infoJustice

Sanya Samtani
Senior Researcher, Mandela Institute
University of Witwatersrand
Orcid: https://orcid.org/0000-0003-0448-8798

Last week, in the latest instalment of South Africa’s copyright reform saga, the Select Committee on Trade and Industry, Economic Development, Small Business, Tourism, Employment and Labour at the National Council of Provinces (one of the houses of Parliament in South Africa), held a clause-by-clause vote on proposed amendments to the Copyright Amendment Bill [B13D-2017] (CAB) and Performers Protection Amendment Bill [B24-2016]. I summarise some of the salient outcomes of this vote below with regard to the CAB.

These amendments were a result of an extensive country-wide public participation exercise carried out by the National Council of Provinces (NCOP) between December 2022 and May 2023 in multiple locations within each province. Following on from the President’s constitutional reservations to the CAB circa June 2020, the parliamentary joint tagging mechanism decided, out of an abundance of caution, to retag the CAB as a bill affecting the provinces (a section 76 Bill). As part of a collaboration with other academics, I have written about the tagging issue here (and the Department’s views on tagging are available here as well as two legal opinions on tagging are available here and here). The CAB was thus transmitted to the NCOP, after two rounds of amendments were effected to it to address the President’s reservations, following public consultation (which, as part of a collaboration with other academics, we participated here), at the National Assembly.

The procedure at the NCOP is as follows: after conducting a series of public hearings and publishing calls for written and oral submissions in every one of the nine provinces in the country, each province must table a provincial legislative mandate in accordance with the Mandating Procedures of Provinces Act, 2008. This is prepared in two parts: first, every province must prepare a negotiating mandate and then a final mandate. Negotiating mandates must follow a specific template set out in the Act: stating whether the province is in favour of the CAB, against the CAB, or in favour of the CAB subject to specified amendments. The final mandates, prepared after the negotiating mandates, do not allow provinces to propose additional amendments – they are simply in the nature of a vote in favour of the CAB as amended, against the CAB as amended or an abstention. Since there are nine provinces, and every provincial delegation gets one vote, at least five provincial delegations must ultimately vote in favour of the CAB for it to move to the next stage in the legislative process. The voting procedure is the same for clause-by-clause votes on amendments emerging from the negotiating mandates, that at least five provincial delegations must vote in favour of an amendment for it to pass.  

Turning to the negotiating mandates: On 26 May 2023, provincial negotiating mandates indicated that out of the nine provinces, the Free State (one) was in favour of the CAB passing without further amendments; Eastern Cape, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, North West, and the Northern Cape (seven) were in favour of the CAB passing subject to certain amendments; and the Western Cape (one) was against the CAB passing at all. The majority of negotiating mandates thus included suggested amendments to the CAB.

These amendments were tabled and responded to by the proposing ministry, the Department of Trade, Industry and Competition, and Parliament’s Constitutional and Legal Services Office (CLSO). They were grouped into two categories: general issues and clause-by-clause amendments/issues. General issues that were raised by provinces included concerns about poor drafting (which, the CLSO explained had been resolved by establishing a subcommittee to redraft the Bills entirely with the help of legislative drafting and subject experts more than five years ago), lack of adequate public participation (which, the CLSO explained was not the case as both houses of Parliament have engaged in several rounds of public participation and applied their minds to the submissions received), the impact of the IP Laws Amendment Act that has not yet been brought into effect, and an understanding that to the extent that it limits rights in the Bill of Rights, the CAB must pass muster under s 36 of the Constitution (which, the CLSO explained in general and in the clause-by-clause analysis that it does in fact pass muster, including with regard to the right against arbitrary deprivation of property as well as the right to choose one’s own profession and trade).

Turning to the clause-by-clause voting process that took place on 13, 14, and 20 June 2023, some of the salient outcomes were as follows:  

• The Committee voted in favour of amendments that gave effect to the Constitutional Court judgment in Blind SA v Minister of Trade, Industry and Competition. Crucially, the Committee voted on an amendment to the short title and commencement of the CAB to include a provision stating that the relevant definitions as well as the accessible format shifting and cross-border exchange provision (s 19D) must come into force upon the date of publication in the Gazette (effective immediately if/when the President assents to it). This is notwithstanding the President’s prescribed date to bring the rest of the Act (as amended) into force, if/when it gets to that stage.
• The Committee voted in favour of amending the definition of ‘authorised entity’ to be inclusive, eliminating a strict interpretation that regulations were required to prescribe authorised entities before they could make use of (s 19D). In addition, the Committee voted in favour of retaining the existing scope of application of s 19D to people with all disabilities rather than constraining its scope to people with visual and print disabilities only.
• The Committee voted in favour of the amendment that the phrase ‘equitable remuneration’ be included wherever ‘royalties’ appears in the Bill including provisions on share in royalties in literary, musical and audio visual works (ss 6A, 7A, 8A among others).
• The Committee voted in favour of retaining the provisions on general fair use with an illustrative list of purposes including private and personal use, criticism, current events etc., (s 12A), specific exceptions including quotation, translation, broadcasting, and backing up data (s 12B), temporary reproduction and adaptation (s 12C), and reproduction for educational and academic activities (s 12D) without any change (but for a minor amendment to s 12B(6)).
• The Committee voted in favour of retaining the provisions on the preservation and conservation of the collections of galleries, libraries, archives, and museums (s 19C) without any change.
• The Committee voted in favour of retaining the provision on reversion rights (s 22) and orphan works (s 22A) without change.
• The Committee voted in favour of retaining the Chapter on regulating collecting societies and collective management organisations (Chapter 1A) without change.
• The Committee voted in favour of retaining criminal liability for circumvention of technological protection measures (TPMs) rather than shifting to civil liability. The Committee voted in favour of amendments clarifying that fault must be required in the form of intention to impose criminal liability (s 27(5B)(a)).
• The Committee voted in favour of amendments to ensure that the prohibition on circumventing TPMs without authorial consent does not limit the exercise of other exceptions in the CAB by deleting s 28P(2). This draws on the reasoning in the Blind SA decision.
• The Committee voted in favour of retaining the provisions that vest the Copyright Tribunal with discretion in the exercise of its mandate and its power to order administrative fines (s 29A, H).
• The Committee voted in favour of retaining the provisions on unenforceable contractual terms (relevant to contractual override issues) (s 39B).

These amendments (and others) will now make their way into an ‘E-list’ that the CLSO will present to the Committee on 25 July 2023. Provincial delegations will then present their final mandates on 5 September 2023, where they will vote on the CAB as amended by the E-list – as a whole. There are no amendments that can be made at this stage. Once final mandates are presented and adopted, if at least five out of nine provincial delegations vote in favour of the CAB, it passes and moves to the National Assembly for the next phase. The National Assembly must then vote on whether to pass the CAB as amended by the NCOP, or decide if it requires further amendments. If it is the latter, then the NCOP version of the CAB and the NA version of the CAB as amended goes to the Mediation Committee for further discussion.

Note: a version of this update appears on the IPKat blog (https://ipkitten.blogspot.com)