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