Legislation: Experts called in to advise on Copyright Bill

The latest draft of the beleaguered Copyright Amendment Bill has finally been sent to a panel of technical experts appointed in March to assist the National Assembly Committee on Trade and Industry with its work. Allowed just 18 days to make recommendations, the panel has been asked not to ‘engage’ the committee on ‘the merits or demerits’ of the proposed new statute – or on ‘policies agreed … by the committee and … thus reflected in … (its provisions)’. According to the committee’s ‘instructions’, input from each panel member should focus on: ‘the appropriateness of the terminology used’ in the context of local copyright law parlance; whether the Bill’s ‘wording’ reflects policy imperatives outlined in the memorandum on its objects; whether clauses seeking to address SA’s obligations in terms of the international treaties concerned ‘correctly reflect’ their content; and ‘whether any of the clauses raise constitutional concerns’.

Astoundingly, writes Pam Saxby for Legalbrief Policy Watch, the committee saw fit to remind panel members that only those ‘legally qualified’ to do so should flag constitutionality concerns. They are also required to bear in mind that, in seeking to provide for SA’s compliance with international treaties yet to be ratified, it is ‘acceptable’ for the Bill’s ‘scope’ to be ‘broader’ than that of a treaty – but not ‘narrower’. As far as can be ascertained, the panel includes Advocates Joel Baloyi, Ntsietso Makhafola-Mokitimi and Natasha Pather, as well as Andre Myburgh, Thabang Mathibe, Wiseman Ngubo and Michele Woods.

Parliamentary Monitoring Group records confirm a decision to ‘send’ the Bill to the panel of technical experts was made on 5 September – possibly not only in the absence of committee chair Joan Fubbs (who left after lengthy deliberations on the contents of a report on the National Credit Amendment Bill – ‘to hear the testimony of Markus Jooste, former CEO of Steinhoff’) but possibly also with too few members present to constitute a quorum. Whatever the case, the records make no reference to a timeframe or any ‘instructions’ on what the panel should or should not do. However, they do refer to approaching the panel before the end of the period allowed for public comment on the most recent draft clause amending provisions in the Act not addressed in the version tabled in Parliament and since reworked. Perhaps this explains why it took five more days to contact panel members.

As Legalbrief Today has already reported, on 31 August stakeholders were invited to comment by 21 September on a new clause seeking to penalise any collecting society not accredited within the prescribed timeframe and therefore operating illegally. On 6 September, the committee approached the House for permission to make changes to the Act beyond the scope of the Bill tabled in Parliament last year. Given the retrospective nature of this request and the deadline since imposed on a panel of technical experts called in at the 11th hour, it is hardly surprising that stakeholders are increasingly questioning the integrity of the parliamentary process to date.