Mandela said, “Justice needs not only to be done, but must be seen to be done.” How timelessly pertinent this statement is. And how relevant to the painfully meandering process of finalising the Copyright Amendment Bill, which began in 2011.
Parliament has already had one bite at the cherry and is now in the closing phase of its second. First time around, the lengthy, badly managed business of reworking the Bill took its toll in countless ways, exhausting the patience of stakeholders and parliamentarians alike, regardless of their views. Since the revised – ostensibly to address presidential concerns about the revised Bill’s constitutionality – controversial piece of legislation is now in the final leg of a second parliamentary process that could see it passed this year, warts and all. But only if nothing goes wrong procedurally. Which is why some of us are keeping a close eye on committees in the provincial legislatures, where public hearings are already taking place.
The idea is that ordinary South Africans should be given opportunities (closer to home than Parliament) to have their say not only on the Copyright Amendment Bill, but also on a far less contested piece of legislation: the Performers’ Protection Amendment Bill. They’re linked in ways some stakeholders can see no inherent reason for, unnecessarily complicating an already convoluted process. So far, each hearing has begun with a presentation from the national Department of Trade, Industry and Competition with the intention of explaining how (in the department’s view) the two Bills might fulfil promises of a better deal for musicians, performers and the blind, visually impaired or otherwise print-disabled – and facilitate access to information for research and education purposes (among other things).
But on 16 February in Randfontein, another presentation was added to the mix. Dated 4 November 2022 , the document is entitled “Gauteng Department of Economic Development: Presentation on the Views of the Executive on the Performers’ Protection Amendment Bill … and Copyright Amendment Bill”. The date suggests it had already been shared by Gauteng MEC for Economic Development Tasneem Motara with participants in another unnamed meeting. It begs several questions. What, or who, is “the executive” in a provincial context? How much time did the executive spend considering the Bills and developing their views? Do these views apply to the Bill regardless of what people say during the public participation process? And if so, why bother to have one?
According to a page on the South African Government website dedicated to explaining the “structure and functions” of our various state institutions, a provincial executive authority is its executive council. That includes the premier, of course. So, when it comes to the Gauteng provincial legislature’s Copyright Amendment Bill process, as the member of the executive council responsible for economic development, Motara is understood to represent the executive authority as a collective. This answers the first question.
As for the second, who knows how much time Gauteng’s executive as a collective spent developing their views? Probably only its members and their support staff.
Answering the third question (and the fourth by default) takes a little more effort. Towards the end of the presentation’s section on the Copyright Amendment Bill, at the top of page six, there’s a sentence saying that “the Executive supports the passing of the Bill”. Which tends to suggest that, collectively, the Gauteng provincial executive wants the bill passed as it is now – without taking any notice of input during the public participation process. In this case, who could blame a disinterested observer for thinking that, in Gauteng, calling for written submissions and hearing the views of stakeholders and ordinary citizens on the Copyright Amendment Bill is really no more than a box-ticking exercise.
The pronouncements in Motara’s presentation document take on a new dimension against the backdrop of the Copyright Amendment Bill’s broader parliamentary process. This is well documented on the Parliamentary Monitoring Group website and available for all to see.
Tabled in Parliament in 2017, the bill was prepared by the Department of Trade and Industry over a period of at least six years, when Rob Davies was the Cabinet member responsible for that portfolio. In the context of the bill’s first passage through national Parliament, Davies represented the executive authority. At the time, Ebrahim Patel was the Cabinet member responsible for a portfolio then managed by the Department of Economic Development. When Davies retired and the two departments merged, Patel became Minister of Trade, Industry and Competition – a position he held when the bill was returned to Parliament in 2020. And as far as we know, neither he nor Davies has ever stated, in a presentation to parliamentary committee members before their public hearings, that “the Executive supports the passing of the bill”.
To do so could be perceived as political interference, as the executive not staying in its lane – and therefore as an attempt to influence the committee process of another branch of government, the legislature. This, in turn, could be interpreted as showing blatant disregard for the constitutionally enshrined doctrine of the separation of powers, which are explained in Chapter 12 of a document entitled “The Constitutional Law of South Africa”. It is generally understood that, in terms of that doctrine, a parliamentary committee (and the committee of a provincial legislature) is responsible for holding its executive to account. The intention is that this should discourage members of Cabinet and the provincial councils from abusing the powers bestowed on them by virtue of their positions.
So, if Gauteng MEC for Economic Development, Tasneem Motara’s presentation on 4 November 2022 was made to members of the Gauteng legislature’s Economic Development Committee, the executive may have blundered badly. And the committee may have erred by including her presentation in a hearing on the bill. This is especially because, according to the hearing programme, it was made before members of the public were given an opportunity to speak.
It may not have been Motara’s intention to influence the views of hearing attendees or those of committee members now tasked with developing an informed position of their own on the Copyright Amendment Bill. That said, several clauses are notoriously contentious – and complex, couched as they are in legal terminology, practically a language of its own. In that context, some attendees (possibly including a few committee members) may have welcomed the guidance provided. That’s because, for what may have been similar reasons, throughout the bill’s first passage through national Parliamen,t members of the National Assembly’s Trade and Industry Committee tended to rely on input from parliamentary legal services – which they rarely interrogated. So did their colleagues in the committee’s NCOP counterpart. And the same happened when the remitted Copyright Amendment Bill was meant to be fine-tuned to address the President’s concerns.
During both processes, parliamentary legal services worked closely with Department of Trade and Industry (and, more recently) Competition officials, whose position was informed by government policy – or so many committee members were either told or assumed. The problem is that copyright policy generally falls under a broader policy on intellectual property, which in South Africa is still being developed.
Ostensibly to implement recommendations in a report published in 2011 by the Copyright Review Commission (chaired by Judge Farlham), seven years later the then Department of Trade and Industry released South Africa’s “Intellectual Property Policy Phase 1” (IPPP1). Focusing on public health and the implementation of commitments made in international agreements, it uses the term copyright nine times – and then only briefly and rather superficially. The term first appears in a list of existing legislation, which includes the Copyright Act, 1978.
It is then used only in the context of references to parallel imports (“products legitimately placed on the market in one country and brought into another without the consent of the patent holder”); exemptions under the Competition Act, 1998; the World Intellectual Property Organisation’s Standing Committee on Copyright and Related Rights (to which South Africa apparently pays “special attention”); the Marrakesh Treaty, 2013 (“facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled”); traditional and indigenous knowledge; access to knowledge in general, especially for research and education; and the “creative industries”.
At the time, it was envisaged that “over the medium term” an IPPP2 would be developed and IPPP1 updated – overseen by an “Inter-Ministerial Committee on Intellectual Property” yet to be established, apparently. According to IPPP1, among other things this “consultative forum” would be responsible for identifying (and presumably addressing) the entire policy’s “legislative and regulatory implications” with the aim of “facilitating” its implementation. IPPP2 would deal with the “several remaining core concerns around intellectual property” not covered in IPPP1. These were understood to range from South Africa’s “developmental and poverty alleviation needs” to interventions intended to “safeguard the country’s cultural, agricultural and biological heritage” (among other things by “promoting the development of green technologies”).
The devil should be in the detail
But, as they say, the devil is in the detail – of which there is very little in IPPP1 on matters copyright.
All of which was swept under the carpet during National Assembly Trade and Industry Committee deliberations on the Copyright Amendment Bill in 2017, 2018, 2020, 2021 and 2022 – and the truncated deliberations of the committee’s NCOP counterpart in 2019. These took place under the auspices of South Africa’s fifth democratic Parliament. However, thanks to the bill’s remittal, the sixth democratic Parliament’s NCOP Committee on Trade and Industry, Economic Development, Small Business, Tourism and Employment and Labour (what a mouthful) has been given a fresh opportunity to consider and finetune the contents of a revised Copyright Amendment Bill. And this process is supposed to be informed by stakeholder submissions, input received during parliamentary hearings, and mandates from the provincial legislatures.
In turn, a provincial mandate is supposed to be informed by the careful consideration of stakeholder submissions received by the committee concerned, along with input made during its own public hearings. Which means that the statement on page 6 of Motara’s presentation to committee members and stakeholders on 4 November 2022, and again on 16 February 2023 – that “the Executive supports the passing of the Bill” – jumped the gun. As a collective, the executive took a position on the Copyright Amendment Bill long before arranging public hearings and going through the other steps entailed in fulfilling its legal obligations. One of these steps is to consider all views expressed during the public participation process, including those articulated in written submissions.
At the time of writing, only one provincial hearing on the two Bills had been held virtually – in Mpumalanga. And although some provincial legislatures do make audio recordings of their hearings, it’s still not clear if (or how) they will be made available to ordinary South Africans. So, at this stage in the provincial public participation process, it remains to be seen if input from a provincial executive at hearings is common practice. Which, of course, would be to fly in the face of the constitutionally enshrined doctrine of the separation of powers.
This month, the Gauteng Legislature is expected to hold hearings on the bills in Vereeniging, Boksburg and Tshwane, none of which will be accessible virtually. So, who will make sure the Randfontein blunder isn’t repeated? And who will keep an eye on other provincial executive authorities in case they, too, go beyond the pale?
The media? Don’t hold your breath. They lost interest in the Copyright Amendment Bill long ago. Which means it will eventually be left to the courts to decide if the procedures themselves were flawed, let alone the bills’ contents. And it could take years for the courts to make a ruling. This is especially because – according to many experienced intellectual property law practitioners and legal experts – the Copyright Amendment Bill is riddled with errors, based on arguments defying all logic and reason. What a tragedy, especially because nobody seems to care. DM