Dear Trade,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

On 20 March 2020, the EU Ambassador to the Republic of South Africa Riina Kionka sent a letter to Dr. Cassius Reginald Lubisi, Director-General in the Office of the South African President, on the subject of South Africa’s copyright regime, available online at: https://eeas.europa.eu/sites/eeas/files/... In the letter, Ambassador Kionka states that she is writing on behalf of the European Commission.

Ambassador Kionka states in the letter in reference to South Africa’s Draft Copyright Bill: “The European Commission has participated continuously throughout the consultation process which began in 2015 and culminated in March 2019 with the final Copyright Bill being sent to the President for assent. In particular, by addressing its contributions on 16 September 2015 to Mr. Lionel October, Director General of the Department of Trade and industry, and on 22 February 2019 to the Hon. E. Makue Chairperson of the Select Committee on Trade and Industry Relations.”

I am explicitly seeking any information the Commission has in connection with the letter of 20 March 2020, as well as any information related to the South African Draft Copyright Bill. I do not want this request to be limited to information that was registered as "not short-lived" or "not unimportant". This request should therefore also contain short-lived information such as drafts, inter-agency communication, e-mails, text messages, memos, and follow-up communication, including responses to the letter of 20 March 2020. I am requesting all information, including internal communication, inter-service consultation, communication with the EEAS, any South African bodies, or with third parties such as external stakeholders regarding or in connection with the letter of 20 March 2020 or the South African Draft Copyright Bill.

Yours faithfully,

Julia Reda

Dear Trade,

there is no legal basis for requiring my postal address as a prerequisite for processing my freedom of information request, which is my right under Regulation 1049/2001. I regret that the European Commission appears to make this procedural requirement for the sole purpose of discouraging citizens from using the portal asktheEU, which is making an important contribution to the transparency of the European institutions. Rather than pushing me to choose between publicly disclosing personal information and ensuring the transparency of the freedom of information request, the European Commission should be embracing and actively supporting asktheEU's important work.

But that is a topic for another day.

My postal address is:

Julia Reda
Gesellschaft für Freiheitsrechte e.V.
Hessische Str. 10
10115 Berlin
Germany

Yours faithfully,

Julia Reda

Dear Directorate General for Trade,

according to my knowledge of Belgian public holidays, the time-limit of 15 working days will expire on 20 May 2020, not 25 May 2020. Should you come to a different conclusion, please provide me with your calculation. I look forward to your response by 20 May 2020.

Yours faithfully,

Julia Reda

Dear Directorate General for Trade,

thank you for the clarification. Since I sent my initial request 28 April 2020, and also provided my postal address (which you do not need) on 28 April 2020, the time-limit should expire on 20 May 2020. Public holidays on 21 and 22 May should not affect the time-limit, as they occur after the time-limit has expired.

Yours sincerely,

Julia Reda

Dear Trade,

Please pass this on to the person who reviews confirmatory applications.

I am filing the following confirmatory application with regards to my access to documents request 'EEAS letter to the Office of the South African President on the South African Draft Copyright Bill'.

The response to my access to documents request of 28 April 2020 is long overdue. After an initial, exceptional extension of the time limit was requested by DG Trade on 19 May 2020 pursuant to Article
7(3) of Regulation (EC) No 1049/2001, on the grounds that a consultation of third parties was necessary, DG Trade failed to respond within the extended time limit. There is no legal basis in Regulation 1049/2001 for an additional extension of the time limit after the initial extension. Please ensure that the response to my access to documents request is delivered promptly.

In the event that DG Trade replies to the initial request after the submission of this confirmatory application, I reserve my right to make amendments concerning the nature and scope of this confirmatory application.

A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/en/request/eeas...

Yours faithfully,

Julia Reda

Dear Directorate-General for Trade,

Please pass this on to the person who reviews confirmatory applications.

Following up to my confirmatory application filed with regards to my access to documents request 'EEAS letter to the Office of the South African President on the South African Draft Copyright Bill' on June 17, 2020, I would like to inform you that I have in the meantime received an initial response to my request.

As announced in my confirmatory application, I would like to amend my confirmatory application by adding the following points, after having consulted the documents released thus far.

1. In its response to my access to documents request, DG Trade indicates that it identified 9 documents access to which was withheld on the grounds that third parties who had sent those documents “have not agreed to their release arguing that, in the absence of information about the applicant’s identity, their member companies’ commercial interests, including those related to their business relations with other stakeholders, could be undermined”. I agree that my identity be released to these third party stakeholders. I am convinced that knowing my identity will reassure stakeholders that the release of their statements would not jeopardize any of their member companies’ commercial interests.

In any event, there is an overwhelming public interest in the disclosure of these documents, as the efforts of private stakeholders trying to derail the adoption of the South African copyright bill through interventions with the European Commission and the US Trade Representative are a matter of controversial public debate in the media, as evidenced by the following small selection of the many press publications on the subject:

https://www.iol.co.za/business-report/co...
https://www.heise.de/newsticker/meldung/...
https://www.techdirt.com/articles/202004...
https://www.techdirt.com/articles/201910...
https://www.pressreader.com/south-africa...
https://mg.co.za/article/2019-11-01-00-c...
http://infojustice.org/archives/41858
https://theconversation.com/making-sense...
https://businesstech.co.za/news/business...
https://www.researchprofessionalnews.com...
https://www.businesslive.co.za/bd/opinio...

In fact, entertainment industry stakeholders have been actively participating in this public debate, including by making claims about their licensing and revenue sharing practices, when arguing against the introduction of provisions in the South African copyright bill that would strengthen the bargaining position of individual authors or performers. Disclosure of the documents in question is in the public interest, among other reasons, because these documents would shed light on the public controversy surrounding these stakeholders’ interventions in the South African legislative process. In a joint letter of several authors’ organisations to the Director General of DG Trade of 15 March 2019 released in response to my access to documents request (document 26a), those authors’ organisations claim that industry stakeholders’ opposition to the South African copyright reform bill stems from an unwillingness to share revenues with South African authors who live in poverty, further highlighting the public interest nature of the issues described in the withheld third-party documents.

Further, Should the Commission come to the conclusion that despite these reasons, full disclosure of the aforementioned documents is not possible, I request that the documents sent by those third-party stakeholders be redacted in order to remove the information jeopardizing their commercial interests for which an overriding public interest has been denied, and that all other information included in those documents be released. It is extremely unlikely that all elements of the nine documents in question fulfil all three of the cumulative criteria necessary for refusing disclosure under Article 4 (2) of Regulation 1049/2001, namely constituting information that is ‘known only to a limited number of persons’, ‘whose disclosure is liable to cause serious harm to the person who has provided it or to third parties’ and for which ‘the interests liable to be harmed by disclosure must, objectively, be worthy of protection’.

2. The initial response to my access to documents request does not appear to include any information that the Commission deems “short-lived” or “not important”, despite my explicit request to include such information. I am aware that pursuant to the European Commission’s guidelines on document management and access to documents (according to the version from 2015, available here https://www.asktheeu.org/en/request/3597... - should these guidelines no longer accurately reflect the practice of the European Commission, please provide the up-to-date version of these guidelines), the European Commission follows the practice of automatically deleting documents it deems unimportant after six months, including drafts, emails and other texts circulated within an informal exchange of views between colleagues and exchanges on short-lived matters.

I would like to stress that the European Ombudsman has concluded that “failure of the Commission to retain in its possession copies of [...] material after the complainant had exercised his [or her] fundamental right of access to documents, but before the appeal process had been completed, constituted maladministration” (European Ombudsman, decision in case 2134/2018/FP). Please immediately halt the deletion of any remaining documents that fall into the scope of my original request and include them in the response to my confirmatory application, as deleting any material that falls within the scope of my request after the receipt of my original access to documents request would constitute maldaministration.
I would further like to remind you that the European Ombudsman has found that the European Commission cannot refuse access to such documents of a professional nature on the grounds of protection of personal data, and “that the Commission’s failure to ask an official to identify and retrieve e-mails in the official’s work email in-box, so as to allow the Commission to assess whether the emails could be disclosed in response to a request for public access to document, is maladministration” (European Ombudman, decision in case 1050/2018/DL).

3. In the letter of 29 June 2017 (document 9) to the Chairperson of the Parliamentary Committee on Trade and Industry, the EU ambassador indicates that the European Commission is “consulting widely with relevant stakeholders”. I believe there must have been an omission in the documents included, because all the stakeholders that have been consulted according to the documents provided appear to be rightholders' organisations. As consulting widely would clearly require consultation with more than one stakeholder group, please provide all documents relating to all stakeholders that have been consulted on the matter.

4. The correspondence between the EEAS and the European Commission of 21 May 2018 (document 17) appears to be incomplete. In its email to DG Trade, the EEAS is inquiring about “which course of action should be pursued by the Delegation at this stage”, but no response to this email from DG Trade to the EEAS is included in the released documents. It seems likely that this inquiry would have been answered. Please provide any potential follow-up to this message, including documents deemed “short-lived” or “not important”, such as emails, drafts or informal exchanges. Please include emails retrieved from the officials’ work email inboxes that were included in the initial correspondence, in accordance with the European Ombudsman’s recommendation cited above.

5. In an email of 28 February 2020 (document 32), a stakeholder refers to a meeting or phone call that presumably took place on the preceding Monday, 24 February 2020. Please include any documents relating to the meeting or phone call of 24 February 2020, including documents deemed “short-lived” or “not important”, such as emails, drafts or informal exchanges. As this meeting or phone call took place less than six months ago, such information, both leading up to and following the meeting or phone call, should still be available and not have been subject to the European Commission’s automatic deletion policy. Please include emails retrieved from the official’s work email inbox, as well as the inboxes of other relevantn officials, in accordance with the European Ombudsman’s recommendation cited above.

6. In the same email of 28 February 2020 (document 32), a stakeholder claims to have “asked colleagues in music, publishing and CMO sectors to continue sending me any facts and figures they can find and will pass those on to you if and when I receive it”, but no such follow-up information is included in the documents disclosed. Please send me any documents, such as emails, sent to the recipient of the email of 28 February 2020 or any other recipient within DG Trade by the sender of the email of 28 February 2020, or any follow-up communication received from other stakeholders on the topic of the South African copyright bill received after the email of 28 February 2020, including any documents deemed “short-lived” or “not important”, such as emails, drafts or informal exchanges. Please include emails retrieved from the relevant officials' work email inboxes in accordance with the European Ombudsman’s recommendation cited above.

7. The initial response to my access to documents request does not include any documents after the letter of EU Ambassador to the Republic of South Africa Riina Kionka to Dr. Cassius Reginald Lubisi, Director-General in the Office of the South African President, of 20 March 2020, although my request explicitly included eventual responses to the letter or any other follow-up communication: “This request should therefore also contain short-lived information such as drafts, inter-agency communication, e-mails, text messages, memos, and follow-up communication, including responses to the letter of 20 March 2020.” Please include any documents succeeding the letter of 20 March 2020, including any documents deemed “short-lived” or “not important”, such as emails, drafts or informal exchanges. Please include emails retrieved from the relevant officials’ work email inboxes in accordance with the European Ombudsman’s recommendation cited above.

A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/en/request/eeas...

Yours faithfully,

Julia Reda

Dear Directorate General for Trade,

I refer to my confirmatory application of 19 June 2020. According to Article 8 (1) of Regulation 1049/2001, confirmatory are to be handled promptly, and access is to be granted within 15 working days. This deadline has passed, yet I have not received a response, not even an acknowledgement of receipt of my confirmatory application. Please respond to my confirmatory application promptly.

Yours sincerely,

Julia Reda

Dear Directorate General for Trade,

I refer to my confirmatory application of 19 June 2020. According to Article 8 (1) of Regulation 1049/2001, confirmatory are to be handled promptly, and access is to be granted within 15 working days. This deadline has passed, yet I have not received a response, not even an acknowledgement of receipt of my confirmatory application. Please respond to my confirmatory application promptly.

Yours faithfully,
Julia Reda

Dear DG Trade,

thank you for your response, I can confirm receipt of your response to my confirmatory application.

Yours faithfully,

Julia Reda