Music industry professionals have written an open letter to the president of South Africa on the adoption of the Performers’ Protection Amendment and the Copyright Amendment Bills.
On the 28th of March, 2019, the National Council of Provinces (NCOP) took a resolution to adopt (without any changes) the Performers’ Protection Amendment and the Copyright Amendment Bills. Broadly speaking, both Bills had been crafted as a measure to remedy historical injustices around the remuneration of creatives for the commercial exploitation of their work.
The adoption of the Bills represented a watershed moment for the South African creative industries and in one fell swoop, performers – specifically actors, were accorded rights over their own image that they had historically been deprived of. The right to earn syndication fees for content broadcast in other countries and residuals from TV series broadcast internationally, were for the first time, within reach for South African actors.
In a country that is internationally renowned for the richness of its cultural offerings – whether in music, film, theatre, or the visual arts, the significance of this development cannot be underplayed. There is no disputing that South African art is enjoyed and consumed on a world stage and as such, ensuring that artists are compensated appropriately is a major part of strengthening and empowering the creative industries.
Inasmuch as the Bills were constructed to empower creatives, however, as music industry professionals, we have identified certain troubling aspects that are contained in both the Bills, that ironically, serve to deprive us of the very rights it seeks to afford us.
This Open Letter is an appeal to you Sir, as State President, to recommend a review of certain aspects of the Bills, which although it provides actors with rights that they have been agitating for, also contains clauses that prejudices music industry professionals and authors in many worrying ways, and whose concerns have for the most part been ignored. The Bills, cannot seek to selectively favour one creative industry and prejudice the other. For the purposes of brevity, we have highlighted three problematic clauses to illustrate the point, as follows:
- 25 Year Limit on the Performer’s grant of rights (Performers Protection Amendment Bill) – this amendment severely impacts the manner in which we can negotiate agreements that work best for us.
- In simple terms after the 25-year period elapses, no agreement would exist between the parties which would govern the exploitation of the recordings. All the parties involved in the recording of the work would have to reassemble to enter into a new agreement with the rights holder – in many cases, the record company. In the event of no agreement being reached, or the parties cannot be located to negotiate a new agreement, that piece of work may no longer be commercially exploited. The impact of this is that the recording will no longer be available on any platform including amongst others radio, digital music services and TV broadcasters files, and cannot be utilised on a TV and film soundtracks, or in any other way, for commercial gain. None of the parties involved in creating the music would be able to earn revenue from it anymore. As you can imagine, the impact of this would be devastating. What the Bills “seek to redress” would affect artists incomes in indescribably damaging ways. It would also affect record companies’ willingness to invest in the music industry, and new artists – if after 25 short years, there’s real potential for their return on investment to abruptly end.
- Sharing of royalties with non-featured performers (Copyright Amendment Bill) – this clause relates to recorded audiovisual performances (music videos, etc), and again, seeks to protect the rights of creatives who participate in the project, but it falls woefully short. If this amendment is adopted, every individual who features in the recording would be afforded a royalty payment.
In theory, this sounds very admirable, however, there are a number of problems that arises from this amendment. Firstly, a music video includes many performers such as dancers, featured actors doing cameo roles etc. The current practical arrangement is that the dancers and actors prefer to be compensated with a once-off fee for their services. They do not want to be part of the waiting period where the record company first recoups their investment, and then pays out royalties – this could take years, and decrease their earnings significantly. The current proposal does not allow them to negotiate for a once-off payment, they are forced into a royalty arrangement that they don’t necessarily want.
Secondly, in practical terms, this would mean that even extras in a music video (crowd scenes, etc) would be entitled to a royalty payment. Not only does this become extremely administratively burdensome in terms of locating each individual to pay out, it is in no way is a real reflection of their contribution to the work in question. The effect would be for musicians to significantly reduce, or even eliminate the number of dancers, actors and extras they utilise in their music videos. The impact on the production industry would be devastating.
- The extremely broad Fair Use exceptions contained in both Bills – these exceptions literally allow our work to be used without compensation and with little to no regard for our copyright. Whoever is using the work can argue that their exploitation of our work falls under the ‘fair use’ clause – and the onus is on us, as creatives, to prove through a legal process, that this isn’t the case.
This creates a David and Goliath scenario – as creatives, in effect, we would have to prove that a huge multinational that is using our work without compensation, is NOT in fact using the Fair Use exception appropriately. We would literally be tied up in court for years – for most of us, this simply isn’t an option. South Africa would become fair game for anyone who wants to use our creative output – music, literary works such as educational books and literature, without compensating us, because they argue that their usage of our work falls under ‘Fair Use.’ For us to remedy this, we would have to prove in court that it is blatant exploitation – this doesn’t seem fair, and opens up a frightening prospect of South Africa becoming victim to exploitative practices.
Mr President – our country has a troubling history with appropriately compensating artists. All too often, we hear disturbing stories of some of our major talents dying as paupers, a trend that these bills are seeking to reverse. That we are possibly opening ourselves up to exploitation in this way should make us all very alarmed.
South Africa’s most infamous case of a creative being deprived of his rights in this fashion was composer and performer Solomon Linda. His composition ‘Mbube’ – also known as ‘The Lion Sleeps Tonight’ was notoriously exploited for decades with no compensation to him and after his death, his estate (and by extension his family). Only after a spirited legal battle did the Linda family manage to reverse this historical injustice.
Mr President – as artists, we implore you not to sign both the Bills into law until a thorough review has been conducted and the problematic clauses revised to ensure that all creatives are appropriately covered– in it’s current incarnation, the Bills places content creators in this country in a frighteningly vulnerable place, and opens us up to a situation where our copyright is a theoretical construct, and not an enforceable right. We cannot voluntarily enter into a situation that makes our rights as flimsy as Solomon Linda’s were more than 7 decades ago. We simply cannot return to that perilous scenario, and that is exactly where both the Copyright Amendment Bill and Performer’s Protection Amendment Bill, as they are currently constructed, would take us.
We trust that our appeal will be heard and understood as a desperate plea that you preserve our rights as creative industry professionals.
Amiel Gopal – Rubber Duc