Copyright & Performers Protection Bills: sectoral impact briefing

Arts and Culture

16 May 2017
Chairperson: Mr J Mahlangu (ANC) (Acting)
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Meeting Summary

Department of Trade and Industry (DTI) on the sectoral impact of the Draft Copyright Bill and the Draft Performers Protection Bill

DTI gave the background to the development of the two bills and the objectives behind the amendments. They recommended that the Committee should take note that the bills did not intend to repeal any law relating to copyright and related rights. The Committee should confer with the Portfolio Committee on Communications regarding the issue of music (local content). The Committee should foster coordination of enforcement agencies to deal with piracy and counterfeiting and also take note of the Economic Study on the Contribution of Copyright-based Industries, the Regulatory Impact Assessment (RIA) and the Socio Economic Impact Assessment (SEIAS).

Department of Arts and Culture (DAC) on the sectoral impact of the Draft Copyright Bill and the Draft Performers Protection Bill

DAC said strong and effective copyright law can promote and encourage investment and economic growth in the creative industries. From the DAC’s perspective, the key issues addressed are access to copyright work, extension of protection of performers’ moral and economic rights, written contractual agreements and the establishment of the Intellectual Property Tribunal. It also included Technological Protection Measures, Collecting Management Organisations (CMOs), and promotion of local content and the protection of copyright in visual arts work. Issues which required further consideration and debate are local content, public versus private use, Protection Amendment Bill division of rights and Intellectual Property ownership. The challenge faced by many local creators and producers was lack of financial resources to participate meaningfully in the value chain, especially in quality music production and the distribution of content production. South Africa’s failure to link rights ownership to rights exploitation inevitably resulted in financial leakages and defeated the notion of local content.

Since 2013, there had been continuous growth in South Africa in the areas of audio and audio-visual production because of the migration to digital broadcasting. This translated into a significantly higher demand for content. DTI sets a new economic trajectory for the African audio-visual sector which required major investments in both technology and the creation of local content as well as coupled with a policy that supported content ownership by local producers.

Of major concern to the DAC is the issue of limitations and exceptions for libraries and archives and persons with disabilities in the Copyright Amendment Bill. DAC regarded IP as a cross-cutting issue that impacted largely on arts and culture. This policy should not just understand IP in the narrow confines of copyright regulation but should also understand that culture has a dual character of being an economic commodity as well as a public good and social asset that defined the cultural expression of being South African. DAC believed that the copyright legislation should be part of investment measures to support the growth of South African cultural industries. The use of copyrights to achieve developmental goals should be at the centre of the legislation. IP should be an asset that was safeguarded to largely benefit local people who are empowered to fully exploit these assets for economic, social and cultural benefit, and whose rights are effectively protected.

The Committee wanted to know whether all artists have knowledge of or are registered with the collecting agencies and if the collecting agencies are monitored. They asked what percentage do the artist receive and how it was paid. They also wanted clarity about the percentage of local content that the Independent Communications Authority (ICASA) allowed for.

Members asked how the amended bills will ensure that it was the artist who benefited more than the recording company, and whether South Africa’s bills related to international best practice. They also asked if the collection agency will be state-owned or privately owned, and what, if any, provisions are being made for deceased artists. In addition, Members wanted to know how the piracy issue was currently being enforced and also why 16 years had been allowed to pass since a task team was appointed in 2001 to review the provisions of the Acts. 

Meeting report

The Chairperson was unwell Mr J Mahlangu (ANC) was elected Acting Chairperson.

Mr G Grootboom (DA) raised the issue of the community conversations organised by the Department of Arts and Culture (DAC). What is the aim of the meetings, what are the topics for discussion, and who are the target markets?

The Acting Chairperson noted that these questions have been asked at previous meetings by the Chairperson. He suggested that the Committee invited people who are familiar with the particular subject matter to inform them and thereby bringing greater clarity to the process. If DAC would inform the Committee about the community conversations in advance, some Members would find it useful to attend to get a feel about what was happening and what communities wanted.

Department of Trade and Industry (DTI) on the sectoral impact of the Draft Copyright Bill and the Draft Performers Protection Bill

Ms Meshendri Padayachy: Deputy Director: Intellectual Property, DTI, gave the background to the development of the two bills and the objectives behind the amendments. The issues to be introduced into the Copyright Amendment Bill are the WIPO Copyright Treaty (WCT), films, television, radio shows and photographs, the introduction of a private copy levy, the collection of royalties/royalty management and reciprocity on needle time. It specified that collecting societies to collect only for their registered members and the development also included exceptions and limitations, the Marrakesh Treaty and minimum contractual terms. All collecting societies must be regulated by the Companies and Intellectual Property Commission (CIPC), the resale of original works of art, local content quotas, and orphan works exceptions and limitations and fair use of copyright work. Issues to be introduced into the Performers Protection Amendment Bill included the Beijing Treaty on audio visual performances and the WIPO Performances and Phonograms Treaty (WPPT).

Intellectual Property (IP) including copyright was transversal, i.e. ICT, business, creative industries, trade and science. The legislation of other state departments that may be impacted on are the National Development Plan (NDP), the Legal Deposit Act, the South African Library for the Blind, the National Archives and Records Service of South Africa Act, the revised White Paper on Arts, Culture and Heritage (ACH) and the Electronic Communications Act.

International treaties affecting the bills included the Trade Related Aspects of Intellectual Property (TRIPS Agreement) of which South Africa was a member, WPPT and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of which South Africa was not a member. Other treaties affecting the bills are the Beijing Treaty for Audio Visual Performances (BTAP) – South Africa is not a member; the WCT, the Marrakesh Treaty of which South Africa was not a member and the Berne Convention where South Africa was a member.

The DTI’s recommendations are the following:

-the Committee should take note that the Bills did not intend to repeal any law relating to copyright and related rights;

-the Committee should confer with the Portfolio Committee on Communications regarding the issue of music (local content)

-the Committee should foster coordination of enforcement agencies to deal with piracy and counterfeiting;

-the Committee should take note of the Economic Study on the Contribution of Copyright-based Industries, the Regulatory Impact Assessment (RIA) and the Socio Economic Impact Assessment (SEIAS).

Department of Arts and Culture (DAC) on the sectoral impact of the Draft Copyright Bill and the Draft Performers Protection Bill

Ms Monica Newton, Deputy Director-General: Arts and Culture Promotion and Development, DAC, said the Department was very pleased with the planned amendments and that it had also been involved as a strategic partner. Strong and effective copyright law can promote and encourage investment and economic growth in the creative industries.

She listed the sector challenges and said the legislative review process has been a crucial tool in promoting innovation, development and productivity in South Africa’s creative industries. She addressed the relevance of the amended Bills in the context of international policies and standards.

From the DAC’s perspective, the key issues addressed are access to copyright work, extension of protection of performers’ moral and economic rights, written contractual agreements and the establishment of the Intellectual Property Tribunal. It also included Technological Protection Measures, Collecting Management Organisations (CMOs), and promotion of local content and the protection of copyright in visual arts work.

Issues which required further consideration and debate are:

Local content: The approved Independent Communications Authority of South Africa (ICASA) local content quotas differ with those proposed in the Copyright Amendment Bill, thus causing policy tension. The concerned parties (the DAC, the department of Communications (DOC) and the DTI) will need to consider this further.

Public versus Private Use: DAC proposed that the law on copyright and related rights should be adapted in such a manner that it will respond adequately to the economic realities and this could be done, for example, by introducing a private copying surcharge as part of the limitations and exceptions.

Protection Amendment Bill division of rights: DAC believed that royalty share between producers of phonograph and performers should be informed by equity and fairness and therefore proposes a split that favoured performers over producers.

Intellectual Property ownership: the challenge faced by many local creators and producers was lack of financial resources to participate meaningfully in the value chain, especially in quality music production and the distribution of content production. South Africa’s failure to link rights ownership to rights exploitation inevitably resulted in financial leakages and defeated the notion of local content.

Since 2013, there had been continuous growth in South Africa in the areas of audio and audio-visual production because of the migration to digital broadcasting. This translated into a significantly higher demand for content. DTI sets a new economic trajectory for the African audio-visual sector which required major investments in both technology and the creation of local content as well as coupled with a policy that supported content ownership by local producers.

Of major concern to the DAC is the issue of limitations and exceptions for libraries and archives and persons with disabilities in the Copyright Amendment Bill:

-Libraries and archives play a more crucial role than ever before, and current copyright law has severely hampered the services that libraries and archives are able to provide;

-There was no provision in the current copyright law for persons with disabilities, which means that copyright permission had to be sought every time a blind person needed information to be converted into Braille or other accessible formats, or a more visual format for deaf people.

-Fair Use provisions needed to be open-ended rather than itemising specific uses of material;

-The provisions in the Copyright Amendment Bill for orphan works are problematic and impractical. Rather than have orphan works controlled indefinitely by the State, it would be best to deal with them under Fair Use provisions.

- The new Bill needed to support provisions for digitisation, preservation and digital curation for libraries and archives and for legal deposit. Many library projects have been hampered by restrictive copyright laws.

In conclusion, DAC regarded IP as a cross-cutting issue that impacted largely on arts and culture. This policy should not just understand IP in the narrow confines of copyright regulation but should also understand that culture has a dual character of being an economic commodity as well as a public good and social asset that defined the cultural expression of being South African. DAC believed that the copyright legislation should be part of investment measures to support the growth of South African cultural industries. The use of copyrights to achieve developmental goals should be at the centre of the legislation. This therefore raised the importance of balancing the needs of content creators and of content using the applicable limitations and exceptions as informed by international frameworks. IP should be an asset that was safeguarded to largely benefit local people who are empowered to fully exploit these assets for economic, social and cultural benefit, and whose rights are effectively protected.

Discussion

Mr Grootboom asked whether all artists have knowledge of or are registered with the collecting agencies and if the collecting agencies are monitored. What percentage do the artists’ receive, and how is this paid? He also asked for clarity about the percentage of local content that ICASA allowed for.

Mr T Makondo (ANC) said he wanted to focus on artists as the terms relates to the Committee’s portfolio. The new bills will cover a range of works and DTI mentioned creating a single collection society, but he wanted to know how many currently existed. The problem was not with the collecting society but with the Act itself which took away the artist’s ownership. How is a single collection agency going to deal with that?

The Acting Chairperson noted that the Amendment Bills have already been tabled, so presumably the arts community would be invited for a hearing. The Committee needed to be a part of that as well, because a myriad of concerns have been raised about how artists have been treated. He asked if, in the run-up to the crafting of the bill, DTI consulted any arts organisations and, if so, which ones. He asked how the amended bills will ensure that it was the artist who benefited more than the recording company, and whether South Africa’s bills related to international best practice. Will the collection agency be state-owned or privately owned, and what, if any, provisions are being made for deceased artists? He asked how the sale of an art work from one owner to another will be monitored and how the piracy issue is currently being enforced.

Ms X Tom (ANC) asked for more clarity on the legislation that might be affected by the two bills and also why 16 years had been allowed to pass since a task team was appointed in 2001 to review the provisions of the Acts.

Ms Padayachy informed the Committee that the South African Music Performance Rights Association (SAMPRA), the South African Music Rights Organisation (SAMRO) and the African Cultural Organisation of South Africa (ACOSA) were currently in existence. Problems began in 2011 because of non-payments to artists. “Copyright” was an umbrella concept, so it included collection is for all three kinds of rights. DTI was also unable to track what was happening to funds, so it wanted to strengthen the regulations. The collection agencies have to provide a distribution plan and a list of the artists who are on their playlists. There needed to be a 50% split between the performer and the recording company. From 24 May 2017 the DTI’s new Deputy Minister will be visiting all provinces to spread awareness of the bills. The Act puts a cap on the expenditure of collection agencies and the rest of the funds have to be distributed. The biggest problem currently was needle time, because the collection agencies claim there was insufficient information from the broadcasters and payment ended up not going to the artists concerned.

The introduction of new collection agencies, with particular relevance to resale rights, was going to be based on the current model in the United Kingdom. Payment will be a fixed rate and not based on a sliding scale.

DTI was trying to find a way to first force the public broadcaster to reimburse correctly and fairly, and then get the broadcasters to follow. More effective management is essential, and the law needed to be very strict. There are still only three agencies or organisations currently, although actors and other performers are working on the development of a properly regulated organisation.

In crafting the Amendment Bills, the DTI considered 122 written submissions from various visual artworks and creative industries and the Committee was welcome to view all submissions.

The Amended Bills will protect the economic rights of performers, particularly regarding digital treaties, where rights and royalties will be introduced. For example, digital streaming will now be covered and the bill will create more revenue streams for performers. The DTI researched the ways in which countries like Australia and the United Kingdom regulated this industry. Collection agencies are currently privately owned and DTI would like to give the State more power over them, such as allowing access to financial planning and administrative records. Copyright protection currently covers the artist’s lifetime plus a further fifty years after death. The new resale right will benefit the beneficiaries of a deceased artist, in a way that was not happening now.

Ms Padayachy said that DTI was aware that when it came to piracy, the South African Police Services (SAPS) are unable to help. Piracy required a large systemic chance to current legislation. People found guilty of piracy now suffered increased penalties and there was also an increase in the length of a prison sentence. She agreed that it had taken a long time to draft the amended Bills, which was partly due to South Africa not having a National Intellectual Property Policy in place. DTI was also starting to deal with the issue of the standardisation of contracts for performers which required working with the Department of Labour and other task teams established by the President.

Funds for development are always a primary concern and there will always be questions about the efficacy of monitoring. The National Skills Fund (NSF) enabled training across all disciplines and other elements, e.g. economics and there had been progress from the music industry task team.

Mr Makondo said that there had been no satisfactory response as to how the amended bills are going to help the artists. How are they going to ensure that the artist actually receives the money?

The Acting Chairperson commented that, even if the amendments did protect the artists, there was still the issue of cost. The law might be on the artist’s side but it will cost too much money to litigate. If the laws failed in what they hope to achieve, the collection agencies and the record labels still get a big boost but not the artists themselves.

Ms Padayachy replied that the problem that had been identified with authors was the publishers. The Dramatic, Artistic and Literary Rights Organisation (DALRO) was an agency and was also part of SAMRO, but they claimed they are not a collection agency and they are not subject to the same rules as a collection agency. The issue of resale rights was very complicated because art can escalate so much in value, but this was part of what the DTI wanted to try and manage. The Copyright Act was not about the collection of royalties. IP was very expensive to defend and DTI wanted to amend the copyright tribunal in order to make access available to everyone. In an effort to increase the limitations of disputes, tribunals will give judgement as a first resort.

The Acting Chairperson suggested it might be a good idea to get the bills up and running and then identify the gaps later. Colleagues in the Portfolio Committee on Trade and Industry need to work faster, because the absence of proper mechanics around these matters is causing a lot of pain. He also requested that the DTI provide the Committee with the dates of the upcoming road show.

The DTI delegation left the meeting at this point.

Mr Grootboom repeated the questions he raised earlier about the community conversations, and also asked for clarity on the funding situation with regard to the Market Theatre, which has since been allocated to the Windybrow project.

Ms Tom asked what progress has been made with the Heroes’ Acre project which was part of the Liberation Heritage Route infrastructure programme.

Ms Newton replied that more than R3 million had been allocated to the Heroes’ Acre project and DAC was awaiting confirmation of the land allocation from the new mayor. R21.8 million has been allocated to the completion of the amphitheatre at Ngeni.

Ms S Tsoleli (ANC) asked why DAC had not been involved in the preparation for the World Choir Games especially since they are being hosted in South Africa for the first time in 2018. She was under the impression that Gauteng province had made R30 million available and the Departments of Tourism and Home Affairs were also on board, but that the major problem was that DAC did not want to be involved.

Ms Newton responded and said that the Market Theatre and Windybrow have been incorporated into a single function and that the funding has followed the merger. Regarding the 2018 World Choir Games, DAC was unable to find the necessary funds (approximately R15 million) from its budget allocation. It approached the National Treasury but was turned down.

The Acting Chairperson pointed out that music played a huge role in South Africa’s liberation movement and there was nothing that acknowledged or celebrated its value.

Ms Newton replied that the purpose of community conversations was to create dialogue between people across social and economic divisions and to bring them together on a conceptual level. The information gleaned from these sessions became the bedrock for engagement with other departments in terms of developing programmes and initiatives. Information was also used towards developing a social compact or agreement. It was a definite requirement that the audiences are very diverse. The conversations are held directly with provinces but also with communities where some sort of social cohesion was indicated.

Mr Grootboom asked what kind of social vision was being envisaged. One of the core mandates of DAC was to ensure that dialogue between communities was encouraged, specifically to bring people together despite racial differences.

Ms Newton replied that part of the design of the community dialogue programme was that the same groups are not involved all the time. The aim was to involve people who have not participated before or who have not had the opportunity to mix before. It can happen that a specific location created difficulty, but the explicit intention was to get people with different views and different learning experiences together to find solutions. It was a managed process in that facilitators are involved who help to create the tools necessary for productive discussion and a constructive framework for dialogue.

Adoption of minutes

Minutes dated 14 March 2017 (with amendments), 2 May 2017, 4 May 2017 and 9 May 2017 were adopted. The consideration and adoption of the oversight report and the Budget Vote report were deferred until the next meeting.

The meeting was adjourned.

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