Copyright Amendment Bill & Performers Protection Amendment Bill: public hearings
NCOP Trade & Industry, Economic Development, Small Business, Tourism, Employment & Labour
07 March 2023
Chairperson: Mr M Mmoiemang (ANC, Northern Cape) (Acting)
Video (Part 1)
Video (Part 2)
The Select Committee on Trade and Industry, Economic Development, Small Business, Tourism, Employment and Labour met on a virtual platform to hold public hearings on the Performers Protection Amendment Bill [B 24D - 2016] and Copyright Amendment Bill [B 13D – 2017].
Fourteen oral presentations were scheduled and presented. Presentations were made by various academic professors, with the professors from the United States strongly supporting the Bill, particularly the inclusion of fair use, while two professors from Stellenbosch University had grave concerns about the Bill. One of the professors, who had testified in the SABlind Constitutional Court case on copyright, stated that he had identified 60 instances where the Bill was unconstitutional. The South Africa Publishers Association showed that its position was not as simplistic as it appeared and suggested that publishers did not always make huge profits. The Association pointed specifically to the lack of funding for textbooks at the university level as being a result of poor management of bursary funding by students who spent the funding on hairdos and electronic devices, leading to the illegal photocopying of textbooks. An individual consultant on copyright who had been campaigning for change since 1998 strongly recommended pushing the Bills through the parliamentary process, as did a national trade union.
Presenters from collective management organisations who managed copyright earnings pointed to the “one-size-fits-all” approach that could never address all the needs of their clients in such a diverse and creative environment. The rigid royalty system did not cater to many of the diverse writers and creators and several declared that there would be no earnings for them at all if the system worked on gross profit owing to the nature of their work, such as writing pitches that might never eventuate as a produced work. The proposed contract system was limiting to many of the more marginal workers in the creative fields while the reversion of rights was not well understood but, nevertheless, seemed to be a major stumbling block for investors and producers. Presenters predicted the reversion of right after 25 years would dry up much of the writing that told the stories of South Africa and drive international filmmakers away from South Africa’s shores. Fair use and fair dealing attracted a great deal of discussion.
Gradually, it became evident that the Bill would have a positive impact on actors and some creatives but would equally have a negative impact, not only on those who put funds into productions, but also many creatives, especially in the digital field, and writers whose work and remuneration did not conform to that of mainstream actors, etc. Presenters called for the Bill to address the myriad of groupings of creatives and funders who would be impacted by the Copyright Amendment Bill and the Performers’ Protection Bill.
One Committee Member had a question about a bi-annual survey of royalties. However, the Acting Chairperson summed up each presentation and, after most presentations, raised a point from his summing up for the presenter to elaborate on. His questions focused on the key issues raised concerning the royalty system, the funding for textbooks, constitutional issues, fair use, the exploitation of actors and, especially, extras in the performances and films and legal uncertainty. He asked whether the two Bills, in any way, discouraged investors from commissioning or producing films. Was there sufficient protection for authors and performers in the bigger scheme of things or did the producers or investors have all the power in terms of negotiating? Was there equitable remuneration across the entire supply chain?
Having been elected the previous week to chair the Committee until the return of Mr M Rayi (ANC, Eastern Cape), Mr M Mmoiemang (ANC, Northern Cape) chaired the meeting.
The Acting Chairperson welcomed Members and participants. Presenting the order of presentations for the day, he acknowledged that it was a long agenda and hence commenced immediately the first presentation without a preamble.
Presentation by CHAIR of IP
Prof Sadulla Kajiker, Prof of Intellectual Property, University of Stellenbosch, questioned his sanity in making continuous submissions, saying that nothing had changed following his input over many years. He questioned whether it was a sham of public consultations – which it seemed to be so after seven long years of submissions. He queried the competence and transparency of the Department of Trade, Industry and Competition (dtic) and spoke of the problems of a failed state. If he had failed to convince the Select Committee, it would be another manifestation of a failed state. He hoped that the Select Committee would have an epiphany. Prof Kajiker added that in America, fair use simply meant the right to hire a lawyer to defend one’s right to create and that the debate about the matter was bigger than copyright but he also warned against using the plight of visually disabled people to pursue an agenda.
Ms S Boshoff (DA; Mpumalanga) suggested that the Committee not ask questions after each presentation, but at the end of the day asked if that would be a fair procedure as it would require the presenters to be with the Committee all day.
The Acting Chairperson said that Members could raise clarity-seeking questions.
He pointed out that the Bill had been passed 20 years before the new dispensation in SA and that there had been technological advancement and the fourth industrial revolution. Did Prof Kajiker not think that because of those developments, there might be a need to make some amendments to the copyright law, given the fact that the intellectual property regime was not static; it evolved? The Property regime had its own complexity and structural challenges where the dominant system continued to marginalise the educative sector while in the artistic world, the producer, in most cases because of the strength in the game, continued to exploit performances.
Prof Kajiker agreed that the law needed to be updated. Absolutely. He had no problem acknowledging that. As technology moves required changes and updates, and even in light of the Constitution things like parody and pastiche had to be added. However, one had to do so in a credible, transparent, and open process involving the experts that the Act provided for on a standing Advisory Committee. Why could the dtic not tell him where that committee was? Did it exist, and what was its role? As far as the other issues were concerned, he always said to his students that copyright was an esoteric field. And copyright was the cheapest form of property that any South African could own - the poor girl living in a shack in some rural village needs only pen and paper to write a world-class novel. The minute she created that she had property rights under copyright. It was the cheapest form of property one could own and did not require a government bureaucrat to give you a licence. What the Bill proposed was to water down copyright owners’ protection, and that was deeply concerning. The problem with struggling artists was a problem with collecting royalties, etc. The Farlam Commission had looked at that particular issue. The Bill was not so much about correcting those failures and problems, it was about other agendas, which seemed to have trumped the regulation of collecting societies. Why should somebody write a textbook under the new Bill if a university was allowed to simply make it freely available? The Bill was undermining intellectual activity and one was better off selling chicken tikka than writing a textbook, which could freely be copied by everyone. When textbooks were not delivered in Limpopo or elsewhere, it was not because of copyright, it was government failure and service delivery failure. Government can hire people to write books for a fixed fee and then the government owned the copyright and could print books to its heart's content.
He said that there could not be a focus on narrow interest without thinking of the larger ramifications of accountability in how that piece of legislation came about, and why. Issues should be dealt with on their merits. There were several provisions calling for an amendment. But SA needed a rigorous, thorough, coherent, transparent, and accountable process. That was all he had been asking for but there were roadblocks because, in his opinion, the agenda was captured.
The Chairperson thanked Prof Kajiker for presenting.
Motion Picture Association (EMEA)
Mr Stan McCoy represented the Motion Picture Association, an International Trade Association, representing major international producers of film and television, including Disney Netflix, Paramount Global, Sony Pictures Entertainment, and NBC Universal Warner Brothers discovery. There were three broad questions that he would address: why was the Motion Picture Association presenting; why was its perspective worthy of consideration and why did it assign such high importance to the achingly arcane subject of copyright law reform in South Africa; what action might it suggest that the Portfolio Committee consider taking?
He explained that South Africa had massive potential as a great place to make high-quality internationally successful films and television. And, frankly, only a tiny fraction of that potential had been realized so far through tremendously exciting projects, like Woman King with Viola Davis and Beast with Idris Elba. South Africa presented a particularly attractive proposition to the market and a thriving audiovisual sector in South Africa would provide attractive and exciting jobs for South Africa's young people and those included not only jobs in the typical jobs one might think of, but also jobs as caterers, carpenters, hairdressers, electricians, makeup artists, lighting technicians, sound technicians. One thing that was fundamental to getting there was a stable, predictable, boring copyright system that was aligned with international norms, as set out in the treaties of the World Intellectual Property Organization. That was his key message.
The Acting Chairperson asked if the view being raised was that the Copyright regime had the potential to bring about legal uncertainty because of the exceptions and the limitations and the freedom to contract. Was he saying that the changes in the intellectual property regime around Film and Television Production were problematic? He appreciated Mr McCoy sharing with the Committee the potential in terms of the contribution of the sector to the economy, given the demand for high-quality visuals and entertainment but investors would need detail and a framework to encourage them to invest in a system that had to provide protection to the property. The fact was that the property was protected and there was no room for arbitrary expropriation of rights because the government had to follow due process of law. And the fact that transparency, accountability, and the rule of law were integral to the Constitution, the supreme law of the country, which to a large degree, had made the conditions much more predictable, and much more attractive for investors.
Mr McCoy appreciated the summary of his points, more concisely and articulately than he had. His fundamental concern expressed was that the Bill as presently constituted included some holes in the basket in the form of vague exceptions and limitations on contractual freedom. Those concerns were elaborated on in the written submission but also included things like the fair use construct in the Bill, as a very vague exception and limitation and limitations on the protection of technological protection measures, which were absolutely vital for securing the protection of creative content in the digital environment. Things like the 25-year limitation on the assignment of rights and, the contractual override provision in the Bill were extremely problematic. The South African Constitution rang true, but he was not an expert in South African constitutional law so others could speak to that more fully. He did not come to judge but to advise what the international business stakeholders would assess when deciding where to make film and television and he had absolutely understood correctly that the copyright environment was one of the essential conditions that international investors would look at when deciding where to make film and television projects.
Mr Matthew Parks, Parliamentary Liaison Officer, COSATU, presented a brief and to-the-point presentation supporting the Bills. COSATU supported the objectives & provisions of both Bills as they were long overdue and would go a long way towards overhauling an outdated existing legislative framework that had all too often seen many performers and artists’ rights undermined as they did not receive royalties due to them. COSATU supported the need for exceptions to be made for educational purposes and access by persons with disabilities. Both bills would play a key role in providing access to materials for the public whilst protecting the rights of performers & artists, simultaneously respecting South Africa’s international, intellectual property & trade obligations. COSATU believed the Bills would pass constitutional muster and encouraged the NCOP to approve the Bills.
The Acting Chairperson appreciated the very categorical support from COSATU. As there were no questions from Members, The Acting Chairperson noted that the presentation was clear. In COSATU’s view of the openness of the supply chain in the film and television industry, was it broad enough to protect all the actors along the supply chain, particularly concerning the fact that in most cases a broadcaster would commission a producer to produce a film? Was the current regime strong enough to protect vulnerable actors? Would the two Bills, in any way, discourage investors from commissioning or producing films?
Mr Parks said COSATU had spent a lot of time discussing Bills with actors and with unions and guilds, including the South African Actors Guild that would also be presenting before the Committee. The simple question answer is that the rights of these workers were horrifically abused. So on one side, SA had a very progressive labour legal framework, so if one lost one’s job, one was entitled to unemployment insurance benefits; if one was injured at work, one was entitled to compensation, likewise if one contracted an occupational disease and one had the right to work in a safe environment, a limit on how many hours one might work a week, how many overtime hours, etc. But none of those laws applied to actors, partly because of the nature of the workers as those laws often were designed for a factory worker or a teacher or nurse engaged in formal nine-to-five, Monday-to-Friday work starting at the age of 20 and retiring at 65, or whatever. But there's a huge sector of the economy, which was rapidly evolving in the economy, like actors and musicians, Uber drivers, and many other types of atypical workers who had fallen through the cracks. The R64 billion rand Covid insurance fund had helped 5.7 million workers in the private sector but the performance and actors and musicians did not receive it because they had not been contributing to the Unemployment Fund. It was the fault of the labour laws that were not flexible. They did not have a kind of hybrid approach that incorporates formal workers and informal workers. Some of these actors were household names, such as Shaleen Surties-Richards, a famous actress who died two years ago when she had cancer but had no medical aid because actors did not work consistently. The Bills were going to begin to lay the foundation for recognising performance rights. Other legislation would have to be amended such as the Labour law and occupational health and safety, and so forth to capture the changing nature of work.
Mr Parks said that the other point was that they should not worry about alienating international investors because SA had quality actors who could perform, a natural landscape, the scenery, the oceans, mountains, infrastructure, and so forth. It was a very competitive industry. The country was not going to attract investment by treating people like slaves because then humanity was in trouble. The way to grow the industry was by respecting people, respecting the actors’ need to be protected, compensated if injured at work, and provided with some sort of unemployment insurance if they became sick. They should not be abused, etc. In Sweden, the acting industry had a collective bargaining mechanism. All the movies coming from Hollywood showed that the actors belonged to the US American Actors Guild, the American actors' trade union. In fact, Ronald Reagan, the former US president was the president of that actors’ union. So they take it very seriously. You will not find a movie being produced there without the trade union, enforcing minimum labour standards, etc. That kind of discussion was necessary to see how to replicate that in Africa. But one cannot grow the economy by treating people like slaves in the 21st century because then talented actors would move overseas. But the Bills were a positive step forward and that was why COSATU supported them.
The Acting Chairperson thanked COSATU.
Publishers Association of SA & PSA SMME
Mr Brian Wafawarowa spoke on behalf of the Publishers’ Association. He commented that listening to presenters at the hearing, it was very difficult to even imagine that everyone was talking about the same thing and therein lay the conundrum. He agreed that there were problems that needed new legislation but a lot worked very well. If one had bedbugs, burn the mattress, not the entire house. He had been in the business for many, many years and was an international consultant. He had seen rampant illegal copying and pirating and knew that only 30% of all books had been sold; 70% had been illegally copied or pirated. In that sense, South Africa was very rapidly heading to where Nigeria had found itself in the 1990s and the Bills fuelled that decline. Authors were refusing to write books, especially textbooks because their works were copied. There was funding for every child in a school in South Africa to have a textbook in each subject. He appealed to the Committee not to confuse funding and management or mismanagement with copyright issues. PASA supported the Performers' Amendment Bill because performers would gain accruals but authors would be deprived of accruals by the Copyright Bill. He highlighted specific problems, concluding with an assurance that the return of copyright after 25 years would spell the death knell for the industry.
Ms Louise Grantham, a small publisher and a representative of SMMEs on PASA spoke of the difficulties of being an SMME in the publishing industry in South Africa. She also provided the example of Sindiwe Mgona, author of Mother to Mother, a book published nearly 25 years ago that was only now reaping rewards and the royalties would provide her with a pension, unless the copyright ended after 25 years and schools began reproducing her work, leaving her without a pension.
Mr Wafawarowa concluded that an impact assessment on the various sectors was critical.
The Chairperson requested Mr Wafawarowa to expand on the parallel between TVET (Technical and Vocational Education and Training) institutions and universities in terms of the benefits that accrue to publishers from TVET but not from universities.
Mr Wafawarowa stated that PASA had a lot of sympathy with the whole issue around access to textbooks for students. The question he was asking was why it was that in schools, there was universal coverage of textbooks, and all learners now had textbooks, although they had problems in the past. And if one went to the colleges, at the TVET level, there was 100% coverage of textbooks. The economies of scale were huge. The publishers published in huge numbers because every student received a book. And the government acquired the publication of books for every student. PASA worked very closely with those two sectors in terms of textbook provisioning. And even when there was a crisis in Limpopo, the publishers were asked to step in. They agreed to abandon the contract provision as it was a special case. And the learners had everything that they needed. Now, the question that he asked was why that was different when it came to universities. The only difference was that there was an allocation that was enough to cater to every student’s book needs. But at some stage along the way, the National Student Financial Aid Scheme (NSFAS) decided that to learn to teach the students how to be responsible with their budgets, they gave them everything, including the money meant for textbooks. Some of you would have seen the advertisement that said students should “come in and spend your money with us”. And that was where they put the money meant for textbooks. And what did they do thereafter? They took a textbook, scanned it, and shared it among themselves. As a result, when NSFAS did that, the academic market collapsed by 70%. Publishers were fulfilling less than 30% of that market. So what was the issue? The issue was not the price of textbooks because if arrangements were made for blanket licensing, textbooks could be provided for all students for R150. More than R5 200 was allocated for textbooks but that was going to hairdos and technical gadgets. So he was just illustrating that what they were dealing with was not the issue of funding but the management of those funds and not an issue of the price of textbooks or copyright.
The Acting Chairperson asked for his view on the reproduction of textbooks to accommodate the blind.
Mr Wafawarowa responded that he had been in the industry for a long time and publishers had never failed to provide the requested material to learners with any disability, and they had worked with the Department of Basic Education and had insisted that those learners should get their material in the same time as others. There was a difficulty initially when they moved from braille to digital in the sense that the open files that they needed, were the same files that sighted people used. The industry said that there needed to be some form of trusted intermediaries who could help to ensure that when publishers handed over those open files, they were used by learners with a visual impairment only. The industry supported the Marrakesh Treaty – he was involved at WIPO in the negotiations of the Marrakesh Treaty right up to the time when it was signed in Marrakech, Morocco. And what that did was it provided local mechanisms that would allow people representing those with visual impairment to have access to those materials without being constrained by copyright. So that has been isolated and could be dealt with by acceding to Marrakesh, and the industry had been urging the government to accede to Marrakech as quickly as possible. Even the court case that BlindSA had to take to the government would not have been necessary if Marrakech had been acceded to. So it was disingenuous not to agree to Marrakesh on one side and then bring the issue of learners with visual impairment to the broad discussion on copyright when they were not utilising the available tool.
The Acting Chairperson thanked PASA for the input.
Licencing Executives Society of South Africa
Mr Danny Dohmen, the immediate past President of LES SA, made the presentation. He was accompanied by Johan du Preez, CEO. The Licensing Executive Society SA was a branch of the international association which advanced the business of IP through the creation, protection, and commercialisation of innovation, and managing and monetising IP and technology transfer. Issues raised included the proposed limitation to the term of assignment (i.e. transfer) of literary and musical works and of performers’ exclusive rights which were not true “reversion of rights provisions”; the 25-year term limit on all literary works including textbooks, articles, reports, and memoranda and tables and compilations and the blanket ‘contract override provision’ that would result in much legal uncertainty and arbitrarily restricted freedom to trade. The fact that no voluntary renouncement, or waiver, of any right could be granted under the Act e.g. copyright, moral rights and statutory royalty entitlements.
So in summary, the contractual rights and compulsory contractual terms restricted freedom to contract and constitutional rights, trade and property and the lack of social economic and legal both constitutional and treaty impact assessments were of concern.
Ms Boshoff appreciated the presentation and was pleased to see that the company conducts regular royalty rate and deal term surveys with authors. Could they explain what informed the survey and how it was conducted?
The Chairperson asked if LES SA was of the view that the current system of technical technological protection measures was adequate to provide the legal protection needed concerning the online environment. He noted that it appeared that Mr Dohmen was of the view that the concept of “one size fits all” did not apply in the industry and there were issues around the reversion rights. Could he expand further?
Mr Dohmen had failed to mention that Johan du Preez was chairman of the copyright committee of LES International.
He explained that LES SA was a non-profit organisation representing industry stakeholders that sent out surveys on a bi-annual basis, sometimes slightly longer, to the members of the licensing executives society. As he explained earlier, many of those members were involved in technology transfer and licensing at some other level either as professionals in companies that dealt with technology transfer and the licensing of technology, university technology transfers offices, people involved with new signups and innovation on behalf of universities and governments and also lawyers specialising in the field. Many of the deals that those professionals were involved with were not confidential and the request was essentially for those professionals in that myriad of fields, from motion pictures to music, etc. So there was a large group of individuals dealing with such copyright transactions in all sorts of fields. South African members of LES were engaged in biotech, mining, software, and so on. Wherever possible, deals were reported by those members and the information provided clarity regarding royalty rates for different types of technology, different types of transactions, etc. That was how those surveys were done. The information was compiled and the resulting publications were available for purchase. The Licensing Executive Society International supplied the information to WIPO (World Intellectual Property Organisation) and used the information to make recommendations to WIPO. It was global information from various technology fields.
Mr Dohmen informed the Committee that when he spoke of technology transfer, it was the transfer of information in a licensing deal where a deal is made between the copyright and intellectual property owner and somebody else that wants to utilise it for a fee or some other arrangement. It applied to all sorts of technology, including online environments where information was licensed. And at the moment, the SA Copyright Act and contractual law allowed for licensing of content for online usage. He believed that the bigger problem was that some of the online content providers were not satisfied with that position and a copyright owner in South Africa might feel that there is an abuse of their rights and that they were not being provided with fair compensation. But that was a specific problem. And the concern was that many of the generalised provisions being used across the board came from the specific concerns of individuals. That was one of the concerns with the extension of the term limitation from literary works to other forms of work. Literary works were far broader, very different, and used in a completely different context than say a musical work would be used. It was simply impractical in many fields to use the same provisions applicable to literary works.
Concerning the reversion of rights, Mr Dohmen said that the issue was that the Bill was limiting the term for which one could commercialise the works to 25 years. It was well-known that for many artists, the real value in their work came towards the end of the life of the intellectual property, and the Bill was taking away, not the first 25 years, but the last 25 years, which had the most value and so the most detrimental effect.
South African Guild of Actors (SAGA)
Mr Jack Devnarain, Chairperson SAGA and Adv Kelly Kropman, constitutional law specialist made the presentation to the Committee. The South African Guilds Association supported the Copy Right Amendment Bill and the Performers' Protection Bill, noting that "extras" in films etc. were not intended to receive royalties. However, the Association requested that section 8A(5) be re-instated in the interests of transformation and restorative justice, declaring that the provision was pro-active and not retroactive.
Mr Devnarain concluded with a bleak picture of the lot of actors. The art and entertainment industry had almost completed its race to the bottom. The minimum hours of work in a day had gone from 10 to 12 hours. The pay was reducing and compliance with onset safety regulations was slipping. Actors were routinely called upon to provide additional services, such as free marketing, free advertising and social media promotion, free product endorsement, and free script translation, all the while being told they had to be grateful for the privilege of being allowed to work, then living and dying hungry. He declared the Bills had to be adopted.
The Acting Chairperson asked about Adv Kropman’s statement that Extras were not entitled to royalties. Were they not part of the supply chain of actors? Surely after 25 years, they would see the producers continuing to gain from their work but they received nothing, no royalties,
over the years.
Jack Devnarain informed the Acting Chairperson that the reality in the industry was that there was a distinction of material difference between the work of the performer and the work of the background extra. The distinction lay in the fact that an actor was required to prepare his dialogue, and to prepare and train for acting; an extra had no dialogue but simply filled a space in a photographic frame. The actor rehearsed his performance, taking direction from the director and that required constant training. That was very different from what was required of a background extra that did not have lines of dialogue to learn but simply filled a space. They did not perform.
The Acting Chairperson asked how one drew a distinction between a producer that engaged in the production of a series and a broadcaster because the broadcaster contracted a producer to produce a series. The producer then engaged several actors or performers. Was that not an inconsistency? He knew that producers and broadcasters had the bargaining power, and not the actors or performers.
Mr Devnarain stated that inconsistencies existed in the tripartite relationship between the actor, the broadcaster and the producer. The Bills sought to introduce consistency because he had vast experience with contracts and if he appeared on a soapy, the contract came from the broadcaster. So the producer was in the value chain to facilitate the relationship and to ensure a balance of rights and obligations. Producers offered the contract that came from the broadcaster but there was no mechanism for a negotiation process about the contract between the broadcaster and an actor because actors did not have collective bargaining rights. An actor had to take what he was offered. Film producers, who perhaps raised money on their own and were not being commissioned by a broadcaster, could draw up their own contracts but again the actor had no mechanism to negotiate the contract. Actors were asking the lawmakers to provide actors with a structure for collective bargaining as they were caught between an unfair contract, no collective bargaining rights, and threats by the Competition Commission to block actors from engaging in a meaningful dialogue with others in the value chain. SAGA had already been reported to the Competition Commission for trying to do just that.
Ms Janet McKenzie, Partner at Baker McKenzie and Ms Fatima Ismail, Associate at Baker McKenzie, briefed the Committee on their position as lawyers in the field. Their four major concerns were the royalty sharing arrangements; ministerial powers to prescribe mandatory terms and conditions; registration and reporting requirements; reversion of assignment of rights after 25 years. Specifically, by introducing royalty-sharing provisions based on reference to gross profit, the likelihood of recouping costs on production was incredibly low. As investors took all the risk in investing in a production, they should have an opportunity to recoup all their costs. The royalty payments calculated concerning gross profit precluded such recoupment entirely and would act as a disincentive investment. Ministerial powers to prescribe terms and conditions would remove all contractual flexibility from the artist and force a one-size-fits-all approach to all forms of media.
The Acting Chairperson summed up the key points made by Ms McKenzie and Ms Ismail. Their fundamental challenge seemed to be the contemplation of a similar numeration across all forms of copyright. They asserted that, in the industry, it was customary for several different commercial arrangements to be entered into by corporate owners with authors and performers in respect of the production of audio-visual work. Was there sufficient protection for authors and performers in the bigger scheme of things or did the producers or investors have all the power in terms of negotiating? Was there equitable remuneration across the entire supply chain?
Ms McKenzie asserted that the industry itself was one where there were dependencies. To do a production, investors would have to fund that production, but they could not do that production without the contribution of authors and performers, and in many instances, a whole television series or film would be dependent on authors and performers and under those circumstances, they would definitely be equal partners. It was essential to ensure that a system was in place that dealt with the issues on a balanced basis so that the interests of both parties were secured and looked after. It was about the flexibility to allow for different remuneration models to be discussed, negotiated, and to be put into effect. There would be cases where it would be unwise to be dependent on a royalty payment as that might never come. Ensuring that the contractual terms and conditions were capable of free negotiation, and oversight by the Copyright Tribunal was required. She noted that the Copyright Tribunal provisions had been substantially amended, and now allowed for the Tribunal to have oversight in terms of the royalties payable, the contractual terms of conditions entered into and to adjudicate to determine those disputes. She also noted that the Act itself provided for an effective process, one that was based on natural justice, would be quick and not take a lengthy period to resolve a dispute. In terms of the construct already in place in the Copyright Amendment Bill, there were sufficient protections, including access to a body presided over by a judge to determine disputes and to deal with any issues that might arise. That was a far preferable scenario to putting in place a regime, which did not allow any flexibility of contract, which required only one form of remuneration, with royalty rates determined and where contracts could not vary. The balance should be struck, and that was where the balance should be struck for investments to continue and for performers to continue to flourish and to make livelihoods successful and productive.
Ms Denise Nicholson, Scholarly Communications & Copyright Consultant, made an impassioned plea in favour of the adoption of the Copyright Amendment Bill and the Performers’ Protection Bill. Ms Nicholson presented a wide-ranging analysis of the two Bills, concluding that the history of South Africa made it a national imperative to build an informed nation, remove inequalities, create self-reliance amongst individuals through access to information and technologies, as well as build and sustain vibrant communities. She asserted that the United States and the European Union had interfered in SA’s domestic copyright reforms,
pressurising South Africa to delay copyright reform. Fair dealing was limited, inflexible, and did not address the ever-changing digital environment. There is no empirical evidence anywhere in the world that showed that fair use destroyed creative industries. On the contrary, everyone needed access to knowledge. Ultimately the Copyright Amendment and Performers’ Protection Bills were long overdue and to avoid more delays, many issues could still be improved in the process, or addressed in Regulations. Further delays in the Bill would have a costly impact on the economy, creativity and innovation, education and research, and libraries and other information entities, by reducing the access of citizens to information, knowledge, and research in the digital environment. The Committee had to act urgently to pass the Bill or else it would create an incongruent situation, where South Africa’s own copyright laws could not do domestically what they were asking for at the international level.
The Acting Chairperson summed up the comprehensive presentation, thanking her for the numerous and various links that she had shared with the Committee in her slides. He noted that she was categorical in terms of the urgency for the Bills to be passed, giving reasons why she supported the Bills. He appreciated her parallel showing how copyright was used in various countries and presenting the distinction between fair use and fair dealings. It was one of the issues was the comparison between countries that SA had shared history with and countries that SA had not shared history with. It would always be the developing world versus the developed world; the north and the south. Her presentation came from a transformative angle. Was the emphasis on the distinction between the producers, broadcasters publishers versus the authors broad enough or was there a need to do more work by virtue of where the country came from? Was the current Copyright Amendment Bill transformative enough relative to the history of where SA came from in terms of its artists and performers meeting? What were the gaps that had led to the Review Commission in terms of how the copyright and intellectual property regime had evolved?
Ms Nicholson confirmed that he had encapsulated everything that she had said. She had been involved in the process since 1998 and had been campaigning and calling for improvement of the Acts. How long must SA wait to get something that other countries enjoyed all the time? Most of these exceptions, if not all of you come from other countries, especially developed countries, and are enjoying them all the time. What was the reason for holding back? What was stopping them from wanting others to benefit from what they already benefited? The Bills needed to be passed urgently. Regulations could deal with quite a lot of the issues. To go back to the drawing board was totally ridiculous, and frivolous. It would take another 10 years and by the end, new technology and AI would have taken over. They had to deal with the situation. Americans have been using fair use since 1976, although the country had, de facto, used it for the past 200 years and they had never had to change the law because it had become outdated. Fair dealing was outdated. She hoped that reason would prevail. Ms Nicholson agreed with the Acting Chairperson’s summary and called for the passing of the Bills.
Milwaukee University of Wisconsin
Prof Tomas Lipinski explained the relevance of his input: his connections to South Africa went back 20 or 30 years, to when he first lectured in summers at the University of Pretoria. He continued to speak and consult in South Africa annually and spoke on fair use at the University of Cape Town in December 2022.
Prof Lipinski was in favour of the exceptions and limitations that were in the Bill. It was a very forward-thinking and progressive piece of legislation and reflected a modern view of copyright law, which was a balance of rights between copyright rights holders, and users. In summary of the fair use principle, he said that most fair use cases arise in commercial settings where the first factor favoured the plaintiff. Social commentary and parody were transformative and likely fair use. Illustration, example and historical reference points were fair use and criticism, review, etc. were fair but derivatives such as translation, mash-ups, prequel/sequel, etc. were not fair use. It was important to remember that book reviews, outlines, guidebooks, lexicon, etc. were not derivatives and therefore were fair use. Fair use could be a very good thing for any economy.
There were no questions on a fairly technical look at the use of fair use and the Acting Chairperson thanked Prof Lipinski for his presentation.
Copyright Amendment Bill & Performers Protection Amendment Bill
Emeritus Prof Owen Dean, a Fellow of the Chair of Intellectual Property Law, Stellenbosch University and a practicing copyright lawyer had engaged with the Select Committee before and had identified the constitutional difficulties in the Bills – there were at least 60. He had identified the first one in the BlindSA Constitutional Court case, where the Concourt had agreed with him that the relevant clause was not correctly drafted in accordance with the Constitution.
The Acts were certainly in need of updating. The problem was that the present Copyright Amendment Bill had serious deficiencies which could be divided into two categories: substantial substantive deficiencies related to the ideological and intellectual content, which he was not going to address because he supported the views of other presenters, such as Prof Sadulla Kajiker, who had expressed views on that aspect of the Bill. Prof Dean addressed the technical deficiencies in the book, and how they related to the draftsmanship and conformity with legal principles, including the constitutionality of the Bill, and general rationality and intelligibility. Some provisions in the Bill simply did not make sense. He had submitted a detailed commentary on the provisions of the Bill, which he considered to be technically deficient. In his presentation, he addressed the general principles and warned that the law of copyright in SA would be seriously compromised, the rights of creative persons would be vitiated; the integrity of Parliament would be impaired; international treaty obligations would be breached; and the Acts would be unconstitutional and would certainly be challenged in the Constitutional Court (Concourt). The Committee could not, with a clear conscience, endorse or pass a Bill which had been shown to have deficiencies in it.
The Acting Chairperson thanked Prof Dean for bringing those technical limitations to the Committee, noting that he was able to cite how his theories had been accepted by the Concourt pronouncement on section 19D in which several technical deficiencies had been identified. He noted the emphasis on issues such as compliance with the Geneva Convention and the TRIPS agreement (the Trade-Related Aspects of Intellectual Property Rights at the World Trade Organisation). He appreciated the specific and detailed advice given by Prof Dean in the document that he had shared with the Committee.
Composers Authors and Publishers Association (CAPASSO)
Mr Nick Matzukis introduced the Association: CAPASSO represented over 10 000 composers, authors, and publishers, over 9 million musical works locally and 100 000 musical works in Africa and licensed over 200 music users. Digitisation had seen the recorded music industry lose 43% of its revenues within an 18-year period, mostly as a result of digital piracy or infringement which continued to challenge authors and copyright owners and their Collection Management Organisations.
Ms Thando Philison, General Counsel for CAPASSO, presented the legal specifics of CAPASSO’s position. Concerns related largely to the digital environment and a private copy levy were proposed as a more practical way of handling compensation. In section 6A, the definition of royalty and how it was to be determined was highly prejudicial to the very people it sought to protect as far as musical works were concerned. A royalty should be a percentage of the total turnover or revenue generated by the musical work as opposed to gross profit. The process in the Bill would frustrate collecting societies rather than assist them, so she recommended that the music industry should be exempt from the orphan works regime and that CEOs of collecting societies be authorised to manage that aspect.
The presentation was detailed and specific but it was pointed out that specific wording had been suggested in the written submissions that had been already made. Mr Matzukis expressed particular concern about the ways in which the Copyright Amendment Bill would be a breach of SA’s international treaties.
The Acting Chairperson appreciated the detailed presentation and noted the call for flexibility. He agreed that it was quite a complex issue that would require deep consideration.
South Africa Copyright Amendment Bill - Why fair use is important
Dr Dick Kawooya, Associate Professor, School of Information Science, University of South Carolina had prepared a presentation but had to leave the platform as his presentation time slot was delayed and he had another engagement. He requested Denise Nicholson to present on his behalf. The presentation included instances where fair use could be more usefully incorporated into the Bill.
Fair use was particularly important to education and research and would have a positive impact on students, researchers, lecturers, etc. It would support digitisation and the preservation and curation of knowledge.
Fair use had particular benefits for orphan works and permitted educational, research, and non-commercial uses of orphan works. It was important to prevent contract overrides which limited lawful exceptions by third parties. Dr Kawooya particularly welcomed the regulation of collective management organisations to ensure transparency and accountability, which was critical to a fairer distribution system.
There were no questions.
Writers Guild of South Africa
Mr Christiaan Steyn, an IP lawyer representing the Writers Guild of South Africa informed the Committee of the impact of the Bill on writers. He did not go into detailed technicalities as those were addressed in his written submission. Generally, the main concerns related to definitions, royalties and fair remuneration, the 25-year limitation on assignment and contractual freedom and fair use. The Copyright Amendment Bill placed an unreasonable burden on copyright owners to enforce their rights. Economically, the Bill meant that new works would become less available due to a lack of incentive to create; investment would be reduced due to the uncertainty and inability to retain copyright and that would take away the freedom to trade and own from creators.
Ms Theoline Maphuta had been a member of the Writers Guild SA since its inception. She was a performance writer, writing for screen and the Bill did not recognise her role and how it worked in the field of copyright. The Bill weakened the ability of performance writers to negotiate contracts when asking for performance rights in accordance with the actual conditions under which they worked. She saw the Bill leading to a dramatic decline in writers who were the voice of the people and the country.
The Acting Chairperson noted that the Guild supported the Bill but indicated that there were clauses that were definitely not acceptable. He noted that Adv Steyn had made the point that dramatic work was not necessarily audiovisual work. He asked for elucidation on that matter and also for his point of view concerning royalties and remuneration.
Mr Steyn proposed that a definition for “dramatic work” be defined as something different from audio-visual works. AV work could include dramatic work but the two were not the same. He suggested that dramatic work be defined in the Bill as its own type of work. Currently, the Bill tried to add it under literary work, which was not correct. They needed to be defined separately. He applauded the fact that fair remuneration had been addressed as there be certain places where fair remuneration needed to be managed. All he asked was that creators, in his case, the members of the Guild be allowed to negotiate beyond that which was regarded as fair in terms of the law, because it was too limiting for many members of the Guild. It stifled writers who were trying to negotiate fair remuneration under specific conditions, especially where a royalty might not eventuate. He suggested that the Committee consider adding wording such as “in the absence of an agreement to the contrary, the following will be regarded as fee fair remuneration”.
Goodwill King Advertising
Mr GT Mbatha explained that he was an all-rounder involved in music, marketing and advertising. That then put him in a very special position to understand media, to understand the digital world, live performances, the dramatic arts and film as well as animation. He presented several case studies that were his real projects that were plagiarised and the IP stolen. He explained how his business I.P, conceptual plans and strategic business model for an advertising campaign were plagiarised The individual names and company names, brand names and images were provided for the Parliamentary Committee to conduct its own study and investigation to educate and help solve the socio-economic problem that artists, creators, innovators and performers faced daily. After his work had been stolen, he founded the Creative Legal Clinic (Pty) Ltd trading as Goodwill King Advertising.
Mr Mbatha asked for a regulated legal framework with standardised procedures that were legally binding, enforced by the government for artists, creatives, innovators and performers and which was compulsory for the multinational clients and other culprits to adhere to and to sign. However, he pointed out that all the cases he had presented, started with the very same friends. It was the inner circle that would first plagiarize the work, and then the copyright was infringed upon and then the publishing companies got involved. Before one blamed the record companies and the broadcasters, one often noticed that one's friends and colleagues should be blamed first.
The Acting Chairperson thanked Mr Mbatha who was the final presenter of the day.
The final public hearing would be held on Tuesday, 14 March 2023 from 10:00 to 17:00.
The meeting was adjourned.
- PASA Submission
- PASA Presentation
- Media Statement: Fair Use Will Result In Uncertainty If Copyright Amendment Bill Is Passed, Select Committee Hears
- Media Statement: Copyright Bill Proposal To Limit Ownership To 25 Years Harms Industry, Select Committee Hears
- Thulani Goodwill Mbatha Presentation
- South African Guild of Actors Presentation
- Prof Tomas Lipinski Presentation
- Prof Sadulla Karjiker Presentation
- Prof Owen Dean Presentation
- LES Presentation
- Dick Kawooya Presentation
- Denise Nicholson Presentation
- COSATU Presentation
- CAPASSO Presentation
- Baker McKenzie Presentation
- WGSA Presentation
- [B24D—2016] Performers’ Protection Amendment Bill
- [B13D—2017] Copyright Amendment Bill
Mmoiemang, Mr MK
Boshoff, Ms SH
Brauteseth, Mr TJ
Londt, Mr J
Mathevula, Ms B
Moshodi, Ms ML
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