Business Maverick

BUSINESS REFLECTION

After the Bell: SA’s new copyright law is neither copied nor right

After the Bell: SA’s new copyright law is neither copied nor right

In comes the government’s thumping great foot, which is going to endanger a prospering and exciting little sector of the SA economy.

South Africa has an extremely tortuous legislative process. Partly motivated by SA’s extraordinary constitutional settlement, the notion of a negotiated solution found its way into the spirit of SA’s legislative system. This notion is founded on the idea that for everything, or at least for most things, there is a rational solution. It’s noble but kinda naive.

Hence, the courts have taken the constitutional provisions requiring open consultation hearings about legislative changes very seriously. There is only one problem: listening.

Listening, it turns out, is much harder than most people might think. It’s such an automatic, instinctive process, we tend to take it for granted. But there is a huge difference between actually listening and just hearing. And if someone doesn’t want to hear something, well, turns out it helps to say it louder.

An excellent illustration of this is winding its way through Parliament at the moment, two related pieces of legislation called collectively the Copyright and Performers’ Bills, which are currently before the National Council of Provinces.

An absolutely enormous industry collective called the Copyright Coalition involving almost every important industry body affected by the legislation — 17 in total — has come out against huge swathes of the legislation.

The group includes the National Association of Broadcasters, the Publishers’ Association of SA, the two big music organisations Mpasa and Samro, and the International Federation of Film Producers’ Associations. Some smaller but critical organisations, like the Independent Black Filmmakers’ Collective, are part of the mix too.

This coalition has been campaigning against the legislation since its inception in 2017 in a very quiet, behind-the-scenes sort of way. I know this because, we, as a media body, have tried to get the organisation to comment on the legislation, which we know they hate, and they refused on the basis that they didn’t want to embarrass anyone. Such is our weird system.

Not that it made any difference — they were roundly ignored anyway. Not a single one of the group’s major suggestions has found its way into the legislation. However, the opposing group, ReCreate, which is in favour of the legislation and contains some Wits academics, was taken very seriously, even though it purported at one stage to act on behalf of SA’s universities when in fact it did not.

The problems with the legislation are rather simple. The government wants to try to protect the rights of local performers and artists. But it also wants to widen the scope of exceptions to foreign copyright to reduce the potential financial liability of locals. Right, so, nothing wrong with either of those things.

Royalties

But all of these things are a matter of degree; push the boundaries too far, and the spectre of unintended consequences gets larger. Don’t go far enough and you are protecting nobody. The rights of performers is a good example. The legislation prohibits local artists and actors from giving up royalty rights. Well, that’s not a bad thing, you might think.

But it turns out that many actors in films, for example, routinely give up their royalties in favour of upfront cash. And that’s an economically sensible thing to do, because only one movie in 10 makes money, so rather take the cash now than nothing later. By prohibiting local artists from giving up future royalties, the legislation is likely to backfire, because film producers just won’t make their movies in SA.

And because royalties now cannot be forgone, there has to be someone who monitors every recorded creative act that is monetised in any way in the future and which emanates from a local production. So, who is going to do that? Well, the legislation has a simple solution: as always, it lumps that not on itself but on production companies — backed by a huge fine and imprisonment threat. But pretty obviously, the administrative burden is gonna be huge.

And there is another revealing aspect of this: at what rate will these royalties be granted? Obviously, Tom Cruise is gonna get more than Tim Cohen — well, in most cases. The legislation doesn’t answer that, but it grants the minister of trade and industry the right to set the rates later. But how will that determination be made? Who knows. It’s just bizarre.

So, while the scope for foreign producers of local creative content is set very restrictively, the scope for local use of foreign content is set extremely widely. First, the legislation massively reduces the time period when copyright expires. Most countries set the period at 70 or 75 years after death. The legislation reduces that in SA to 25.

And there is more. Most places in the world allow something called “fair use”, or what the legislation calls “fair dealing”, which is in effect a list of exceptions to copyright. This means it’s not a prohibition of copyright to quote small parts of say, a dissertation or a thesis, although it would be copyright infringement to reproduce the entire thesis without permission.

Yet, the list of exceptions in the local legislation is extensive. “The Bills are so inconsistent with global norms and international treaties to which South Africa is or plans to become a signatory, that they will make the country a global outlier and no one will want to work in or with South Africa,” says Copyright Coalition member Jahmil XT Qubeka, who is deputy chair of the Independent Producers Organisation.

The problem is that the key to listening is that it requires empathy, and SA’s politicians just don’t believe that markets can be used to more or less resolve many of these issues on their own. Fundamentally, they believe they know better, and they have little or no empathy for the respective industries. So, in comes the government’s thumping great foot, which is going to endanger a prospering and exciting little sector of the SA economy. DM/BM

Gallery

Comments - Please in order to comment.

  • Adrian Galley says:

    It is disappointing when a journalist dabbles in the dubious practice of ‘churnalism’, uncritically regurgitating disinformation they are fed. The ‘coalition’ is cobbled together to preserve exploitative benefits they still enjoy under the existing apartheid era legislation. This is evident in the strawman fallacy employed to prop up the argument concerning royalty payments. “The legislation prohibits local artists and actors from giving up royalty rights.” The inference is that performers may not give up their royalties in “favour of upfront cash”. This is demonstrably untrue: While Section 8A(1) of the Copyright Amendment Bill grants a performer the right to a share in the royalty received by the copyright owner, it is explicitly “subject to the Performers Protection Act, 1967 (Act No. 11 1967)”. This is, of course, in keeping with the legal principle of ‘lex specialis’. The Performers’ Protection Amendment Bill clarifies that a ‘buyout’ option is, in fact, available. Among the aims of the Bill is “to provide for royalties or equitable remuneration to be payable… ”. Were one to miss this reference in the Preamble to fair and just compensation in lieu of royalties, the Bill employs the legislative equivalent of a day-glo marker; it goes on to use the specific phrase no fewer than 14 times. Of course the ‘coalition’ went about its subterfuge in a “very quiet, behind the scenes sort of way”; the blushes they sought to conceal were their own.

    • Bobby 10 says:

      “Proponents of the Bill label the copyright act as ‘apartheid era legislation’ simply because it was passed in 1978 and, of course, never before this process has it been suggested that the Copyright Act was in any way racially discriminatory but they are doing it for effect, clearly. If it was racially discriminatory then the copyright laws of a number of other jurisdictions which follow the British model are racially discriminatory and no one suggests that, ever!

      And so, therefore, I take a very dim view of people who play the race card or the ‘apartheid’ card for this type of effect. In essence they are acting, as far as I’m concerned, in a despicable manner by making light of actual racially discriminatory measures that existed in the past and caused people real pain and hardship”

      Professor Sadulla Karjiker, The Anton Mostert Chair of Intellectual Property Law, Stellenbosch University in his presentation to the Select Committee on Trade & Industry, Economic Development, Small Business Development, Tourism, Employment & Labour, 7th March 2023.

    • “Hi Adrian,

      Copyright law protects the exclusive rights and interests of ALL creative professionals and is a mutually exclusive issue from trade practices. Therefore, whether these practices are fair or exploitative is a non sequitur concerning copyright concerns.

      And yes, the bill, in its current form, DOES make it impossible for performers to waive their royalty rights because of section 8(1) read in conjunction with the contract override provision (section 39B). In its current draft, the bill does not state “to provide for royalties OR equitable remuneration to be payable… “.

      Section 8A(1): “A performer shall, subject to the Performers Protection Act, 1967 (Act No. 11 1967), have the right to share in the royalty received by the copyright owner for any of the acts contemplated in section 8.”

      Therefore, it is not a choice between royalties OR equitable remuneration – only royalties are contemplated. It is likely section 3A(3)(b)(i) in the PPAB that misleads you to believe that performers will have a choice between royalties OR equitable remuneration, but it does not work in that manner. “Subject to” does not mean the PPAB overrides the clauses in the CAB. It also does not mean you can import any language from the PPAB into the CAB. It merely refers to the PPA for the definition of “Performer” and other unrelated clauses.

      So unless/until the CAB explicitly provides for a choice between royalties or equitable remuneration, our performers will have no choice in the matter, which means they will no longer receive work in cases where royalties are not possible.”

      This is why we invite you to join the other performers in our “cobbled coalition” against this bill.

      • Adrian Galley says:

        Hi Nick
        I suggest you Google the term ‘lex specialis’ and then consider the accuracy of your claim “‘Subject to’ does not mean the PPAB overrides the clauses in the CAB.”

        • Hi Adrian,

          Thanks for the thoughtful response. We’re familiar with the principle, but because of the contract override provision in Section 39B, the Section 8A royalty right will not be affected by the referral to the Performers Protection Act.

          You may want to look at a new book on the topic “Copyright Reform or Reframe?” (Juta, 2023) and what the authors (all specialist IP lawyers) say on the topic at paras 9.2 and 34.9.2. It’s free to read.

  • andrew farrer says:

    well, no surprise here, little or no empathy and absolutley no brains

Please peer review 3 community comments before your comment can be posted

X

This article is free to read.

Sign up for free or sign in to continue reading.

Unlike our competitors, we don’t force you to pay to read the news but we do need your email address to make your experience better.


Nearly there! Create a password to finish signing up with us:

Please enter your password or get a sign in link if you’ve forgotten

Open Sesame! Thanks for signing up.

Become a Maverick Insider

This could have been a paywall

On another site this would have been a paywall. Maverick Insider keeps our content free for all.

Become an Insider
Daily Maverick Elections Toolbox

Download the Daily Maverick Elections Toolbox.

+ Your election day questions answered
+ What's different this election
+ Test yourself! Take the quiz