For at least eight years, intellectual property and copyright legal eagles have been debating the constitutionality of South Africa’s joined-at-the-hip Copyright and Performers’ Protection Amendment Bills, their compatibility with international treaties and their intended and unintended consequences.
In creative industry circles, there are some stakeholders who support at least one of them, and others who don’t. So, it’s hardly surprising that now, with the two Bills’ second passage through Parliament coming to an end, speculation is rife. Will they be passed as they are, warts and all? Will the provincial legislatures call for changes? If so, will they want one Bill changed or both?
The outcome of this final leg of the parliamentary process will depend on how many ANC-controlled provinces believe more amendments are needed for the Bills to be workable and achieve their generally noble objectives. The provinces in that camp will then have to agree on what needs to be changed.
Section 118 of our much-vaunted Constitution makes it clear that the provincial legislatures are bound to facilitate public access to their sittings and committee meetings. Subsection 118(1)(b) requires them to conduct their business “in an open manner”.
And while “reasonable measures may be taken” to regulate public and media access, according to subsection 118(2) a provincial legislature may not exclude anyone from a sitting or meeting “unless it is … justifiable to do so in an open and democratic society”.
Yet despite this, stakeholders have encountered obstacle after obstacle in their efforts to attend or observe provincial public hearings and committee meetings. Which is mainly because, in most provinces, the process has been far from transparent.
In only three legislatures, have committee support staff consistently notified stakeholders of upcoming public hearings and meetings. Of these, the support staff of two committees have facilitated access to some (not all) hearings by conducting at least one virtually or as a hybrid event.
All three of these more communicative, open-minded provincial committees have adopted their negotiating mandates on the Bills at meetings virtually accessible to stakeholders as observers. One far less communicative committee eventually did the same – but only at the last minute, when a more senior bureaucrat was persuaded to intervene.
Of the remaining provincial committees, the support staff of three have communicated with stakeholders sporadically – occasionally recalcitrantly, as if under duress. The others have completely ignored all emails requesting the dates of hearings and committee meetings on the Bills.
Fortunately, the support staff of some provincial committees involved in these types of processes use Facebook, Twitter and YouTube to advertise and retrospectively post video clips of public hearings on Bills being considered. But it’s left to stakeholders themselves to discover this modus operandi and find ways to monitor social media platforms daily – on the off chance that valuable information might be made available.
And it gets worse. More often than not, alerts to upcoming hearings are posted at ridiculously short notice and include not even the vaguest possible hint at livestreaming. This leaves stakeholders with the stamina and resources to monitor social media at the mercy of a system in which events seem to be randomly selected for virtual public access – in real time and retrospectively.
In the case of the Copyright and Performers’ Protection Amendment Bills, where our six less communicative provincial committees support staff have used virtual platforms for meetings on their negotiating mandates, the dates have generally been withheld. So have the dates of physical meetings, assuming any occurred.
The support staff of three provincial committees have simply not responded to emails asking for meetings dates. Two stopped communicating with stakeholders as soon as their public hearings ended.
On 25 April, the NCOP committee to which provincial legislatures will eventually submit their negotiating mandates on the Bills met to finalise a report on its own public hearings – and the input received in submissions made directly to that committee. It was only then that members were told that the Free State and North West legislatures had either only just begun their provincial hearings or had not held any at all.
At the time, 16 May had been earmarked for considering all nine provincial negotiating mandates. Had the meeting not been reluctantly postponed by one week, the North West and Free State legislatures would have been hard pressed to collate and even minimally analyse input made during their hearings and in any written submissions received.
As it is, even with an extra week at their disposal these two latecomers to a nearly five-month provincial public participation process are likely to be struggling. Which could affect the robustness of stakeholder input analysis ostensibly underpinning each negotiating mandate. This is especially so when valuable grassroots perspectives shared during public hearings are communicated in an African language or Afrikaans.
At present, the NCOP committee is scheduled to consider all nine provincial negotiating mandates on 23 and 20 May – and final provincial mandates on 13 June. This is in anticipation of a pre-winter recess NCOP plenary when both Bills might be passed and sent to the president for signature. There are no guarantees they will be, by the way.
Despite assurances from committee support staff that these meetings will be open to stakeholders and the media, rumours abound that a decision has been made to restrict access. Which would be unconstitutional and against the NCOP Rules. But space in the committee rooms booked for these events is limited and there are no plans for virtual access or livestreaming.
But back to the provinces themselves. A few stakeholders have managed to winkle out sufficient information to glean some insight into positions already taken by some ANC-controlled provincial legislatures. And enough is available to point to the distinct possibility of material changes to the Copyright Amendment Bill. Which means that its second passage through Parliament – and that of the Performers’ Protection Amendment Bill – could well be stalled once again.
With hindsight, it was probably inevitable that pressure from some stakeholders to pass the Performers’ Protection Amendment Bill urgently would stymie any attempts at taking a more cautious approach towards finalising the Copyright Amendment Bill. Yet the rather more complex and diverse issues in that Bill have always required more careful scrutiny.
Nevertheless, the powers that be have doggedly continued along the well-worn path of prematurely setting one unrealistic date after another for an end to the parliamentary process. Why? To appease musicians and performers aggrieved by the time it has taken to pass the Performers’ Protection Amendment Bill? To garner their support during the run-up to next year’s elections? Or to demonstrate to powerful vested interests that, as South Africa’s ruling party, the ANC calls the shots no matter what’s at stake – and to hang with the consequences, even if they do hurt some of “our people”.
Whatever the case, the generally haphazard, poorly communicated and largely inaccessible provincial process to which the Copyright and Performers’ Protection Amendment Bills have been subjected may have done untold damage.
Just for starters, it has undoubtedly dealt yet another blow to South Africa’s increasingly fragile standing as an attractive investment destination. Which is a pity. Some creatives depend almost entirely for their survival on opportunities generated by multinational stakeholders with interests here.
And to anyone thinking, “But who cares anyway? It’s just a few local painters, poets, playwrights, storytellers, writers, actors, musicians and the like…”
Well, guess what? The Expropriation Bill is already going through a similar process. And that includes its controversial no-compensation-in-certain-circumstances clause, for the umpteenth time, too, in one form or another.
Property ownership lies at the heart of both the Copyright Amendment Bill and the Expropriation Bill. So, it’s not only for the sake of preserving South Africa’s rich cultural heritage that our provincial legislatures must be held to account and forced to take their constitutionally enshrined obligations seriously. DM