………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.
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Any changes to the anchor Copyright Act, untouched since 1976 and hopelessly outdated, are now necessary to adopt inter alia the rights to communicate literary and musical works to the public in a digital environment of internet platforms and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
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.
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.
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.”
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.
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.
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.
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.
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.
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.