the Bill and the effect upon the balance of trade.
The difficult first virtual debate, however, not only had to focus on the matter of “tagging” but another five clauses of the Bill that were specifically rejected by President Ramaphosa on the basis that they needed further reconsideration in terms of their application at law. The total of six matters referred were:
- The issue of whether national cultural legislation was an NCOP matter
- the retrospective ‘compensation’ sections 6A(7), 7A (7) and 8A(5)
- copyright exceptions allowed under the Bill
- delegation of legislative power to the Minister of Trade, clauses 5, 7 and 9
- whether the Bills comply with International Treaty implications
- lack of public participation on the “fair use’ concept contained in the Bill
Throughout the recent debate, Adv Charmaine van der Merwe, chief legal advisor of the Office of Constitutional Legal Services (OCLS) was at pains to remind members that the Committee had to restrict its deliberations in terms of parliamentary rules to these issues only, the President being satisfied enough with the rest of the Bill in order to gain his signature into law.
This clearly frustrated members of the governing party as the debate was tied down as result to matters on which ANC policy was clearly divided. One section, mainly for reasons of heritage and societal reasons , supports retrospective compensation and the idea proposed to provide the Minister’s powers to define exceptions to copyright rules for “fair use.
The other faction agreed with the business lobby requesting that the Bill be aligned with international treaties and practice and that no ministerial powers to intervene on royalties or payments be allowed onto the playing field.
Adv van der Merwe dealt specifically with the President’s first reservation on “tagging”, stating that both the Copyright Amendment Bill and the tandem Performers’ Protection Amendment Bill dealt with intellectual property. This was a national responsibility, she said, and not a provincial responsibility and therefore section 75 of the Constitution applied.
She agreed with a number of the submissions that the Bills had a “knock-on effect” as far as trade both national and provincial was concerned but she was insistent that legislation is not tagged according to its economic influence or other vague concepts, she said, but by legislative considerations. Adv van der Merwe stated that the Bills were correctly ‘tagged’ as Section 75 for this reason as well. However, she said, if the Committee was unhappy with the parliamentary OCLS advice, it could change the Bills to section 76 Bills. This was up to the Committee, she said.
On these subjects the committee acknowledged the advice of Adv van der Merwe and agreed that the Bill should be tagged as 76, the result of which being that Bill now goes through the NCOP as provincial legislation and which process will take time.
The copyright war
On “fair use” vs “fair dealing”, Adv van der Merwe said that earlier that the various committees formed dealt with these subjects in detail and at length. Over the months they had agreed to move towards fair use and away from fair dealing but had developed an original or “hybrid “ model of wording for “fair use” with the help of experts.
They had decided was this was a satisfactory way to create balance between commercial players and the creative artists. On this subject, as the Bill was created these specific clauses in various forms of development had been submitted for public comment on four occasions.
The committee was remined that it was not just a matter of “fair use” vs “fair dealing” but a completely different slant on “fair use” and in any case this discussion was not up for comment by the Committee. Members, she said, could only consider whether more public participation was necessary, the issue queried by the presidency and the conversation they were having was really out of order.
On international agreements, Adv van der Merwe said the clauses in a treaty could not over-ride the Constitution, which remained the supreme law in the country. It was the OCLS view that South Africa had only expressed interest in the relevant treaties affecting copyright and government and had not ratified its inclusion by signature.
It was therefore not bound by such treaties, but all awaited South Africa’s next move on whether to ratify them. She said that these were the facts and inferred that everything else was “music”. Decisions had to be made, she said and if the Committee wished to make changes to accommodate such treaties, they easily could. Van der Merwe clearly was not going to advise the Committee on any suggested courses of action to deal with the presidential request in this regard.
On the matter of the retrospective clauses allowing for “back payments” of royalties to past musicians, authors, artists, etc, from the apartheid era, Adv van der Merwe said that such matters as retrospective law had to be certain and had to be legislated for in exact wording. She said that what was proposed in terms of the Copyright Amendment Bill was extremely unclear and was not acceptable.
The issue of retrospective action in terms of land, property, rights and compensation value at law is unchartered territory at the moment, she said, and what had been proposed tested the limits of clarity.
Justify and quantify
She reminded MPs that in this case the Minister and DTIC have to supply a background of exactly who needs to be paid, what for, how much and for what all in legal reasoning and until that assessment had been done, there was insufficient certainty to legislate any draft retrospectivity clauses, let alone for them to be acceptable at law. She warned MPs not to enter this area.
Following the extensive debate which followed and which, in broad principle, followed much of the OCLS thinking, Dean MacPherson (DA) issued a statement which read “We are now essentially back to the drawing board and we shall see the Bill being re-tagged as a section 76 Bill and further public participation on the ‘fair use’ clause.
The Committee has decided we shall be scrapping retrospective compensation and arbitrary deprivation and deleting executive powers farmed out to the Minister to act without Parliamentary authority.”
Over to DTIC
In conclusion and in parliamentary terms, the Bill is now ‘remitted’, meaning in this case returned to Minister for re-wording by DTIC.