The right to create means very little without freedom of expression. South African legislation is now on the cusp of finally being brought into the digital age, kicking and screaming all the way. Conversations and debate surrounding the Copyright Amendment Bill have ironically invoked fear in those that it seeks to protect. As complex as the Bill may be, there has been a lack of understanding regarding its provisions.
Collections Management Organisations (CMOs) have lobbied furiously around provisions such as fair use and have done so to deflect away from the fact that the Bill will for the first time see CMOs become accountable for how they pay royalties to underpaid creators. The fear-mongering surrounding the Bill is unjustified – no piece of legislation is perfect but this Bill is far from the junk status the camp who stand against it would have us believe.
When legislation involves as many stakeholders as does this Bill, it’s difficult for parties that do not have shared material interests to be content. That said, the Bill makes a solid attempt at balancing all the interests of the various stakeholders, namely the disabled, educators, authors, producers, actors, musicians, filmmakers etc. Therefore, to classify the Bill as good or bad from any one particular sectoral viewpoint ignores that this is a Bill with many complex layers.
So why the controversy?
1. The payment of royalties where royalties are due
The payment of royalties is not a new nor foreign concept. What the Bill does is that it aims to regulate the way in which royalties are paid out. Why should one complain about the payment of perpetual royalties if middlemen or corporations are receiving perpetual profits from a work while backbone creators and contributors who have created the actual work receive a once-off payment?
If a work does not continue to generate a profit beyond that initially budgeted, then no royalty will need to be paid. The royalty provision in the Bill will be regulated by a written agreement between parties following a prescribed manner and form that must include: the rights and obligations of the contracting parties, the share of royalties, the method and period of payments and dispute settlement mechanisms in cases that the issues may arise.
Opposition to codifying the payment of royalties is support for a status quo that has benefited a few elite CMOs who want their cake while creators and contributors continue to pick up the crumbs. In a nutshell, the royalty sharing provision is good for creators of works as it ensures that they are adequately compensated every time their work generates a profit.
2. The reversion of assigned works
The reduced period of assignment that is in the Bill is a reversionary right, meaning that the ownership of works assigned by creators will revert to the original creator after a period of 25 years. This provision is not to be conflated with the provisions regarding commissioned work. If one commissions a work that is not a reversionary right, ownership of that work will be determined by agreement between the contracting parties. If a producer commissions a work for the film that they are making they can by contractual agreement become the owner of such a work.
3. Fair use is not free use
Much nonsense has been said about the fair use clause in the Bill. Fair use will not be a problem in South Africa in the same way it has not been a problem in jurisdictions such as South Korea and Singapore that have adopted it. There has been one case involving the defence of fair dealing under the current outdated Copyright Act, that of Moneyweb v Media 24, which borrowed the concept of fair use from international law to adequately define a defence for fair dealing.
Fair use is NOT free use. The provision is clear on the fact that any use which harms the ability of the original creator to generate commercial interest in the work is not fair use. CMOs have been the driving force behind the misinformation campaign against fair use, allowing them to distract musicians and creators from the bigger picture of the Bill that will regulate the manner in which they collect and pay royalties.
4. The change from the default commissioned works provision
Creators have been calling for more than a decade that the default position of “he who commissions owns” is morally bankrupt and anti-constitutional and therefore must be scrapped. The Bill makes a positive change to this default standard by requiring the issue of ownership in a commissioned work to be discussed upfront in the contractual agreement between parties.
This ensures that all parties are aware of who owns the copyright within a particular work. The amount of service work received will not be affected by this provision. Those who still need to commission works for purposes of newspaper articles, script writing etc will still commission those works, but the only difference now is that an agreement will have to be reached by the parties as to who owns the copyright in that work instead of the default being that the commissioner owns the work.
5. Sub-licensing is not a licensee going rogue
The sub-licence provision in the Bill makes it explicitly clear that such a sub-licence may only be granted for any act that falls within the terms of the licence. The licensee would have received permission from the copyright owner to carry out specific acts in relation to the original licence agreement. Where does the issue lie in the licensee entering into a further sub-licence agreement to help carry the burden of the load?
One important factor that may have slipped by many of those who have applied their minds to the issue is that this Bill will not become the law tomorrow should the president sign it. There is a process of subordinate legislation that still has to be undergone that will further flesh out the finer details of the provisions of the Bill. Such regulations will have to be crafted by industry experts whom we can trust to ensure that the protocols set an adequate minimum standard.
The review process began over a decade ago and following acrimonious debate we now have a Bill containing numerous rights for which artists have argued and fought in this period. There can be no turning back now. DM
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