Copyright Amendment Bill & Performers Protection Amendment Bill: public hearings
NCOP Trade & Industry, Economic Development, Small Business, Tourism, Employment & Labour
14 March 2023
Chairperson: Mr M Mmoiemang (ANC, Northern Cape) (Acting)
Video (Part 1)
Video (Part 2)
Video (Part 3)
The Select Committee on Trade & Industry, Economic Development, Small Business, Tourism, Employment & Labour met on a virtual platform to conduct public hearings on the Performers Protection Amendment Bill [B 24D - 2016] and Copyright Amendment Bill [B 13D – 2017]. It was the third and last day of oral submissions from members of various organisations that had made written submissions in response to the Select Committee’s call for public input.
Thirteen organisations were scheduled to make presentations on the day, but one organisation was unable to meet its commitment to appear. The presenters were well-prepared. A few spent some time on who they were and why they had an interest in the two Bills under discussion but the focus of all presentations was on the key issues that impacted each presenter's line of work or role in the industry. A few organisations stressed the need to rid the country of apartheid legislation and to transform the sector. Their focus was largely on a variety of performers. A few presenters called for the complete overhaul and re-work of the Copyright Amendment Bill while the majority accepted the need for change and saw the value in the principles and intentions underlying the Bills but had serious concerns about the fact that the Bill was focused on performers and users but that producers and those who invested very heavily in the industry would be severely impacted by unintended consequences of the Bills. It was strongly suggested that both foreign and domestic investors would not have an appetite for the risks involved in the industry when so constrained by the requirements of the Bills and the consequences should an organisation fall foul of the law.
Key concerns included the restriction in remuneration to royalties which appeared to be unworkable in respect of streamed content. The fact that the Minister had powers to prescribe contractual issues created uncertainty amongst investors and producers. The administrative burden of recording and reporting, when not deemed completely impossible due to the nature of operations, was calculated to cost billions of Rand that would go to administrative tasks and staff and not to performers. The 25-year reversion requirement was denounced as detrimental to both performers and producers and a requirement that would prevent South African performers from being able to perform internationally where all copyright was based on a 50-year period. A key concern was the fact that an economic impact assessment study had not been conducted to determine the impact of the Bill in its current form. Presenters calling for the impact study believed that it would show the negative effect on producers and investors, without whom the industry might well collapse. It would also show that the current approach of one-size-fits-all was unworkable.
Less common additions to the debate included the problems related to broadcasters, particularly in terms of the definition of "broadcast" and the lack of definition of "wire" and "wireless". A new consideration was raised by two researchers into AI (Artificial Intelligence) who stated that in light of the rapid development of AI technology, the legislation had to make it clear that copyright is only attached to human creativity resulting from a human author's skill, effort, and creativity. Text, images, music, software, and audiovisual works could only be subject to copyright where there were human authors. They requested a clause establishing that A! works could never be copyrighted.
Following each presentation, the Chairperson summed up the presentation and asked a question related to one of the key issues in that presentation or that had been raised about the Bills generally.
Having been elected previously to chair the Committee until the return of Mr Rayi, 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 Joint Academics
Dr Sanya Samtani, Senior Research, Mandela Institute, University of the Witwatersrand, together with
Professor Klaus Beiter, Faculty of Law at the North-West University, made the presentation on behalf of a coalition of copyright and constitutional law experts from various institutions.
Dr Samtani focused on amendments related to persons with disabilities and realising constitutional rights– locks on digital works for people with a visual disability, noting that the Constitutional Court judgment stated that copyright reform to ensure that people with disabilities had access to accessible format works and were able to convert works into accessible format was urgent. She submitted that the approach that considers the impact of statutory copyright on the Bill of Rights had been correctly taken by the National Assembly and that considered as a whole, an appropriate balance had been struck between users and creators in the Bill. Dr Samtani made several specific recommendations, including that section 19 D be amended to remove barriers to sharing accessible format copies among the disability community; section 28P(2) be amended to align constitutionally and to include the phrase “informational analysis” in section 12A(a)(i).
Prof Beiter addressed minor amendments related to fair use and technological protection measures– research. He stated that the Group welcomed the retention of the Fair Use provision as currently used in the Bill. He proposed minor amendments for constitutional compliance in respect of technological protection measures.
The Acting Chairperson found the presentation quite succinct, but he asked about Prof Beiter’s comment on fair use versus fair dealing. He said that there was not a major difference between the Copyright Amendment Bill and the US, but what was his point when he suggested that countries that South Africa had a history with, were not using fair use, but fair dealing?
Prof Beiter explained that South African copyright law was very much oriented towards English law and if one looked at European Union law, they envisaged systems of fair dealing but for cases of text and data mining, both those systems had to amend the law to make provision for that. If one had a fair use provision, like the US, or hopefully South Africa soon, then cases such as text and data mining might be covered by the Fair Use provision. It was not 100% sure that they would be as there were differences of opinion in that regard, but they were much more likely to be covered under fair use than if one were working with Fair Dealing provisions. The reason he had suggested that text and data mining be expressly included was just to make sure it was there because one saw during the Covid crisis just how important research and the search of vast amounts of information were to come up with solutions. And without such a provision such searches might potentially infringe on copyright. So that is a difference. That difference does not concern the fair use inquiry. The fair use provision was, in a sense, just another version of the three-step test itself. If one looked at the treatise by Martin Senftleben, he wrote in his monumental work on the three-step test that, in a sense, the fair use test was just another way of expressing the three-step test, just with the advantage that if one had a fair use provision, one might look at those jurisdictions that worked with fair use to see how they were dealing with it, which was not to say that one had to adopt what they are doing. At least, one had a body of knowledge was available, whereas working with a three-step test was like really working with a few sentences and that was all one had.
Dr Samtani added that the CAB (Copyright Amendment Bill), specifically section 12A(b) specifically listed the factors that had to be taken into account when filling out the content of fair use. So for example, if, in the future, one would add an additional use that's not listed under 12 A, then the following factors in 12A(b) must be taken into account: the nature of the work, the amount and substantiality of the part of the work that was affected in relation to the whole work, the purpose and character of use, whether the use serves a different purpose from the original work, whether that purpose is of a commercial nature or if it is of a non-profit nature and, finally and probably most importantly, the substitution effect on the market. So if it has a great substitution effect on the market, then it is likely that that use is not going to be considered fair. So just to respond to the anxieties around the American-style fair use being broad, the South African version of fair use in the CAB adopts is a hybrid version. So it has specific factors that are enshrined in legislation to prevent any sort of overbroad inclusion or to prevent any sort of effect on the market. I'll stop there.
The Acting Chairperson noted the emphasis put on the Bill of Rights, and particularly, the implications of the latest Concourt (Constitutional Court) judgment. He asked about the arbitrary nature of the two Bills, particularly, in terms of the protection of authors’ rights. Would the nature and requirements of the Constitution, and the consequent obligations on government, be sufficient to allay any fears around section 25(1), of the Constitution that relates to deprivation of property because copyright by its nature was an intellectual property?
Dr Samtani stated that section 25(1) had been interpreted by the courts as a right against arbitrary deprivation of property and so the specific test there was a seven-step test that the FNB judgment in the Constitutional Court developed. Now, if one applied each of those legs of the test, the first question was to determine whether the interests at stake did constitute a form of constitutionally protected property. That question had been left open concerning copyright. The next test was the arbitrariness test checking whether there had been a deprivation of any incidents of ownership or enjoyment of that particular property by the owner of the property. And if one assumed that there had been some degree of deprivation, the next test was an arbitrariness test. The Constitutional Court had developed the arbitrariness test in quite a lot of detail and many different steps had to be undertaken to prove that something was indeed an arbitrary deprivation. One of those tests was the test of sufficient reason and the Concourt had described in that test of sufficient reason in its jurisprudence over the years, that where a particular deprivation served to give effect to a right in the Bill of Rights, it was very unlikely for it to be held to be arbitrary in the first place because there was already sufficient reason that could be demonstrated.
She highlighted that there were several rights highlighted in the written submissions, and she could list them as well. About artists and creators, it was their right to a decent standard of living that was protected by the CAB; the right to live and work; a right to their livelihood, and particularly in the South African Constitution, it was a right to choose their profession and trade under Section 22 of the Constitution. That was promoted by the CAB. Concerning people with disabilities, it was a right against discrimination, a right to equality, a right to dignity, a right to access cultural life, and the right to access language. It was also the right to access education. And that also applied to students. It applied to people like academics in terms of their right to embody education, as well as to receive education, including lifelong education. And there were several others, for example, the right to education was also protected by the cultural heritage protections in the CAB, particularly because it ensured that libraries were able to better protect their collections and everyone had access to books, largely through libraries.
Prof Beiter added a comment on the concerns regarding the protection of property. Although that provision was very important in the Constitution, one had to look at what international law like European Convention on Human Rights said. It was important to note that the International Covenant on human rights did not include a provision on the protection of the right to property. Another consideration was that all human rights ultimately had a basis in human dignity. So the central criterion to ask if a property was protected, was to what extent was necessary to protect human dignity and to what extent was it not necessary. To that extent, the protection of property became, in his view, a matter not so much of the Constitution, but the rest of the legal order, and that was important for constitutionally weighing the importance of interests, such as access to knowledge, education, science versus the property interests of others.
Prof Neiter added a last point that he hoped would not open another can of worms. An important way of protecting the interests of authors and creators, which was essential because that was a human right in terms of international law, was the contract, a strategic instrument used in the industry of copyright between publishers and authors. That should not be neglected. That was the point where authors and creators made their money, not subsequently.
Presentation by Kirstel Birkholtz-Gaddin
Ms Kirstel Birkholtz-Gaddin was a musician who wrote and recorded music and made music videos. She believed that she was able to represent the concerns and the views of independent musicians, up-and-coming musicians and maybe even musicians starting out. The copyright law touched musicians in terms of digital productions and royalty income because the online space was huge and a work could go viral in moments. A digital income was vital to the independent artist, especially considering the costs that went into producing a work. One was looking at anywhere from R1 000 to R10 000 and up to produce a song. That would include the recording and any session work and getting it onto various platforms, but before any of the vitally important marketing of the song was taken into consideration. Marketing could be as little as $1 a day to get something onto an international radio station or R7 000 per song on a local radio station. If the song were played, it would take months to be paid out those royalties due to the musician.
Another point that concerned her was that the US had thousands of cases of fair use where a judge made law, thousands of court cases would be generated and lawyers would make the money while the artists would be disincentivised and prejudiced. the point was that the proponents of fair use claimed that it was necessary to future-proof our law and respect our rapidly changing technology. The current section 13 of the Copyright Act enabled the Minister to pass regulations to do just that.
Many, many creatives and artists, up-and-coming small operators, hopefuls and people wanting to go into music, welcomed updates in terms of technology, and a copyright law that would fit in with the modern, modern world. However, there were concerns as to what it would do to their creative rights and the motivations for them to continue to create material. Artists would like to have protection in terms of copyright and how the works were used and monetised.
There were no questions for Ms Birkholtz-Gaddin.
ReCreate South Africa - Mr Cachton was not on the platform.
Western Cape Government Department of Economic Development and Tourism
Mr Benson Mchunu, Business Researcher, Department of Economic Development & Tourism, Western Cape Government made the presentation.
Mr Mchunu spoke of tension between commercial investors and creators. He noted that there was no publicly available regulatory or socio-economic impact assessment as would be expected prior to any legislation being determined. Impact assessments offer an evidentiary assessment of impact, with potential unintended consequences considered. The Publishers’ Association of South Africa (PASA) raised concerns in 2022 and commissioned PriceWaterhouseCooper to conduct a study. This had shown the Bill will lead to a 33% reduction in book sales and the industry would lose 30% of its jobs. He proposed that a comprehensive SEIA (socio-economic impact assessment) be undertaken to determine the economic impacts of the Bill in its current and future forms.
Mr Mchunu referred to several provisions that caused concern, including the general exceptions from copyright protection in section 15 and section 12D in which the provision was too broad, amounting to arbitrary deprivation of property.
The major concerns were the lack of a socio-economic impact assessment, arbitrary deprivation of property and the violation of the right to freedom of trade. However, he acknowledged that while the Bill was developed to align South Africa’s copyright law with the digital era and multilateral developments, improve access to learning resources and protect creators and their livelihoods from commercial exploitation, it was difficult to “get it right” with a Bill of such nature.
The Acting Chairperson understood the competing interests that were at the centre of the conversation. He asked Mr Mchunu for his opinion on the latest judgment in the Constitution that had determined that the current Act was not constitutional.
Mr Mchunu stated that it would be difficult to find anyone who did not agree that the current Act needed to be amended and that it had been a pressing need for several years. Whether a person was on one side of the spectrum as an artist or as a major operation broadcasting or record label or as an activist in the education sector, everyone agreed that the current Act needed to be aligned with the changes that had occurred with the digital era and with South Africa’s ongoing international commitments.
The only issue was that there needed to be some kind of balance in terms of the impact the Bill would have, and the extent of that impact. It would be very difficult to keep everyone happy. If he could choose one point to highlight from the submission of the province, it would be the need to undertake a comprehensive impact assessment to determine the impacts firstly, and also to weigh up what would provide the most benefits for society as a whole. So it was a question of juxtaposing economic interest against social outcomes, although the two were obviously interlinked. One could not have the social outcomes that everyone was looking to have with the Bill if it came at the cost of being able to attract investment into the country, especially the major international streaming sites that were currently investing in the country and providing benefits to everyone, including those creatives and artists. It was about striking that balance between protecting and also creating an enabling environment and the only way to know if that balance would be achieved was to have an assessment of what the actual impacts would be on the economy and society as a whole. What was the intended outcome and what, if any were the unintended consequences? An assessment would allow everyone to make an informed decision on how to proceed with the Bill.
Mr Collen Dlamini, Group Executive, Corporate Affairs, MultiChoice was accompanied by Mr Aynon Doyle, Head: Policy Analysis & Research, M-Net, Ms Lara Kantor, General Manager: M-Net Regulatory and Miss Wendy Rosenberg, Director at Werksman’s Attorneys. Mr Dlamini introduced the presentation, noting that MultiChoice and M-Net welcomed the opportunity to make submissions on the Bills as they were major investors and users of copyright. The copyright framework was therefore of critical importance and he fully agreed that South Africa’s copyright regime had to be updated in line with the Bills' objectives. However, flaws in the Bills meant that the objectives were unlikely to be met and instead damage would likely be caused to the industry.
Mr Doyle urged that the interests of investors and creators should not be seen as competing interests as everyone wanted to see a thriving and sustainable local production sector. However, that required an enabling legislative environment and in their current form, the Bills did not provide such an enabling environment and would harm those it sought to protect. A start would be to delink the two Bills. Key issues in finalising the Performers’ Protection Bill would be to make reporting requirements and fines more reasonable and to ensure fair contractual terms for performers without a “one size fits all” approach. Performer issues should not be in the Copyright Bill. The CAB had to address internet piracy which was a global threat to the copyright industry and everyone in the value chain, including creators.
Ms Kantor referred to some of the regulatory requirements, adding that MultiChoice and Mnet had submitted very specific proposals in the written submission.
The Acting Chairperson had one question. There was an assertion that the introduction of fair royalties and fair use was in the best interest of the wider section of our community and that countries like the USA and the EU countries had fair use royalties and a fair use provision, as well as exceptions. However, he had a sense that MultiChoice had reservations about that. There was a concern that the promotion of science and useful arts knowledge through a temporary monopoly for artists and creators to protect their works might impact their livelihoods. The key issue for him was how to balance that because the starting point for MultiChoice was that indeed there was a need to review the Copyright Amendment Bill and the Performance Protectors Amendment Bill, but the challenge was the issue around disincentivising the work that MultiChoice commissioned and the change in the supply chain between the producer and performers. MultiChoice commissioned the producers to produce a series, so how did the entity ensure that there was a broadening of the sector in a manner that confronted the monopoly of the industry itself?
Mr Dlamini appreciated that the Acting Chairperson was trying to understand more about how the industry worked, and how to make sure that it continued to thrive. He had a very difficult task creating that balance and walking that tightrope. He requested Ms Wendy Rosenberg from Werksmans Attorneys to respond to the question.
Ms Kantor suggested that his point showed real wisdom because he was asking about balance. That was what MultiChoice had come to say: it was not about us versus them but about accommodating everyone in a balanced way. So how did one protect everybody in the creative value chain in a way that did not destroy that value chain so that there was nothing available to reward the creators of work? The presentation had not dealt with fair use because of the time available. The view was that fair use was an American concept that had been imported into South African legislation, and it went overbroad. South Africa had a fair dealing principle in its existing copyright legislation. And that worked. Sometimes a good intention has negative unintended consequences. So the one example, which had been given earlier in the process was the question of what incentive an author would have to write a textbook if that textbook can, under the fair use banner be used by every single student. Authors had an immense value to add, but they would only add that value if they were to be rewarded for that, so she was quite wary of the fair use proposals that had been introduced. They were an American import and did not fit within the South African framework. She believed they would have serious implications for the rewards and incentives that authors had to create.
Concerning the question of how the necessary balance could be achieved, Ms Kantor stated that the MultiChoice presentation had tried to do was to say the organisation understood what Parliament was trying to achieve, but its concern was about the ‘how’ because in how the Bills sought to achieve certain objectives, they were destroying a lot of value in the pipeline. MultiChoice recognised that there were very serious problems with this legislation and hoped to constructively help to achieve those objectives in a more achievable way. The minimum amendments the organisation had presented are not about rewriting the legislation, they gave very pointed provisions that could be tweaked and by doing so, the Bills would still protect authors and creators, but in a way that did not decimate the entire value chain. It took a huge amount of risk and money to invest in a production that one did not even know if it would work. The “Survivor” example, which was filmed in the Eastern Cape, showed just what could be achieved with the necessary finance and a lot of collaboration. The industry was not just about actors and scriptwriters; caterers, accommodation, lighting, and production were part of what went into one single production. South Africa had to make it possible for people to come and invest to get local talent on screen and grow the sector. The only way in which that could be done was by fairly rewarding everyone in the value chain.
Ms Kantor added another example. One example is fair and equitable remuneration. So at the moment, there were royalty provisions in both the copyright legislation and the performance legislation. MultiChoice was not saying don't reward performance because the performance had to be fairly remunerated. But the duplication should be eliminated; it did not belong in the CAB as it was already dealt with in the Performers’ Protection Amendment Bill, and then provide for royalties or equitable remuneration. By inserting three words “or equitable remuneration” the Bill would ensure that performance was equitably remunerated without unduly stifling people's flexibility to negotiate and agree on contracts that work for a particular context.
Mr Doyle responded to the question on fair use versus fair dealing. That was not something MultiChoice/MNet dealt with extensively in the written submission as it had been dealt with by other parties, and the intention was to concentrate on that specific sector, but one of the specific things to highlight was that the current South Africans copyright regime was a fair dealing one and that was based on the British system, which was also fair dealing. So it reflected the historical development of the country to a certain extent in that the legal system was aligned with the British one. And that being said, the British system had been amended to address the Marrakesh Treaty by including the narrow list of exceptions that were permitted for the visually impaired, and it was amended again in 2014, to address texts and data mining, for specifically non-commercial purposes, because of the developments around AI, and data mining on the internet.
He explained that the concern was with the hybrid approach, the words “such as” provided a list, but the list had not been constricted to only those examples on the list – it was very wide. From the perspective of legal certainty, which fair dealing provided, fair use would require numerous court cases over the next decade to set those narrow exceptions in line with what copyright was about, i.e. the legal rights created by the state. One of the reasons for wanting fair use was because the list was too narrow in a world that saw rapid changes. If CAB had a narrow list, what happened if the environment changed, especially in the digital environment, where it changed every three years? How did CAB address the developments of technology? One way to do that, and still keep a narrow list would be to empower the Minister to make regulations to add to the list, but that should be subject to the three-step list. So it should not be overbroad, it should not conflict with the normal exploitation of these rights and it should not prejudice the legitimate rights of the copyright holder.
The Acting Chairperson explained that the difference between the UK and the USA was that the UK was a Parliament-based country whereas the USA recognised its Constitution as the supreme law of the country as does South Africa. SA was a constitutional democracy. That was the difference or distinction between fair dealing and fair use systems. That evolution from a parliamentary system to a constitutional democracy might explain the symmetry between the systems and even the intellectual property regime. South Africa no longer had a parliamentary system, which might explain the emphasis on the right to dignity, and the freedom of trade, but more than that, the latest Constitutional Court judgment in the BlindSA case reflected the evolution in South Africa and where the country came from and where it was going.
Copyright Coalition of South Africa
Dr Joel Baloyi, Coalition Member, informed the Committee that the Copyright Coalition South Africa (CCSA) was a broad church of parties from the publishing, music, film-making, and other creative industries with a keen interest in policy matters and developments relating to copyright and performers’ rights. CCSA found that the Bills were based on a faulty foundational and conceptual premise with an emphasis on "users' rights" and a refusal to consult experts with an understanding of industry matters. That meant there had been no proper consultation with rights-holder groups. The fact that the Bills were referred back by the President was no mean matter.
Ms Chola Makgamathe introduced herself as wearing two hats: Chairperson of the Copyright Coalition of South Africa and General Manager of Legal Services at SAMRO (Southern African Music Rights Organization). She supported the Amendment of the Copyright Act as it was necessary to bring it into what was happening in line with copyright use and copyright content, consumption of content, and everything else that was happening within the creative industries. Ms Makgamathe asked the Committee to share the basis for the IP policy in the country because it appeared that a lot of the recommendations had an emotional basis while some of them were ego driven and the justification for some of them was completely unknown.
In conclusion, she implored the Committee to look at a very real problem in the industry - the issue of piracy was a huge issue, particularly for CCSA members as their content had been exploited online, on various sites that popped up and were controlled in jurisdictions across the world but was absent in the Bills.
He asked Ms Makgamathe what she thought was driving the Bills.
Ms Makgamathe replied that looking at the history of the Bill, it had been a fairly divisive Bill with inputs coming from a very pro group and some very anti groups. She was just being facetious about what was driving people.
The Acting Chairperson thanked the presenters for a very detailed and comprehensive presentation with some interesting metaphors. He summed up, noting the issue of an impact study and the problems of one-size-fits-all which would impact differently on musicians, actors, etc. He noted the question of users versus copyright owners and assured her that the Farnham Report was the original basis for the Bills.
AI and the Copyright Amendment Bill – Research ICT Africa
Dr Andrew Rens, Researcher and Software Lawyer and Mr Hanani Hlomani, Researcher and Legal Consultant, were both AI (Artificial Intelligence) experts.
Dr Rens provided an explanation and background of AI to the Committee.
Mr Hlomani addressed the question of copyright for AI outputs. Copyright was intended as an incentive for humans to create, to produce text, images, video, and software. AI did not need copyright as an incentive to produce. In July 2019, Microsoft invested US$1 billion in Open AI (ChatGPT). In January 2023, Microsoft invested an additional US$10 billion but AI processes did not resemble human creative processes as they were probabilistic. Most AI systems which were used to generate creative output had been trained on a very large number of creative inputs. AI systems produced outputs that mimic their creative inputs, risking an
undercutting of the ability of artists to generate earnings. It was important to amend the 1978 Act to clarify that there was no copyright in AI outputs. AI technology was developing very rapidly and legislation had to make it clear that copyright is only attached to human creativity resulting from a human author’s skill, effort, and creativity. Text, images, music, software, and audiovisual works could only be subject to copyright where there were human authors.
There were no questions arising from the presentation. The Acting Chairperson summed up that the three questions posed were very important. He also noted the clauses to which the presentation had referred.
Dr Rens stated that he had also been a member of the Joint Academic Opinion but the presentation just given was a separate matter as it was about AI specifically. When work on the Copyright Bill began, A! was not even on the horizon but the Committee had the perfect opportunity to address the issues of AI in the Bill before it became a problem.
There were no questions.
Gender Equity Unit, University of Western Cape/ Ikhwelo Healers Collective/ Voices of Azania
Dr Fikile Vilakazi, Political Analyst, was from the Ikhwelo Healers Collective. She introduced her fellow presenters: Ms Limpho Makapele, Student Projects Officer with the Gender Equity Unit at the University of the Western Cape and Ms Thilda Jack Yoppe, Director at Voices of Azania.
Ms Makapele provided an extensive summary on the position and role of the Gender Equity Unit. In linking to the Bill, she stated that fair use would ensure that the Unit staff was able to share information with students, academics, and society in ways that promoted academic and intellectual freedom and equity, given the nature of the content produced by the Gender Equity Unit and the University at large. It was the Unit’s firm conviction that if the Bill were passed into law, it would contribute towards a more humane society that was deeply embedded in the values enshrined in section 9 (3) of the Bill of Rights. On the principle of retrospective compensation, the Unit guarded against the exploitation of artists and creators and their related generations. Artists should be compensated where needed retrospectively to recognize their dignity, ensure equity and enable justice. Section S 6A (1) addresses what we are talking about concerning the compensation of royalties.
Ms Yoppe stated that the members of the Voice of Azania agreed almost with everything in the submissions before the Committee by Recreate, and would like to plead the change of the outdated apartheid and colonial legislation that impeded the rights of South Africa’s emerging general artists, engineers, entrepreneurs, and others.
Dr Vilakazi presented the approach of the Ikhwelo Healers Collective. The Collective believed that South Africa had a responsibility to part ways with this violent colonial and apartheid legislative era whose aim had been to subjugate and exploit creations and knowledge of those who were seen as unequal to others, less than human and therefore second-class citizens. The creative industry and related protections continued to benefit former colonial masters and their entourage in the manner in which big business, and multinational corporations, most of whom were white, male, former colonisers, had continued to exploit and benefit from skewed legislation.
There were no questions. The Acting Chairperson appreciated that all three presenters were very explicit in their support for the two Bills, emphasising the fact that the current Bills were outdated, they were a legacy of the past and served a particular class and therefore, the amendment was urgent. He noted the Azanian perspective on fair use and the support given to it.
Recording Industry of SA
The Recording Industry of SA (RiSA) was represented by Mr Sipho Dlamini and Dr Pierre Rautenbach. RiSA represented approximately 20 000 independent record companies – 95% of which were owned by independent, self-releasing artists, as well as three multinational companies. Mr Dlamini reminded the Committee that the local music industry landscape had changed substantially in the last few years from being dependent on a few brick-and-mortar outlets that would not accept self-releasing artists to Digital Service Providers that distributed all record labels, big and small, including self-releasing artists and the global industry was just starting to recover from digital piracy. That was the new scenario that the Bills had to cater for.
Dr Rautenbach presented a list of the principal concerns, although it was by no means exhaustive:
- Failure to conduct an economic impact assessment study and trying to apply one-size fits all provisions.
- Open-ended exceptions and Fair Use.
- Impact of AI on the SA creative industry.
- Powers of the Minister to prescribe contractual terms.
- 25-year reversion of the performer consent.
The Acting Chairperson referred to the slide on the 25-year reversion and the fragmentation of performers’ rights. He asked whether a new assignment or an exclusive license was something that was deemed to be doable or whether it was far-fetched.
Mr Dlamini stated that it would be very complicated to achieve that because one had to imagine the unfortunate scenario where one of those performers who had performed together had passed on or had relocated and moved to another country and was no longer living in South Africa, it would mean that being able to fully commercialise that work would be paused until either the surviving estate was contactable and had gone through the process of approving or agreeing to the terms or if it was impossible to locate that person or the estate, it would mean that the work would stop being commercialised. If those rights were to be exploitable, for example, a song that had four people writing and one person performing, at the time of renewal or the time of expiration, all those people had to engage in the signing of a new contract and if just one person were not contactable, then that work was no longer exploitable. Furthermore, if one of those people became a hostile negotiator, and made an unreasonable demand, it prevented everybody else from being able to benefit commercially.
Ms Ziyanda Buthalezi-Ngcobo, Country Lead: Regulatory Affairs and Public Policy, Netflix, was accompanied by Mr Bradley Silver, Head of IP Policy, Netflix. She explained that Netflix was a streaming service with 230 million members in 190 countries enjoying TV series, documentaries, and feature films across a wide variety of genres and languages. It was launched in South Africa in 2016. She expressed Netflix’s concerns about the negative effect the Bills would have on the Audio-Visual industry, although Netflix supported the objectives of the Bills and the concept of fair compensation. Since 2016, Netflix had invested over R2 billion in local South African content and talent and at the 2022 4th Annual South African Investment Conference, Netflix committed to investing more than R900 million into the local AV sector. Over 1 000 FTE (full-time equivalent) jobs were created in a single project. She provided further details of the economic impact of Netflix on the SA economy.
Mr Silver explained that the royalty obligations were likely to be detrimental as they would restrict upfront lump sum payments which many creators depended on and which was practised in the industry. Moreover, subscription services were unable to monetarise individual titles. Producers would pay less because they would not be gaining the value of the full term of their rights under the 25-year reversion. The reporting requirements simply could not be met. Compliance would be impossible given the thousands of works and millions of users and even if it were possible the administrative costs for producers would be very significant and run into millions of Rand, reducing funds available to pay performers.
Noting that the Bills had failed to consider differences within the creative sector in which the AV sector, music, publishing, etc. operated differently, Netflix suggested a flexible framework was needed. Alternative approaches were offered for all those clauses that were considered unworkable.
There were no questions from Members. The Acting Chairperson noted the concerns regarding onerous obligations and the rigidity in terms of ministerial powers. He appreciated Netflix’s contribution to the sector and agreed that the Committee had to find a way to balance the various sectors and role players.
Ms Anne Kang, Principal: Economic Development Policy, Amazon (Amazon Studios and Prime Video), was accompanied by Ms Lindi Vundla, Legal Services, Amazon.
Amazon currently employed over 7 000 people in various business lines. Amazon launched Prime Video South Africa in December 2021, and since then Prime Video had licensed over 150 local South African titles from producers and distributors. In 2019, Amazon Web Services (AWS) launched the AWS equity equivalent investment programme in South Africa as part of the country's broad-based black economic empowerment program or B-BBEE. As of December 2020, AWS attained a level one triple B EE certificate. The AWS equity equivalent investment programme planned to invest more than R365 million towards the development of 100% black-owned local small businesses and the information and communication technology sector from 2020 to December 2026.
Amazon fully supported the Committee’s desire to provide for the protection of artists as it aligned with Amazon’s interests. However, the Bills set forth obligations that were not consistent with local and global industry standards and practices, and that could result in a restrictive regulatory environment that discouraged, rather than incentivised, further investment in the local industry. The main concern was that the Bills did not take into consideration the economic models that supported the production of audiovisual works, which would hamper the financial viability of such content. The problematic areas were: royalties, the 25-year reversal of rights, enabling the Minister to set terms of trade and the requirement of registration and reporting of all commercial uses of every work would be, if enacted, administratively burdensome and unworkable, and imposed unnecessarily excessive penalties for non-compliance.
The Acting Chairperson raised the issue of the unconstitutionality of the current Copyright Act and asked for the view of the presenters on the point. Ms Vundla responded that Amazon had noted the court’s decision and it was very important for the company that works were accessible to all people of all abilities. However, the company had not prepared a formal statement specifically on that and she requested permission to revert to the Committee in writing.
The Acting Chairperson accepted that proposal. He pointed out that universities supported the exceptions contained in the Bills. What was the position of Amazon? Did it support the position of the universities that viewed the Bills in a positive light as it made it much easier for them to access reading materials, particularly in terms of reproduction?
Ms Vundla stated that she was so busy preparing to speak to the Committee that she had not attended that presentation even though it was open on her computer. Amazon did not have a specific position on that point but if he would like Amazon to delve deeper into that, she could come back to the Committee in writing. As mentioned before, Amazon did believe in accessibility.
The Acting Chairperson requested a response in writing.
National Association of Broadcasters (NAB)
Ms Nadia Bulbulia, Executive Director, and Julia Sham-Guild, Head of Legal and Regulatory Affairs, made the presentation on behalf of NAB, a voluntary association formed in 1993, representing all three tiers of broadcasting (public, commercial, and community), signal providers and industry associates. Detailed submissions had been made at every step of the process. Their concerns were similar to those expressed during the day. Areas raised in NAB’s previous submissions such as the constitutional concerns, the wide discretionary powers afforded to the Minister, and the need for adequate consultation on implications for various sectors had not been addressed. Ms Bulbia noted that the implications of the Bills were enormous. She suggested that the PPAB could be severed from the CAB, that the duplication in the CAB and PPAB should be removed and there should be a focus on finalising the PPAB urgently.
Ms Sham-Guild looked at the problems relating to the definition of "broadcast" as defined in the CAB, especially that it differed from that used in the Audio and Audio-visual Content Services Policy Framework and that the Electronic Communications would most likely be amended to incorporate that definition. The lack of definition of the terms “wire” and “wireless” could lead to confusion and interpretation issues and “internet access” was not specifically referred to. Other issues raised by NAB had been raised by presenters throughout the day.
NAB encouraged the Select Committee to consider a wholesale revision and re-drafting of the CAB and to delink the PPAB from the CAB process to ensure clarity for members of the creative industry. The successful adoption of a viable CAB and PPAB was fundamentally important to broadcasters and to the sustainability and success of the creative industry as a whole.
The Acting Chairperson summed up what NAB had said in the presentation, indicating that he hoped there would be a point of convergence that would meet all the expectations of all the players. There were no questions.
Ms Kathryn Kure, Representative to the Global Network Council/ Chapter Governance and Ethics, Creative Commons South Africa, and Brigitte Vezina, Director of Policy, Open Culture and GLAM, Creative Commons International represented Creative Commons on the platform.
Kathryn Kure informed the Committee that she and Paul West headed up the South African Chapter of Creative Commons, a global organisation committed to enabling all things open and stewards of the Creative Commons Open Licence suite and tools.
Ms Vezina was a copyright lawyer with two decades of experience in the field of international copyright law, including 10 years working as a legal officer at the World Intellectual Property Organization (WIPO). She explained how Creative Commons (CC) was working for open participation. CC promoted a “no permissions required” system. Open did not mean free in all instances. She strongly supported fair use which would increase access to knowledge. She urged the Committee to support the inclusion of exceptions and limitations and uphold the public domain in South African copyright law. No one should need to be burdened by having to abide by out-of-touch, one-sided, and unfair copyright rules. A biased copyright system favouring large industry interests guided solely by profit could only lead to the erection of more barriers, potentially slowing South Africa’s economic, social, and cultural development. The South African Copyright Amendment Bill would propel South Africa into the digital age and enable South African citizens to enjoy their fundamental rights to education, cultural participation, freedom of expression, and access to knowledge.
The Acting Chairperson thanked the presenters for supporting the Bills.
He noted that Mr Cachton from ReCreate South Africa was not on the platform. The Committee would consider the organisation’s written submission.
The Committee Secretary stated that a meeting had been planned for 28 March 2023 to discuss the Constitutional Court judgment and to hear the response of the Department of Trade, Industry, and Competition to the public submissions. However, the parliamentary programme had changed and so the Committee programme had to change and the meeting would now be held on the original date of 16 April 2023.
The Acting Chairperson thanked Members of the Committee for their close attention throughout the day and the presenters for raising key issues that required the attention of the Committee.
The meeting was adjourned.
- Creative Commons SA Submission
- Creative Commons SA Presentation
- Amazon Submission
- [B24D—2016] Performers’ Protection Amendment Bill
- [B13D—2017] Copyright Amendment Bill
- RIA Presentation
- SAMRO Presentation
- University of the Western Cape Presentation
- Recording Industry of SA Presentation
- Netflix Presentation
- MultiChoice Presentation
- Joint Academic CAB Presentation
- NAB Presentation
- Kristel Birkholtz Presentation
- DEADT Presentation
- CCSA: Copyright & Performers’ Rights Amendment Bills
Mmoiemang, Mr MK
Apleni, Mr T
Boshoff, Ms SH
Brauteseth, Mr TJ
Londt, Mr J
Mamaregane, Ms ML
Mathevula, Ms B
Moshodi, Ms ML
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