Legislation: Copyright Bill process bogged down

The Copyright Amendment Bill has become mired in a process so fundamentally flawed that the National Assembly’s Trade and Industry Committee went full circle at its meeting yesterday – flagging clause after clause for the attention of a sub-committee clearly out of its depth, reports Pam Saxby for Legalbrief Policy Watch. At their meeting the previous day, sub-committee members were told that input from Department of Trade and Industry deputy DG Evelyn Masotja was intended to ‘build capacity’ and not for discussion – seven months after the sub-committee was established to consider the complex issues concerned. Parliamentary Monitoring Group records confirm that a working draft of the Bill correcting shortcomings identified during parliamentary hearings was circulated to the full committee in October. But the process of identifying legal experts to support the sub-committee in its work was only finalised in March. Which may explain why ‘capacity’ has yet to be built and is probably why, as Legalbrief Today reported on Wednesday, the sub-committee chose to refer the reworked Bill back to the full committee to consider clause by clause – perhaps hoping that more hands would make lighter work of this challenging task.

Unfortunately, what was not mentioned by sub-committee chair Lerato Theko when she made this recommendation to the full committee and it was adopted with no questions asked was the pivotal importance of input from the department. Among other things, members need to understand why its representatives believe the Bill should be limited to key Farlam Copyright Review Commission report proposals: an option first mooted after the parliamentary hearings but rejected outright by ANC MPs. When the committee embarked on its deliberations yesterday opposition party members took full advantage of every opportunity to ask for clarity on the rationale behind proposals for retaining some clauses and removing others. It was left to former Safety and Security Minister David Mahlobo, a new ruling party representative in the committee, to draw attention to the pitfalls (at least in his view) of continuing in this manner. He described yesterday’s proceedings as ‘traumatic’, possibly because he appeared to be failing in his repeated attempts to steer party colleagues away from ‘diluting’ policy principles with ‘technical applications’ he believes belong in the ensuing regulations.

As things turned out, the committee room in which this fiasco took place had been double-booked, so the meeting was brought to an abrupt halt just three hours into the process. By then members had reached page 12 of a 52-page document and had not even begun to consider the vexed issue of fair use as opposed to fair dealing. Yet the sub-committee – in consultation with its panel of legal experts – is expected to be ready by 8 May to present the full committee with a possibly penultimate version of the Bill to be tabled in the House for a second reading debate. As Legalbrief Today has also reported, according to parliamentary legal adviser Charmaine van der Merwe, members have until 30 May to complete their work on the Bill: a deadline possibly dictated by a prolonged winter recess and the end of the 5th Parliament in anticipation of next year’s elections.