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FAIR USE OP-ED

Confused about the complexities of the Copyright Amendment Bill? So, it seems, are many parliamentarians

Confused about the complexities of the Copyright Amendment Bill? So, it seems, are many parliamentarians

Will this, the final leg of the Copyright Amendment Bill and Performers’ Protection Amendment Bill process, address all the thorny issues? Perhaps. But only if the people who represent us in the legislatures do their homework and really get to grips with each challenging clause of each complex bill.

Occasionally, when processing an especially complex bill, the committee responsible holds a training workshop for its members to familiarise them with issues and concepts they’re likely to encounter. Which is what happened in 2017 with the controversial Copyright Amendment Bill, when the National Assembly’s Trade and Industry Committee began its work.

Last year, when potentially unconstitutional clauses in the remitted bill were being tweaked to address the President’s concerns, the committee held another workshop – presumably focusing on those clauses only. Both workshops were closed to the media and the public. They weren’t advertised, didn’t feature on Parliament’s daily meetings schedule and as far as can be ascertained, no reports were produced on their proceedings.

So, being able to observe a day-long parliamentary training workshop on copyright law on 18 October 2022 was a real treat. Arranged for members of the NCOP committee now dealing with the revised, remitted bill, the workshop featured in the parliamentary committee meetings schedule at the time and was even live-streamed.

And a week later, a workshop on legislation already in place to protect the interests of South African musicians, actors and other performers was also advertised and live-streamed. Held with the revised, remitted Performers’ Protection Amendment Bill in mind, its purpose was to familiarise members of the NCOP committee and provincial legislatures with issues underpinning amendments being proposed with the intention of aligning each bill with the other.

Both workshops also featured on a list of Zoom meetings circulated to the media, although nobody except a Parliamentary Communications Services writer bothered to report on them. Which is a pity because they were real eye-openers.

Had the mainstream media sat up and taken notice, the information shared would have done wonders for journalists struggling (like most parliamentarians) to understand the bills. And there’s really no excuse for them not to understand all the technicalities now that virtual and hybrid parliamentary committee meetings are the order of the day, with clips of live-streamed meetings on tap for background reading.

So, for those of us concerned about access to committee meetings and quality reporting on their proceedings, the Covid pandemic and January’s parliamentary precinct fire did bring some positive change – albeit with the wisdom of hindsight.

The workshops were held in anticipation of the next round of public hearings on each bill in its totality. This is bearing in mind that when the bills were remitted, the National Assembly’s Trade and Industry Committee was confined to considering only clauses affected by the President’s concerns – which must themselves be limited to issues with implications for a bill’s constitutionality.

As a result, the clauses reopened in December 2021 for comment from stakeholders and other interested parties were those to which the President expressly referred in his remittal letter. Some had implications for other clauses, which were dealt with on that basis.

In the case of both the Copyright Bill and the Performers’ Protection Amendment Bill, the President also questioned a decision made by Parliament’s tagging mechanism when they were originally tabled, classifying each bill as Constitution section 75 legislation with no significant implications for the provinces.

As a result, the National Assembly decided that the bills should be retagged as Constitution 76 bills directly affecting the provinces. That’s why the NCOP leg of each revised, remitted bill’s passage through Parliament will need to include opportunities for robust public participation in the process followed by each provincial legislature.

As a result, during the final leg of the process, the NCOP committee and provincial legislatures will consider every amendment proposed in each bill from start to finish – regardless of its complexity or constitutionality. This will be an opportunity for a fresh look at each bill, allowing the NCOP to go beyond the President’s concerns and revisit important issues not considered by the National Assembly committee last year.

Expert viewpoint

Against that backdrop, on workshop day one – having been instructed not to comment on the Copyright Amendment Bill itself – five experts in the field of copyright law briefed members of the NCOP committee and their counterparts in the provincial legislatures on an array of complex matters underpinning the amendments now being proposed in the bill as a whole.

Some are based on a newly crafted, alternative policy approach to “fair dealing” (the approach now informing South Africa’s copyright legislation) – building on American “fair use” and introducing a local version known as “hybrid fair use”. In laypersons’ terms, it will give the courts more latitude to interpret a less-rigid Copyright Act, as amended by the bill. Which will allow judges to interpret the act’s scope and contours case-by-case, determining when a creative work should be copyright-protected and when that protection should be limited.

At present (again in laypersons’ terms), “fair dealing” ensures that Parliament, through the legislation itself, determines the level of copyright protection to which a creative work is entitled. A closed list of exceptions in the act allows access to certain creative works in specific circumstances without the permission of the copyright holder – but only where less-restricted access would be in the best interests of most ordinary South Africans.

The merits or otherwise of “fair use” and “fair dealing” are one of several issues behind increasingly polarised views among the bill’s stakeholders. Others are whether the amendments envisaged comply with various international treaties – and the integrity of the parliamentary process itself.

Panellists at the first workshop were drawn from academia. Proceedings opened with Professor Owen Dean, who set the scene by explaining the basics of copyright law. Professor Tobias Schonwetter followed with his perspectives on copyright exceptions and limitations. Then came Dr Desmond Oriakhogba, who provided an overview of the role of collecting societies and the Copyright Tribunal; and Professor Malebakeng Forere, who unpacked the implications of copyright in the age of technology, especially given South Africa’s obligations under various international treaties.

But despite the wealth of information shared – and possibly because of its complexity – only a handful of workshop participants asked questions, most of which were about contractual matters beyond the scope of copyright law itself.

It was left to Forere to add some spice to the proceedings by drawing attention to the opposing political ideologies associated with “fair use” and “fair dealing”. Which prompted Schonwetter to allude to the pitfalls of making copyright an ideological issue – and committee chair Mandla Rayi to caution fellow workshop participants against allowing themselves to be influenced by any perceived bias in the material shared.

This was a commendable insight on Rayi’s part, since even the academics selected as panellists are perceived to be biased – especially by stakeholders critical of their views. Of course, it remains to be seen if the sensitivities underscored during this illuminating exchange will be observed as the parliamentary process continues to unfold.

During the Copyright Amendment Bill’s first passage through Parliament, it attracted considerable media attention. There are at least 400 articles out there – not to overlook numerous clips of interviews with one expert or another on radio and TV.

By contrast, the Performers’ Protection Amendment Bill has received very little. Less-complex and relatively uncontroversial, it was the focus of a second, shorter workshop on 25 October, a week after the first.

This time, participants received presentations from Dean and the Companies and Intellectual Property Commission’s Kadi Petje on the basics of the Performers’ Protection Act – about which, surprisingly, none of the attendees asked any questions at all. Perhaps they were overwhelmed by the information shared at both workshops.

As Dean said, intellectual property and copyright law are highly specialised. Most laypeople (and the politicians among them) are unaware of how much they’re affected by each act and the amendments now being considered. Worse still, according to Dean, few performers know about the rights they enshrine. Which is why he and Petje believe there should be far more education and awareness-raising on both pieces of legislation. 

Sport, Arts and Culture Minister Nathi Mthethwa seems to agree. His views on the matter are articulated in a written reply recently circulated by Parliament and posted on the Parliamentary Monitoring Group website.

Responding to a question from the EFF’s Brian Madlingozi about steps taken to “mitigate the embarrassing financial situation” in which elderly local performers often find themselves, the minister attributed them not only to “unfavourable contractual agreements between creatives and their employers”, but also to a “lack of financial management” on the part of the creatives themselves.

It is with these complex, often heart-rending issues in mind – with all their related implications for trade, jobs and the economy – that the next leg of the parliamentary process is so fundamentally important. During more than two years of regular committee meetings on the bills before they were passed in March 2019, most committee members chose not to grapple with the nuts and bolts of copyright law.

Homework not done

And the same level of reluctance to get to grips with the nitty-gritties characterised discussions during the first leg of their second passage through Parliament, as remitted bills.

Being politicians, committee members are generally more comfortable asking questions with implications for bread-and-butter matters dear to the hearts of their constituents. Which may be why most issues raised by the attendees at last month’s workshops focused on contractual arrangements.

But this doesn’t explain why, over the years, political party representatives in each committee have adhered so rigidly to policy positions they may not necessarily have adequately interrogated or even understood. The quality of their input certainly pointed to the need for far more background reading.

Read in Daily Maverick: “‘New copyright bill will take SA into the 21st century at last’

Rarely – over six years – has there been any indication across the ideological spectrum that anyone serving on these committees has bothered to read and inwardly digest the mountain of written submissions received during each leg of the public participation process.

If they had done their homework during the bills’ first passage through Parliament, former National Assembly Trade and Industry Committee chair Joan Fubbs wouldn’t have found it necessary to repeatedly ask her colleagues to “apply their minds” – and the bills might not have been returned to Parliament.

The controversy surrounding copyright law reform in South Africa began long before the bills were tabled, with the release of a draft Copyright Amendment Bill for public comment.

So, when the version eventually introduced in 2017 was found to be so deeply flawed it had to be completely reworked, the gloves came off.

Nevertheless, along with the Performers’ Protection Amendment Bill, it was passed shortly before the 2019 elections and sent to the President to be signed into law.

At which point pro-billers supporting the “fair use” approach to copyright law heaved multiple sighs of relief in anticipation of finally being delivered from the numerous ills associated with copyright during the apartheid era and apparently perpetuated to this day – with considerable gusto, according to one emotionally charged presentation at last year’s hearings.

Concerns about constitutionality

Local performers among the pro-billers long to be free of exploitation at the hands of powerful multinationals accused of reaping the rewards of using their work without paying for the privilege. “Fair use” supporters in the education sector believe the bill will facilitate widespread access to material most students in developing countries can’t afford to buy (and their libraries can’t afford to buy in large enough quantities).

So, 15 months later, when the bills were returned to the National Assembly, their supporters were outraged – blaming the move on the clandestine interventions of monopoly capital, its henchmen and local trade organisations with capitalist agendas hell-bent on resisting reform and entrenching the apartheid-era status quo.

As a result, the bill’s second passage through Parliament has become so politicised it’s difficult to see the wood for the trees.

But, with respect to South Africa’s pro-billers, we really shouldn’t have been surprised by the President’s decision. Concerns about the constitutionality of some Copyright Amendment Bill clauses were expressed long before it was passed – and dismissed. They should have been heeded, as its remittal has clearly demonstrated.


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Because, like it or not (which parliamentary legal services didn’t) the constitutionality of a bill ready to be signed into law and operationalised needs to be taken very seriously. What point can there possibly be in enacting legislation promising reforms that will never see the light of day because of lengthy Constitutional Court challenges?

By contrast, anti-billers with a preference for “fair dealing” rejoiced when the bills were remitted. Unhappy with the quality of an assessment of the social and economic impact of transitioning from “fair dealing” to “fair use”, these stakeholders are concerned about the possibility of widespread business closures, income loss and spiralling economic hardship across South Africa’s publishing, filmmaking and entertainment industries, as well as related value-adding enterprises.

Conducted by the Department of Planning, Monitoring and Evaluation before the bills were originally tabled, the assessment report has never been formally published.

All of which explains why the NCOP leg of the bills’ second passage through Parliament (and the remitted bills’ first) merits close and well-informed media attention.

According to parliamentary legal adviser Charmaine van der Merwe, stakeholder preferences for one or other policy position tend to be articulated in attacks on the process itself. And there have been many.

She made this observation during a post-workshop presentation on what is now procedurally required of the NCOP committee as it deals with both remitted bills. Possibly still smarting from the criticism of her work by several well-respected members of the legal fraternity, she warned committee members to expect to become the target of heated exchanges in the media between interest groups supporting the “fair use” approach to copyright and those in the “fair dealing” camp.

Which is, of course, what happened towards the end of the Copyright Amendment Bill’s first passage through Parliament.

Read in Daily Maverick: “In the copyright jungle, the lion sleeps tonight

However, most criticism from some experts in copyright law has targeted what they perceive to have been poor drafting and what they now believe to have been cosmetic changes to clauses flagged by the President. In their view, not only does the revised bill remain unconstitutional, but poor drafting has made such nonsense of key clauses that they are now potentially damaging to South Africa’s relationship with several major trading partners – and therefore to affected local industries and the broader economy.

Will this, the final leg of the process, address these issues? Perhaps. But only if the people we elected to represent us in Parliament and the provincial legislatures do their homework and really get to grips with each challenging clause of each complex bill. Which at least Rayi has undertaken to do – using the end-of-year recess to read documents prepared by the workshop panellists, along with his copy of a collection of essays titled The Gift of Multiplication. A large pile of the booklets has been made available for distribution to members of the NCOP committee and provincial legislatures. Hopefully, reading material accumulated by various committee support staff over the years will also be circulated for festive-season reading.

The remitted bills’ passage through the NCOP and provincial legislatures can only be enriched by an improvement in the level of commitment demonstrated thus far by parliamentarians. It’s expected to begin early in January 2023 with a call for written submissions, followed about six weeks later by the first round of public hearings.

Only when they receive a report on these hearings will the provincial legislatures begin their own individual public participation processes – at which point more hearings are expected to take place. It could be a bumpy ride. DM

Pam Saxby was Legalbrief Today’s parliamentary correspondent from 2013 to the end of 2021, when she retired. Having written extensively about the Copyright Amendment Bill’s two parliamentary processes to date, she continues to monitor developments on the bill, which was passed by the National Assembly in September and is now with the NCOP.

 

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Comments - Please in order to comment.

  • OWEN DEAN says:

    As one who made written representations to, and appeared before, the Trade and Industries Portfolio Committee regarding the Bills when they were before the House of Assembly, I despaired of the Bills ever receiving properly informed attention by the legislature. Having now had to opportunity to address the Select Committee of the NCOP as a prelude to its consideration of them, I am greatly encouraged. There has at least been an attempt to get to grips with the fundamentals of the law.
    It must be appreciated that Copyright (along with its baby brother Performers Protection) are very complex and esoteric branches of the law which are very difficult to fathom for the uninitiated. Along comes these amendments which in themselves are almost unintelligible to all but the best informed.
    Parliamentarians are expected to get to grips with their meaning and effect so that they can adopt challening amendments to law which in itelf is somewhat of a mystery to them. It is a daunting if not impossible task. The situation is compounded by the fact that the amendments are bady drafted and are difficult to comprehend.
    Hopefully the refreshing new approach now being adopted in the NCOP will inform the legislators to the point that they realise that the legislation is unfit to be passed in its present form. What is required is that the Bills should be referred to a committee of true experts in the law and they should be charged with reviewing it and licking it into proper shape.
    Prof O. Dean

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