The Portfolio Committee held public hearings for those who had made written submissions on the Performers’ Protection Amendment Bill. As the Committee was keen on hearing the voices of performers, a special call had been put out for performers to attend the hearings to tell their stories and to indicate what protection they, as performers, required.
A common theme in the submissions was that actors were not protected by the Labour Relations Act and so there was no control over their working environment, which was sometimes hazardous, even to the extent of an actor falling to his death at a shoot. The Committee was surprised to learn that sometimes actors were considered employees, but without benefits, but mostly actors were seen as freelance agents with no work security. Actors attested to the fact that if they made any demands on set, they were quickly replaced by other actors.
The question of contracts and whether the Bill could legislate a common standardised contract was another common theme but most presenters, recognising the diverse factors relating to actors and acting, determined that minimum standards would work better than a restrictive contract.
The first organisation to submit a submission was the Personal Managers’ Association which managed contracts for performers. The Association called for the establishment of an independent non-profit collecting society through a transparent process of broad stakeholder engagement. the society would have a mandate to monitor, collect and distribute payments such as royalties for the sale, re-sale, rental and licensing of audio-visual fixations. The collecting society needed to be affiliated to an internationally-recognized, leading world collecting society organization. The submission by the Association was rather general, as if the hearing was a discussion platform prior to a decision to formulate a Bill, instead of a part of the process of refining a Bill. It appeared that the Association would be more comfortable giving specific input into at the level of regulations.
Members asked for clarity on the recommendation that foreign films that worked in SA should ensure local content in terms of actors. Did that happen elsewhere in the world? Would it not have contractual problems? Would questions not arise in terms of which actor? Some Members were confused as to whether the Association was proposing changes to the Bill or supporting it.
The South African Guild of Actors stated that it was up to the Committee to guarantee that the rights granted to actors in the Beijing Treat were not diluted in the national legislation. In the absence of collective bargaining rights, collective rights management was essential. In the production and distribution of audio-visual content, the right of title passed along the value chain, so the transfer of exclusive rights was essential. The Guild appealed for statutory amendments that would enable a dedicated system for the accurate monitoring, tracking and reporting of all actors’ work in audio-visual.
Members asked whether individual performers were supportive of being part of a collective in respect of standard contracts. How could contracts be strengthened to avoid exploitation?
The International Federation of Film Producers Association took a pragmatic approach to actors’ rights. If screen actors did not enjoy the protection of a clearly laid out legal framework, it was more difficult for the producers and performers to negotiate together in order to develop workable industry agreements. The Federation agreed unreservedly with the government’s objective to implement the international accord into South African law. The Federation also pointed out that Film was an unusually expensive piece of cultural work. Some costs were incurred in attempting to bring something to the market place and those costs were not recoverable. One always took a bet on scripts, rights to books, hiring a screenwriter and going to drafts; all of which incurred costs before a single shot was filmed. The Federation believed that if actors could not get together to establish collective bargaining, then the labour laws had to be adapted. Collective agreements were necessary as actors were not as strong as others in the industry. It had to be remembered, however, that films had a propensity to market failure.
The Committee was addressed, separately, by two successful South African actresses who highlighted their frustration with the system of contracting in South Africa and the enormous insecurity and uncertainty under which they lived. Both actors found that the lump sum paid for the performance was often inadequate when one considered the mileage that broadcasters got out of some of the footage. One actor called for full recognition of broadcasting rights across all channels and harsh consequences for all those who contravened the legislation. She called on SA to become a signatory to the Beijing Treaty. The second actor focused on the exploitation of her image and the way in which producers made money through product placement that restricted actors from advertising for, or representing, rival companies, even though the actor herself had not received any benefits from using the products in a show. She asked that the law be made retrospective by at least ten to twenty years and she requested that the residuals be paid automatically. She was not asking for special treatment, but was asking for equity.
Members of the Committee were moved by the stories of the actors and asked for as much information as they could give in terms of what they wanted or needed in the legislation to improve their lives.
The South African Music Rights Organisation was concerned that copyright issues were not taken seriously. Restaurants could not open without a liquor licence and food licences, but no one worried about ensuring that the restaurant copyright licences. SAMRO welcomed the protection of performers’ moral rights and economic rights, but it was not clear what rights were protected, other than copyright, after death. The written agreement of 25 years was fine but it begged the question of what would happen in a case where the performer was unhappy with the contract and wanted to terminate the contract before the 25 years were up. SAMRO thought managing equitable renumeration for performers through legislation might be challenging.
Members believed that SAMRO’s reference to collecting management agencies was important. How did one ensure unity when one had to allow people freedom of association?
The Chairperson indicated that the Committee would have to hold joint meetings with other Portfolio Committees, including Communications, Labour and Art and Culture, to address some of the cross-cutting issues. The public hearings on the Performers’ Protection Amendment Bill would continue the following day.
The Chairperson noted that PASA had been delayed and would arrive later. She asked presenters not to overstep the allocated time. The Chairperson asked Mr D Mahlobo to take the Chair for a short while.
Personal Managers’ Association submission
Mr Andre Dellow, co-Chairperson of the Personal Managers’ Association (PMA), made the submission on behalf of 3000 performers. He stated that for 14 years PMA had asked M-Net for a meeting regarding contracts but television performers were not recognised in terms of the Performers’ Act.
Mr Dellow declared that the deficiencies in South African legislation were prejudicial to South African performers as the economic, moral and exclusive embedded rights of performers in audio-visual fixations were not recognized in local legislation. Performers would, almost inevitably, have a weaker voice in any negotiations, even in cases where a top actor, perfect for the role and with a valuable audience following was being considered. Most contracts required the performers to waive all their rights embedded in the audio-visual work. He gave examples of good South African actors who had not earned fair salaries and royalties. Henry Cele had died a poor man in KwaMashu but, had he earned royalties from Shaka Zulu, he would have earned R25 million from one production alone.
The PMA called for the establishment of an independent non-profit collecting society through a transparent process of broad stakeholder engagement. The society would have a mandate to monitor, collect and distribute payments such as royalties for the sale, re-sale, rental and licensing of audio-visual fixations. The collecting society needed to be affiliated to an internationally recognized leading world collecting society organization as international society affiliation would enable reciprocal agreements for SA actors to claim for international exploitation in accordance with worldwide accepted standards.
PMA called on the Department of Labour, in consultation with all industry stakeholders, to accurately define the labour status of performers as Labour defined performers as employees while SARS defined them as independent contractors.
The Acting Chairperson suggested that the Committee would hear additional submissions before asking questions as there might be cross-cutting issues. After some discussion with Members, it was decided that questions would be asked after each submission so that issues did not get lost.
The Chairperson took the Chair. Ideally PMA would have come at the end as the presenters were not actually performers themselves. They managed performers.
Mr A Williams (ANC) welcomed the submission. What did PMA mean about the Bill being amended? There was a Bill before the Committee. He asked that the organisation specify which clauses needed amendment.
Mr G Cachalia (DA) noted that remuneration was covered in the Copyright Bill, as was fair use and fair dealing which covered a plethora of issues and seemed to be duplication. He asked about retrospective payments because there was a presumption against retrospectivity to be dealt with. The Beijing and World Intellectual Property Organization (WIPO) treaties had been raised but SA was not a signatory to those treaties. How could those principles then be adopted? It might be a chicken and egg situation. He would have thought that proper remuneration would be covered by time-honoured contracts. He understood that contracts had to be fair and there had to be dispute resolution, but all of that should not override the sanctity of contract. There were the overriding issues of rights and fixation and the question of who was considered a performer. Former President Zuma was a performer but should he be paid for every performance? Those questions had to be debated.
The Chairperson noted, with due respect, that the former president had not been in the artistic field. The Committee had to be substantive as it was an important matter. She reminded everyone that the Bill was before them only because the former President had championed the Bill, no matter what other issues there might be.
Ms E Ntlangwini asked the Chairperson to remind the public of rules of Committee meetings. There should be no clapping of hands. She asked for clarity from PMA. Which clauses did the organisation want amended? She took the recommendation of a regulatory body but wanted to know who would regulate that body, and where would funds come from, etc. Money was being looted out of the country. Was the organisation saying that contractors were not paying taxes and were leaving the country with the money, which amounted to illicit cash flows in her book?
Mr Macpherson was interested in the recommendation that foreign films that chose to shoot in SA had to ensure local content in terms of actors. Did that happen elsewhere in the world? Would it not have contractual problems? Would questions not arise in terms of which actor? He asked the Deputy Director-General for the Consumer and Corporate Regulation Division of DTI, Dr Evelyn Masotja, for a matrix between the two Bills, the Copyright Amendment Bill and the Performers’ Protection Amendment Bill, so that there was a cross-reference against the Copyright Bill to ensure there were no duplications, etc.
Mr Mahlobo thanked the PMA for being succinct, but it was important to make specific recommendations regarding specific clauses. It was not a question of whether there would be a Bill. There was going to be a Bill. That was a given and everyone had to move with the new Bill. What was the recommendation regarding the right to make performances available on YouTube? The problem was that internet platforms were actually bottomless platforms. Lock and key did not work so how would one regulate that?
While there were issues of a fair market society. That was an ideological issue but the legal issue was contract law. What was PMA’s suggestions because some of the contracts ended up exploiting a vulnerable person? How did one protect performers? Should there be standard contracts? Should there be instances of special circumstances? Too many performers had been abused and exploited and perished in poverty.
What was PMA’s position regarding retrospectivity? He knew that people would hide behind contracts. It was not an easy thing, but it was a moral issue. He asked about the organisation’s financial analysis of what actors should earn. What was the source etc, and how had they arrived at the figures? Who was the source? The Committee did not want to use unreliable data. Was it credible? What was the quantum of input and output of costs? What was the source of their figures? Was there any possibility of an intervention on behalf of Cele as Shaka Zulu was still being played around the world? Was there any possibility of collecting fees? Could there be rational and cogent exceptions?
Ms P Mantashe (ANC) was concerned about exploitation in respect of the contracts. She did not think that Parliament could regulate that. But perhaps there could be a standard or pro forma contract in the Regulations. Some performers were not literate. She asked the DDG of DTI if there could not be a standard contract that could be used to protect the illiterate and recreate balance, take action and defend.
The Chairperson explained, in response to a written request sent to her by an actor, that when Parliament advertised, Parliament also tried to help those who required help to make submissions, but Parliament did not finance the trip to Cape Town, except when the person’s income was so low that the witness funds could be used. She would give the actor a slot to speak briefly because the Bill was about performers but, in future, the actor should use the email.
Ms C Theko (ANC) said that she supported Mr Williams in his request that PMA provide specific input on each clause of the Bill so that the Committee could do its work.
Response by Personal Managers’ Association
Mr Dellow clarified that the last slide was a quotation and did not mean to say change the Bill.
Mr Mahlobo added a question about the collecting society proposed by PMA. Why only one society? What about transformation issues and the right to association which was a fundamental constitutional matter?
Mr Dellow believed that there needed to research and consult in respect of a collective management organisation. PMA understood that South Africa had to have a collective society to participate in WIPO and the Beijing Treaty so that needed to be researched and set up first.
Tarryn Edwards, co-Chair of PMA responded to the question of retrospective payments. PMA wanted to be part of the process. The organisation was not sure how it would work because there had never been a collective society for actors in the country. In order to answer the question of retrospectivity, PMA would need to know how the collections would work. Perhaps if the Bill were accepted, residuals could start from the point that the Bill was accepted, and royalties be paid to performers, even for work produced prior to the date of the Bill. It had to start somewhere, but she was not sure about how far back retrospectivity could go. The organisation did not have answers but everyone should be given a chance to say what one thought and her organisation would love to be part of that process. She added that PMA used the terms performers and actors interchangeably.
Mr Dellow stated that performers were independent contractors and paid 25% tax as such but he could not say if international producers paid taxes.
Ms Edwards informed the Committee that there was no clear definition in the Labour Relations Act of an actor or performer. When an actor had a full year contract, the actor was seen as an employee but received no benefits. If a performer went into a studio and did a voice-over, then the performer was contractual and SARS also the actor saw as a contractual person. The status of the performer in the eyes of Labour and the SA Revenue Services was fluid and contributed to the instability in the lives of performers.
Lyn Higgins, Director of Finance, spoke about independent performers and the contracts signed between the performer and the producer for television or film. At that time a standard buy-out contract was in place for all, except for repeat fees that were paid on some channels. For example, an actor was paid a fee for a performance in a ‘soapie’. The actor gave away her rights so that she could perform that day. The producer had a separate contract with the channel or broadcaster which paid the producer directly. Performers were paid by the producer. That was the only money that an actor received. The actor worked and earned for that single performance but the producer made additional money putting that person on YouTube and other platforms, but performers were never paid for appearing on those channels.
The Chairperson noted that YouTube had been a figment of imagination in 1967 when the original Bill was drafted.
Ms Edwards responded to questions on foreign films and shooting in the country, especially Cape Town. In certain countries a percentage of local actors had to be in the production and part of the crew to ensure that the local industry benefitted. International films being filmed in the country provided a great opportunity for South Africans, and the actors loved the opportunities and learnt from them. It was becoming a major business with huge studios in Cape Town and others being built in Durban and the industry need to make sure that SA artists and crew got a foot in the door, and not just as an extra or background artist. Everyone should benefit because there was incredible talent in the country.
Ms Theko noted the confusion regarding the definition of a performer in respect of the Department of Labour and SARS. The Committee needed legal advice as well as input from SARS and Department of Labour on that point.
Ms Ntlangwini said her question on the regulatory body had not been answered. The Committee needed to ask SARS whether the international producers, and even South African artists, paid tax.
Mr Cachalia noted that it was an important debate. He stated that often the legislators were forced to look at retrospective redress instead of looking forward. One created a minefield of difficult law and constitutional challenges and bogged the process down. If one looked forward, looking at both actors and the film and television industry, there had to be a meeting of minds as one needed both the performers and the industry. It would not help to kill off the industry with demands for retrospective payments. One should be wary of that. Likewise, with foreign film makers coming into the country, if there was legislation determining how many local people had to be employed in the production, people would go elsewhere. South Africa had to be careful that people did not vote with their feet and go elsewhere as everyone would lose out.
Mr Cachalia wanted to give PMA some blue sky issues to consider when looking forward. Maybe scrap the Department of Arts and Culture and move to the Department of Tourism. Maybe consider artists as entrepreneurs and SMME’s and provide tax breaks. Make open public spaces, of which there were many, available to artists and cut costs for artists in terms of utilities. Forget about the backward-looking retrospective redress that hamstrung everyone and got no one anywhere in particular. The Committee was bedevilled with the issue of retrospectivity instead of being forward-looking.
The Chairperson asked what the Committee was bedevilled with and, in response to Mr Cachalia’s reiteration of his point, she stated she would respond to that point in the House.
Mr Mahlobo said to Mr Cachalia, with due respect, that the Arts and Culture story was not acceptable. The labour unions had won the right to eight hours of work because people needed eight hours of work, eight hours of sleep, and eight hours of leisure.
The question of rates was an issue. There was probably a need for standard rates. Those who worked in government knew that there were standard rates for various kinds of professions according to experience and expertise. That was an important issue that should be considered in an international context. Africans were paid less, both at home and abroad. There had to be a standard form or pro forma of a contract because that was where people were most vulnerable. The people who had the lowest socio-economic status were not to blame for their situation. Apartheid had put them there. The Constitution said that the injustices of the past had to be acknowledged and there had to be redress for the past abuses. Retrospectivity had to be there but with the balance of rationality.
There was an issue of labour. An employee and a contractor could not be used interchangeably. How would performers be protected if they were independent contractors? What happened when performers got sick. There were questions of workplace hazards, working like slaves etc. He was concerned about issues of welfare and he worried about that lonely walk before actors passed on.
Mr Williams asked a question of clarity. As he understood it, a singer would get recorded and the singer would get royalties every time that recording was played anywhere in the world. An actor acted and was paid up front but did not get paid for repeat performances. Could the presenters make it simpler? Were they looking at royalties for performers/actors?
The Chairperson was concerned about time management as she wanted to be finished by 21:30 and arranged to take time off the breaks.
Mr Mahlobo informed the Chairperson that Mr George, the Chairperson of FEDUSA had just been awarded a doctorate. The Chairperson acknowledged that she had not yet finished her doctorate. A doctorate was valuable because it contributed knowledge to the country. She said that astronomy was born in Africa, as was Mathematics. Her forebears had arrived with the French Huguenots so she was proud to call herself an African. Performers or actors reminded her that no matter the diverse backgrounds of people, everyone shared their humanity.
Mr Mahlobo noted that Mr Dellow did not want the Bill changed but requested that he submit any recommendations in writing.
Mr Cachalia pointed out, in the light of Mr Mahlobo’s comments that labour unions had reduced working hours to eight hours, that the Committee would be working a 13-hour day that day.
The Chairperson noted that Members were not workers and did not fall under the labour law. Public representatives had a vocation, not a job.
Ms Edwards suggested that standard rates would not work because of the different roles available to actors. But minimum guidelines would be good. She stated that her organisation wanted to be part of the discussions about the Bill. The actors should be there but they were too scared to be there. They could not afford to lose their jobs because they were seen to be speaking out. The balance of power lay in the hands of the broadcaster. The producer, too, was in the hands of the broadcaster. Standard contracts were crucial because at the moment the producer simply changed the terms of the ‘SABC’ contract, which was the one version was generally used. She reiterated that she wanted to be part of the process and to be able to give input because she could give many examples. PMA had started in 1980 after the advent of television because of all the issues that had arisen and had proved challenging to performers.
Ms Higgins explained that an actor in a South African production earned between R1 000 and R5 000 for a day and paid 25% tax. The actor could get paid for odd days or could get a picture deal. SABC or M-Net showed the production and then sold it to another broadcaster, e.g. ShowMax ex-Pat where one could pay $9 a month and could watch the programme in Australia.
The Chairperson was glad that PMA had been scheduled first as the Committee had learnt some things from them. She invited the organisation to attend future hearings.
Ms Mantashe said that she had been provoked by the input by Mr Cachalia and his organisation’s position of being anti-retrospective concerning performers. The ANC was representative of the poor people and wished that performers could get retrospective payment. The ANC could not accept a Bill without retrospectivity. the ANC would fight with its body and soul anyone who was against that view.
The Chairperson noted that all Members of the Committee represented a party, but ultimately the Committee would take a Committee position. She thanked the presenters but had to move on.
South African Guild of Actors
Mvelisi Mvandaba, Administrator with the South African Guild of Actors (SAGA) and a professional actor, responded to the Chairperson’s question about his dress saying that he was a Xhosa, wearing the regal attire of the Xhosa as his heritage had royal blood within it.
Dr Denis George, the Secretary-General from FEDUSA informed the Committee that SAGA was a member of FEDUSA. The Bill reflected on performers’ protection and the union was there to provide support to the Guild of Actors. The Chairperson of SAGA, Jack Devnarain, was the spokesperson. The oral submission began with a video.
Mr Devnarain presented a case in support of the Performers’ Protection Bill. Actors generated a primary income. They attended many auditions to get roles. Their income was derived from the performance fees but the production would earn royalties around the world for ongoing periods. There were standard performance contracts but they were not fair contracts. SAGA supported standard contracts on condition that all parties were protected by the contracts. Currently contracts did not have an equitable balance of power. It was a case of take it or leave it for actors as the corporate body could choose any actor. The SABC contract had been adapted by producers.
Adrian Galley, actor and Vice-Chairperson of the South African Guild of Actors, stated that it was up to the Committee to guarantee that the rights granted to actors in the Beijing Treat were not diluted in the national legislation. In the absence of collective bargaining rights, collective rights management was essential. In the production and distribution of audio-visual content, the right of title passed along the value chain, so the transfer of exclusive rights was essential. The transfer of rights did not mean a waiver of rights. SAGA appealed for statutory amendments that would enable a dedicated system for the accurate monitoring, tracking and reporting of all actors’ work in audio-visual.
The Chairperson asked if there was a difference between the Collective Management Organization and collecting societies.
Mr Devnarain explained that collective management was to do with regulations and the collective society was the organisation that would carry out of the collection of royalties.
Mr Mahlobo stated that the Members in the Committee were there to support rights. He assumed that SAGA was supporting the Bill but the Committee was looking for specificity in terms of how to strengthen the Bill. The point about M-Net and SABC was about contracting obligations and that issue was in the Bill. Actors needed to be supported in situation where large numbers of people went for auditions. That was where the legislation needed to be strengthened. Currently it was a case of take it or leave it. Then there was the issue of production and, thirdly, it was about rights that were being transferred. The question of the contract needed to be clear. How should it be strengthened to avoid exploitation?
The idea of pay rates took a number of issues into account. One could have a premium in the rates for those coming from an historically disadvantaged background. What was the mathematical instrument regarding sharing of profits? That had to be decided.
Regarding collective management, he stated that the industry did not have hegemony but affiliations. There were many collecting societies and the legislation needed to build in safeguards to protect them in the South African conditions.
Mr Mahlobo suggested that the Committee flag the issues of M-Net and SABC. That matter needed attention immediately, even before the conclusion of the Bill.
Mr Williams stated that many of the issues that SAGA had raised were already in the Bill. So was there nothing that SAGA wanted to add to the Bill? The issue of moral rights and so on that the submission had referred to, was already in the Bill.
The Chairperson explained that a submission had to address the Bill itself and not be a general discussion of issues. The Committee required very specific concerns. The overview was not helpful. SAGA should send the very specific concerns it might have with the Bill to the Committee in writing.
Ms Ntlangwini read a Twitter post from Fifi Cooper thanking Julius Malema for helping her to fight her previous record label. She stated that artists like Fifi gave the EFF energy to fight the exploitation. It was not right to have such exploitation happening in the performance industry. There should be investigation into the SABC and M-Net contracts as it was inhumane to take away rights. Contracts could not take people’s rights away. The Committee had to see to it that the legislation was implemented.
Mr Cachalia said that he would like to assist SAGA. Contrary to certain beliefs and some aspersions, they were not impervious to the plight of actors but wanted to assist them by providing training, templates of contracts, legal assistance and more. He was not keen on standardised contracts because a standardised contract was an oxymoron. Inherent in the concept of contracts was the freedom to contract in a way that met the needs of actors. Fairness needed to be addressed. Actors should be helped to deal with the right to onward exploitation. There had to be contracts to deal with the rights of buyers and sellers fairly. The lump sum contracts needed to address onward exploitation and deal with the rights of both buyer and seller fairly. The future contract needed to address, specifically, the use in time. That was the way that the world worked. The duty of legislators was to foster creativity, fairness and the sustainability of the industry which fed all of that. He urged them, in their passion, to consider the points that he had made in their future submissions.
Mr Williams pointed out that when Mr Cachalia said ‘we’, he did not refer to the ANC.
Mr Mahlobo said that Mr Cachalia could not say that was how the world worked as that was not factually correct. There were parts of the world that did not believe in the capitalist system which had failed, and those parts did not have contracts.
The Chairperson noted that there were different views in the Committee but asked everyone to be tolerant of each other and to respect the views of others.
Mr Macpherson asked about standard contracts. Were individual performers supportive of being part of a collective in respect of standard contracts? Had SAGA canvassed that view and was it something accepted by all performers, or just those in SAGA?
Mr Devnarain responded to Mr Mahlobo saying that the Bill was the starting point to redress the imbalance in the standard contracts that referenced the Constitution. There had to be consistency in the rights that people had between statutes and the Constitution. The actors should be given negotiating powers. The existing SABC contract acknowledged the rights of actors to claim exploitation fees but since the contract had come into being in 1997, the SABC had never been able to engage in negotiations on issues stipulated in its own contract so administrative responsibility should be taken by those who had drafted the contract in the first place.
SAGA supported standard contracts and acknowledged that redress had to take place. The actor coming through a community theatre should not be prejudiced in comparison with others who came through university qualifications and that background should also not prejudice the rates that they were paid.
Regarding the collective management organisation, SAGA believed actors should be able to choose the collecting society that was suitable to each actor.
Adrian Galley explained to Mr Mahlobo that SAGA had not included specific suggestions in the submission. Those were contained in the written submissions but they were happy to clarify those issues. Their understanding was that the presentation was in addition to the written submission. Because of the uncertain status of actors as employees or contractors, actors were not protected by the labour laws. Collective bargaining was not allowed – that was called collusion. Actors could not talk about standard rates but only about minimum rates. SAGA wanted the Performers’ Protection Amendment Bill to give them the same rights and protections that fellow workers in the country enjoyed by default.
Carlynn de Waal Smit was a founder member and general secretary of SAGA. She emphasised that there was a need for a collection society. She was aware that there might be only one organisation per right but at least performers could have a collecting society collecting on their behalf. SAGA did not believe that it should be mandatory to belong to a collecting society, but it had to be mandatory for a collection of money for actors. How that happened would be the process of regulations. SAGA was looking at a number of international collecting associations and how they dealt with the right of association and other matters, especially what could work in SA, which was different from America or the United Kingdom. SAGA believed that the country could learn from the past experiences of those societies.
Mr Devnarain responded to Mr Williams’ questions about items not contained in the Bill. In 20 minutes SAGA had had to be very selective about what it could address and had chosen to support the principles. SAGA was afraid of pre-empting the adoption of the legislation and would be able to be more specific in discussing the regulations. SAGA had attempted to make its stand on the Bill very clear and was specific about things that were key, even if SAGA had not been as specific as he would have liked them to have been.
Adrian Galley added that the SAGA written submission included that the rights of actors should be transferable and not waivable and that collective management had to be mandatory. Those were two key issues in their submission.
Mr Devnarain responded to a comment by Ms Ntlangwini, stating that implementation was essential. Any legislation had to be armed in its execution. He was moved to hear her say that it could not be allowed that the unfair conditions continue on her watch. SAGA was making submissions on the amendment of an Act that was 51 years old. He was 47 years old and was looking at the fact that, without the Bill, his work would not give him a residual income when he was unable to perform. He asked whether the Committee would stand by him. When Ms Ntlangwini had expressed her sentiments, he knew his trust was well-placed.
He assured Mr Cachalia that SAGA agreed with contracts but they wanted fairness on both sides. The relationships in contracts were just the way the world worked and SAGA was there to explain how the world worked unjustly for performers, so they wanted a Bill to address that unjustness. SAGA would not stop actors from signing contracts, but the sector had failed the test of transformation. The big players had yet to present and would display their power and authority. SAGA was the David in the world and to describe to them the way that the world worked was unfair.
Ms de Waal Smit spoke about the practicality of contracting a performer. Some broadcasters would refuse to agree to be part of the contract between the producer and the actor. The broadcaster would say that they were not interested in anything in a contractor but owning the rights. Actors were fighting two Goliaths, both the broadcasters and the producers. The contracts were not fair and they felt that they wanted to be part of the process of how they were contracted and what was contracted. Actors needed certain aspects of contracts in the Regulations to the Bill, and other aspects needed to be outside of the legislation. That distinction needed to be identified.
Mr Devnarain responded to Mr Macpherson, saying that he did not know if all actors supported SAGA proposals because SAGA did not know how many actors there were in the country. Actors were not allowed to choose whether to be employees or independent contractors. Actors did not have access to the basic conditions of employment and safety measures. He pointed out that an actor had been swept over a waterfall to his death because the standard safety practices in the industry were not adhered to. He did not know what underpinned the standard safety measures. Were they contained in a statute? He did not know. SAGA had put its best foot forward. SAGA had canvassed members and that was what they brought to the Committee.
The Chairperson noted that Mr Devnarain was asking that human rights informed the position of actors. She did not want a response then but she referred to SAGA’s written submission and the reference to collective agreements. There was no adjustment to section 6 in the Bill and the Bill was very thin. Various recommendations had been made in respect of both sections 6 and 8. She noted that SAGA had proposed an adjustment to offences and penalties. SAGA also wanted musicians included and highlighted a need to look at agents and criminal liability for those who claimed to be representing others. She wanted SAGA to come back in writing with detailed input.
Ms Ntlangwini asked the Chairperson if the Committee Researchers could look into collective management.
Mr Macpherson said that there was a difference between basic conditions of employment and subjecting all actors to a standard contract. He was not sure that it was fair to expect all actors to use the standard contract because it was legislated. People might not agree the contract. People had to have the freedom to associate. Minimum standards were fine but not binding everyone to a specific contract was problematic.
Mr Cachalia noted that there were two comments on how the world worked and his attitude towards contracts. He wanted to make something very clear. They should not talk past one another. SAGA had said that it subscribed to contract. He said that he was contextualising contracts and was supporting what the Guild had been saying. When one dealt with a lump sum in a contract, there had to be mechanisms to enforce payment and, secondly, the quantum of it had to take into consideration the nett value of future contracts. That was how one would determine the payment. He was assisting them with mechanisms to sign fair contracts. Secondly, there had to be the right to waive a lump sum. If one chose that route, there were other things to take into consideration in the way that the world worked where one used real options for going forward. One would need to address the scope and value and the timing of it. That was how the world worked.
Mr Galley said that Mr Cachalia may have misunderstood his colleague. SAGA was fully supportive of the value chain and rights being passed down by contract. SAGA was on the same page as Mr Macpherson. SAGA was not looking for prescriptive contracts but minimal standards, specifically with regard to the Bill.
The Chairperson noted that when considering the vulnerable actors, one thought of those who were uninformed but she knew of actors who had been in the legal field previously, and were not vulnerable or uninformed, but they did not know what their position was.
Ms de Waal Smit stated that SAGA agreed with lump sum payments. SAGA was happy for broadcasters or producers to make an upfront payment but an actor needed to know what the payment was for and what was an actor agreeing to. Currently, actors did not know what a lump sum was buying. Collective management organisations could assist in that way. There were examples of how a collective management organisation could assist in managing the process. There was also an international umbrella body for collective managing agents that could possibly assist the Committee.
In conclusion, SAGA had been invited to visit the UK, Sweden and Denmark for an immersive engagement with collecting management organisations and would pass any relevant information gleaned on to the Committee, if so required.
The Chairperson thanked SAGA and suggested that DTI make use of the opportunity to hear more about collective management from an international perspective. She noted that SAGA had no idea of the number of actors in SA and that Members only received anecdotal evidence of how difficult things were for actors when a favourite singer or performer passed away impoverished. There might be a need to provide a regulatory a framework and architecture, based on human rights, for the acting profession.
The Chairperson asked people to be succinct with no prefaces and to get to the point of their questions.
International Federation of Film Producers Association (FIAPF) submission
Bertrand Moullier, FIAPF Senior Advisor International Affairs. FIAPF was a French anagram for the International Federation of Film Producers Association. MPA, the Motion Pictures Association, was one of the members of FIAPF.
FIAPF’s commitment to performers’ rights was a pragmatic one: if screen actors did not enjoy the protection of a clearly laid out legal framework, it was more difficult for the producers and performers to negotiate together in order to develop workable industry agreements, including collective bargaining agreements that
were fair to both sides, were transparent and that regulated both the transfer of the rights to the producer and the remuneration of actors. FIAPF’s commitment to orderly industrial relations between producers and
screen actors and other AV performers was behind its support for the WIPO and Beijing Treaty and FIAPF agreed unreservedly with the government’s objective to implement the international accord into South
Secondly, there needed to be a workable, realistic dispensation so that producers could put a project into production. Transfers of performers’ rights should be signed, with specific enablements being determined by the role-players.
FIAPF reiterated its support for a fair and transparent legal framework for the protection of performers and audio-visual performers’ rights. The organisation expressed its concern that the draft currently under
discussion bore the significant risk of overregulating the complex area of rights’ transfer and remuneration for audio-visual performers.
Mr Moullier pointed out that the majority of the films produced did not cover their costs. That was an incontrovertible reality of films and had to be borne in mind. Film was an unusually expensive piece of cultural work. Some costs were incurred in attempting to bring something to the market place and those costs were not recoverable. One always took a bet on scripts, rights to books, etc, hiring a screenwriter and going to drafts. All of which incurred costs before a single shot was filmed. There were many costs that had to be written off. It was a unique idiosyncratic craft and it had to be remembered that films had a propensity to market failure.
The Chairperson informed the Committee that the FIAPF detailed submission had not been printed; Committee Members would receive it the following day.
Mr Moullier noted that sections 5(a) to (d) contained the notion of prescription. Section 5 contradicted section 3(4). The rights had been whittled down to a prohibition. The contradictory approaches would not work. Furthermore, the section ignored the exclusivity deals. YouTube or cinema was a bespoke dream and the distributor took a risk when using such platforms. Section 3(4) correctly interpreted the Beijing Treaty but other sections seemed to refute the Treaty. The role of the law was to establish rights of performers. Remuneration should not be prescriptive.
He had listened to SAGA’s submission. If actors could not get together to establish collective bargaining, then the labour laws had to be adapted. Collective agreements were necessary as actors were not as strong as others. Collective bargaining was the norm in France. It would be FIAF’s vision for the government to permit collective bargaining as an enabler and referee. The process and systems necessary would require ongoing support in the form of grant-in-aid from government but that would be more effective than the top down approach.
The Chairperson indicated that questions would be delayed until after the following submission by an actor.
Florence Masebe – actor
Florence Masebe told a story of the heart. She had been working in the arts for more than 20 years and still worked as a performer and could tell the Committee about the reality of an actor in South Africa. Her sentiments were representative of many actors, living and departed, whose rights had not been protected since the introduction of television.
She asked that the Committee listen to the words of those whom the Bill sought to protect. The Committee should not listen to broadcasters, or film producers who took DTI rebates while actors lived hand to mouth. Her input might be that of an individual but she strongly believed that her sentiments were representative of the voices of many audio-visual performers who had not had the opportunity to put forward a submission and to make their voices heard in the Committee. She made the submission for the many actors, living and departed, whose rights, moral and economic, had not been protected by law since the advent of television in this country more than 40 years ago.
There was no clear position on when, or how, actors would get compensation for audio-visual works that had been sold to M-Net and DSTV. For many years, the bulk of actors had relied on the SABC that had exploited actors. The industry needed standardised agreements. The current, commonly-used agreement was based on an SABC contract and the Performers Right Equity. It was more than 30 years old. She had not received one cent in repeat fees because the producers had removed that clause from the contract. Outside of SABC, MultiChoice was the biggest broadcaster. Actors were paid once, but the dramas were played over and over again and MultiChoice did not pay royalties because there was no such legislation in South Africa.
Florence Masebe called for full recognition of the broadcasting rights across all channels. She wanted harsh consequences for all those who contravened the legislation. She called on SA to become a signatory to the Beijing Treaty. The Bill would not solve all ills but it was a crucial building block. She asked the Committee to support retrospective royalties.
Mr Mahlobo thanked the presenters, especially the actress Florence Masebe. The ANC believed that the Bill was long overdue and they were losing artists who were dying in poverty.
The matter of SABC had legal implications etc. but it should be separated and treated as an urgent matter, in conjunction with other Committees, as it could bring interim relief. Those who wanted the status quo to remain wanted people to be held responsible for circumstances that they had not created. Roman-Dutch law, the law of contract, assumed that people entered into contracts of their own volition and were able to determine their own demands. The reality was that they did not enter the contracts as equals. It was not the fault of black people that they did not have the skills to manage contracts. The Committee had to find a way that contracts protected actors without being binding. The position of the ANC was that retrospectivity was constitutional.
FIAPF had provided an eye opener regarding the film industry. The example from the UK was a good example but not acceptable to South Africa as the conditions in South Africa were not the same. South Africa had had colonisation of a special type. Perhaps FIAPF could do further research in Africa, especially in Nigeria. The Committee would just note the submission as the mechanics were not appropriate for South Africa.
Mr Williams was sceptical about FIAPF which gave examples of international best practice but throughout the afternoon and evening, performers had not painted producers in a very good light. Producers might treat actors differently overseas but they exploited them in SA. He was absolutely behind the Bill and there should be no problem in passing the Bill as it stood. He asked Florence Masesbe to indicate if anything was missing from the Bill from the point of view of actors.
Ms Ntlangwini said that she felt emotional about the exploitation because she had grown up watching actors such as, and including, Florence Masebe on television. She became upset and emotional when she saw the exploitation of Florence Masebe. She asked Ms Masebe to provide written input with anything else that performers would like to see in the Bill.
She spoke on behalf of the EFF because she held a very serious position on the EFF National Executive, and the EFF wholly supported the Bill. The EFF would make sure that the Bill did not gather dust.
The Chairperson commented that it would be an indictment on her if the Bill did not succeed, especially seeing as it had first come to the attention of the Committee in the previous term of office.
Mr Cachalia thanked both presenters. The passionately expressed submission could be addressed by the Bill. An example lay in the dispassionate submission by FIAPF of a UK contract that enshrined the residual calculation and which fleshed out almost exactly what he had had in mind and had referred to earlier. It addressed matters productively and progressively going forward. In respect of retrospectivity, going backwards, there was a presumption against it in law and they would do well to tread carefully lest the courts embarrassed their actions. The law, like it or not, was the law.
Ms Mantashe noted that she and her party were legislators. If the law did not allow them to do something, then they could change the law to enable them to do what it was that they wanted to do. The Labour Relations Act stipulated how many hours a person could work and thereafter had to be paid overtime, which was not being done. A performer was a worker and had to be protected by the laws of the country so the Members of the Committee could not fold their arms while the laws of the country were being disregarded. The Committee needed to address that as soon as possible.
Ms Theko asked about section 3(a). She stated that it needed to be aligned correctly to the Copyright Bill. The Committee would have to consult with the legal team. She heard Florence Masebe and she knew that the actors had approached the former President and the ANC was there for her and she was going to ensure the Bill went through.
Mr Mbuyane asked FIAPF who had said that the majority of film productions had failed to recover their costs. Could he unpack that? Why was it so? The Beijing Treaty spoke about four economic rights. He wanted clarity about what they were. He wanted clarity about the terms ‘unfixed’ versus ‘unfee’d’. What did Florence Masebe want the Committee to add to the Bill about retrospectivity?
The Chairperson noted that FIAPF had given several examples of what was operating Britain but she would be interested to see a comparison with a SA contract. She thought SA contracts paid only for the original performance and not for the other items listed in the UK contract. In its own analysis, did FIAPF think the actor in SA was getting a fair, equitable deal? She was speaking to FIAPF as an internationalist. It came as a surprise to learn from Florence Masebe that there were so many gaps in SA. The Chairperson asked if, Ms Masebe could send, in writing, a list in order of priority of the most urgent issues, some important issues but also the nice-to-have issues.
Mr Mahlobo asked the DG how the incentive given to films to try to grow the industry could be used as a tool in the hands of government to change how the industry behaved and treated its valuable assets, which were people. How could they get a better balance?
Ms Ntlangwini asked the DG whether the DTI incentives were given to international film companies and producers. What proportion of those incentives did local creators receive?
Ms Masebe said that she would write a comprehensive submission in response to the entire public hearing. The issues were cross-cutting, affecting the Departments of Communication and Labour as well as Trade and Industry. Actors had many issues that they would like to have addressed.
Bertrand Moullier said that FIAPF could not pass moral judgement on people in different countries but in SA the industry was split into two. There was the service industry that provided first rate infrastructure and production services for international producers, and which did develop infrastructure and skills and jobs, and also gave opportunities to some South African actors. Secondly, local independent businesses were split into small undercapitalised businesses, structurally flawed and underfunded, struggling to meet pay rolls. If looked at from the oppression model, the chain of oppression began with the big buyers and that pressure was passed down the line. He explained to Mr Mbuyane that, in any calculation of what revenue should go to any party, it was important to factor in the discipline of trying to recover the cost of the money invested.
The Chairperson explained that, although she had met SAMRO some years previously when the organisation had approached former President Zuma about a change in the Act, it had been necessary for the Committee to work on the Copyright Amendment Act first before the Committee could address the Performers’ Protection Amendment Bill.
Southern African Music Rights Organisation (SAMRO)
Gavin le Roux, Board Member, at SAMRO, agreed that the two Bills, the Copyright Amendment Bill and the Performers’ Protection Amendment Bill, were inextricably linked. The CEO of SAMRO, Nothando Migogo, introduced the submission.
SAMRO was a non-profit company and represented over 15 000 members and was governed by the Copyright Act. SAMRO had been in mechanical rights for a short while and was at the forefront of the needle time thrust. SAMRO had opened a subsidiary in UAE in 2015- 2017 but it was not a successful investment. Members had determined the need for a forensic investigation into that investment. The POSA Trust was set up to deal with needle time for performers. SAMPRO had been representative of the record companies. Following a court case over a dispute, it was agreed, in 2014, that the two organisations would merge into one, namely SAMRO.
Gavin le Roux stated that his experienced had ranged across all aspects of the music industry. The Copyright Review Commission Report had stated that certain Bills had to be amended and composers and artists felt that the new Bills provided the possibility of hope for South African performers. South Africa had missed many opportunities. Legislation would not help without economic opportunities for performers. The laws had to be made to serve South Africans and to allow them to take the talent abroad. Blacksmith Mambazo still got a Grammy each year but in South Africa, the band was ignored and virtually all performances were by overseas artists.
SAMRO was concerned that copyright issues were not taken seriously. Restaurants could not open without a liquor licence and food licences but no one worried about ensuring that the restaurant copyright licences.
The organisation supported the Bill, in general, but had a few comments on phrasing of clauses, which the experts, SAMPRO and IMPRA, would provide in detail the following day. Other concerns related to the definition of a broadcaster, and, while SAMRO welcomed the protection of performers’ moral rights and economic rights, it was not clear what rights were protected, other than the copyright, after death. The written agreement of 25 years was fine but how could the artist terminate the contract before the 25 years were up? Referring to section 3, he asked what equitable renumeration meant. He also pointed out that, in relation to Section 5, ‘communicate to the public’ was more encompassing than ‘making available to the public’. SAMRO welcomed the licencing requirements but, although it was happy with the copyright description as it stood, it did not want to see copyright going further into fair use.
The Chairperson noted that SAMRO would be with the Committee for some time. She determined that the next presenter would make her submission and then the Committee Members would ask questions.
Nambitha Mpumlwana submission
Nambitha Mpumlwana introduced herself as a South African actor who had spent some years in Canada in exile. She had been raised to believe that she mattered. She had worked as a cultural worker inside and outside the country. As an activist, and a child of activists, it was the right time for her to speak out. She was one of the sixteen actors publicly dismissed from the production of ‘Generations’. The ‘Generations’ actors had signed a freelance contract and so they were not employees and were not covered by the Labour Relations Act. However, they fell under the control of another person and they had worked at the times required by another, which suggested that they should have been covered by the Labour Relations Act. The contracts called for 40 hours per month but on ‘Generations’, she had been working 16 hours per day. Hence her decision, together with her colleagues, to demand what they were truly owed by the production house. The actors were replaced.
Her current status as a freelancer rendered her unbankable so she could not get a home loans, car loan or medical aid. She was a permanent freelancer. SABC was a state owned enterprise and Parliament, which represented her, was the stakeholder of SABC.
The Amendment Bill was beautiful but it did not protect her from any contracts that she had signed with MSV, the company that had been assigned to produce the television drama, Generations. The contracts of MSV and SABC were identical and it sounded, to her, like collusion. The SABC was contractually obliged to pay royalties on international showing but it was difficult to get payment from the SABC. There needed to be penalties for those that broke contracts.
People who should have been making a comfortable living from syndicate fees were living in poverty. Clause No 7 in the generally used contract stated that the SABC should be entitled to exploit the production in any way whatsoever, but should the SABC exploit the likeness of a lead actor, the actor was entitled to a lump sum. Such a lump sum had never been paid to Ms Mpumlwana. Producers often arranged, and made money from, product placement without actors knowing it. On one occasion she had had to use an e-wallet by FNB on screen. Her only payment was by SABC for the episode. Later, when she was offered an opportunity to be on an ABSA advert, she could not appear because she had unwittingly, and without pay, ‘endorsed’ the FNB e-wallet.
She needed the Committee to focus on royalties and syndicate fees in South Africa and worldwide. The commonly used contracts that she had also signed, had a clause indicating that the SABC would pay for exploitation and repeats of work but there were only two signatories to the contract, herself and the MSV. SABC had not signed the contract, and had refused to sign it later and so she could not enforce the contract. The law needed to be made retrospective by at least ten to twenty years. She requested that the residuals were paid automatically. She was not asking for special treatment, but was asking for equity.
Ms Mantashe said that what Nambitha was saying was painful to her as she had been shop steward. Laws governing labour broking had been passed but labour broking still happened in the country. She wanted Ms Mpumlwana to submit her recommendations in writing.
Mr Williams asked about the overseas broadcast of local productions. She should put her requirements regarding that matter in writing. He agreed that there had to be amendments to labour law to protect the performers.
Ms Ntlangwini appreciated the submission. She was upset and angry that actors were so exploited and abused that it had become normal to people. The Committee had to zoom in on the SABC without delay. She said that it was not right to work 16 hours. It was inhumane. People’s health was at risk with things like the make-up that they put on the skin of actors. The things could not be left unattended.
Mr Mahlobo thanked SAMRO for the work that they had done and for raising the issues. The reference to collecting management agencies was important. How did one ensure unity when one had to allow people freedom of association?
The issues raised by the actors was concerning. That the Committee and the performers were working so late called for reflection. Inasmuch as the Bill was about protection, the question was whether it went far enough. There might have to be a joint meeting with Communication, Labour, Finance and Arts and Culture as some of the things did not fall within the jurisdiction of the Portfolio Committee on Trade and Industry. What had happened was an untold suffering. One tends to judge people but when one hears the story, one realises that the socio-economic status was used to exploit people. SABC chose when to pay and who to pay. The Committee could not look away. History would judge the Members if they did nothing. The contract needed to be dealt with by the best lawyers. SABC was trying to pay certain people while not paying others. Furthermore, using the same contract with the names of different organisations was corrupt.
Redress was non-negotiable but the legal team had to determine the right instrument to do that. The democracy was young but now there was a gap in the law where a person worked long hours but had to work as freelancers and was abused. Freelancers were the most abused workers.
Ms Ntlangwini asked that the Committee be given copies of the contracts. The Committee needed to see whether they conformed with the Constitution. In the US, it had come to light that people had been raped but could not do anything because of the non-disclosure clauses in their contracts.
The Chairperson indicated that the Committee wanted copies of the contracts and requests to be put in writing so that the Committee could deal with them more effectively.
Ms Mpumlwana agreed that she would respond in writing and would submit a copy of the contract. How to collect abroad was a lot simpler that it seemed. One knew whom one had sold to. The problem was that when she had asked SABC for an audit to calculate residuals, the figures had been blacked out. The books were audited by auditors for the Attorney-General and SABC knew exactly what had been sold and to whom. The broadcaster had to be mandated to reveal those audits, possible to a collecting society. If she, as an actor, challenged the contract, she was told that it was a standard contract which implied that it was okay for everyone and she should not be difficult.
She explained that every time she left her house, she was a work seeker and her reputation was on the line so it was hard to defend herself. For example, she had been forced to drink from a dirty cup. When she complained, she had been told that she would be replaced on set. The Department of Labour could resolve those working conditions.
Ms Mpumlwana said that the expectations of her were always changing and that the goalposts shifted without her even realising it. She did not know whom she could trust and from whom she could seek solidarity. She mentioned that Equity Actors was an organisation that did a sterling job in standing up for actors and could perhaps assist. She thanked the Committee for the opportunity and suggested that the idea of a joint Committee meeting was probably what was needed to address the broad-ranging issues.
The Chairperson was given a note to say that Nambitha Mpumlwana was the daughter of ANC MP, Adv L Mpumlwana (Justice Committee Member). The Chairperson welcomed Mr Mpumlwana to the meeting. She thanked Ms Mpumlwana for her submission, noting that she was very brave to stand up and speak, especially as she was still under contract.
Relebogile Mabotja, Board member at SAMRO, explained that she had experienced something similar to Nambitha but she had kept it out of the media and gone to court. Her pockets, however, were not as deep as those of the SABC. When one spoke about performers, one thought of performances where money was paid for the work, but she had also been expected to appear on TV shows ‘for publicity’. The actor had to sign a release form, although no money had changed hands. However, that release form meant that the broadcaster could exploit the appearance and do anything that it wished to do with that footage, even create new shows, and the actor would not be paid. Sometimes chat show was broadcast around the world on YouTube. Those contracts should also be addressed. Nelson Mandela’s image was, quite rightly, protected. But so should everyone’s image be protected. On the internet, anything could be created with one’s image, even a meme. One did not have to be a working actor to be exploited.
The Chairperson pointed out that the Committee had done a lot of work in the direction of copyright. The discussion had reminded her of the log sheets. The Committee should consider taking up the principle of log sheets to deal with performances. The Committee would invite the Portfolio Committee on Labour to a joint meeting. The Committee had sat with the Committee on Arts and Culture on the Copyright Bill and would have to do that with the current Bill. She was hoping that those to whom the actors were contracted were listening to the meeting. There was a Constitution and now Parliament was trying to ensure a robust piece of legislation to protect the rights of performers. The Department of Trade and Industry was also in attendance. Legislation concretised the principles of the Constitution. Few constitutions in the world had a Bill of Rights in the Constitution. The Committee committed to deliberate and take to the House a piece of legislation that would provide the essential protection to which the performers were entitled.
She thanked everyone for a longer day than anticipated but expected everyone back by 8:30 the following morning.
The meeting was adjourned
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