Picture: ISTOCK
Picture: ISTOCK

A bill aimed at ensuring fair compensation for publishers, artists and film producers has been described by some in the creative industry as “deeply flawed” and devoid of logic.

A parliamentary committee approved the Copyright Amendment Bill last week, and it is expected to be voted on by the National Council of Provinces   (NCOP) on Thursday. If approved there, it will be sent to President Cyril Ramaphosa for final approval.

 “We had hoped that common sense would prevail and that this deeply flawed bill would be withdrawn in order to repair its imprecise terminology and to redraft the parts that erode creators’ rights,” said Collen Dlamini, head of regulatory affairs at Kagiso Media.

Tiso Blackstar Group, which owns Business Day, indirectly holds shares in Kagiso Media.

The bill contains broad exceptions that allow for the free use of copyrighted content. Those who oppose it say the legislation would benefit multinational technology platforms such as Google, as well as the government, which would be able to access and reproduce educational content without paying for it.

SA’s approach to updating its copyright laws for the digital era differs from that of the EU, where members of the European Parliament want to force online platforms such as Google and Facebook to put measures in place that prevent their users from illegally sharing copyrighted content.

The “upload filters” required under the proposed EU rules, which Google has lobbied against, are aimed at protecting copyright holders’ rights.

SA is taking a different approach.

Johannesburg-based musician Pri Hollis said that because of the “fair use” clauses in the Copyright Amendment Bill, “artists will have no protection from rampant plagiarism, which favours those who seek to exploit original content without creating or investing in it”.

A 2017 report by PwC found that the rules would lead to a 30% decline in employment in SA’s publishing industry — or the loss of about 1,250 full-time jobs.

Some clauses in the bill have also been flagged as illogical, including one that says film and music producers must pay retrospective royalties to all incidental performers — such as backup dancers in a music video — that they have worked with in recent decades, even if those performers were paid an upfront fee at the time.

“Who’s going to invest in a jurisdiction where government tears up yesterday’s contracts and forces you to pay up money that were never negotiated previously,” said a lawyer who spoke on condition of anonymity.

In essence, the state will impose sweeping changes to past contracts between performers and publishers.

“The bill will further undermine confidence in the film industry and discourage investment,” said Dlamini.

Nhlanhla Sibisi, CEO of the Recording Industry of SA, said while the intentions behind the Copyright Amendment Bill and the accompanying Performers’ Protection Amendment Bill were “noble”, they will probably result “in some multinationals asking if they really want to invest in local production”.

Another ill-conceived clause, said Sibisi, is that 25 years after a record is produced, for instance, the rights will revert to every person who contributed to it. This means that the album will be lost to the public unless all contributors — including backing vocalists — can agree on new terms amongst themselves and then with a record company, he said.

“So we’re asking the department of trade & industry to look at this from a practical point of view, but I’m not sure that’s being listened to.”

Sibisi said the government had arrived at a “one-size-fits-all” set of rules for all creative industries, even though they each have their own remuneration models.

The “fair use” framework included in the rules, which gives individuals and companies numerous avenues to circumvent copyright protections and republish content, follows the example set by the US.

But unlike SA, American courts can award hefty statutory punitive damages in copyright-infringement cases, Sibisi said. In SA, an offender would simply have to stop reusing the content and would only have to pay standard royalties — hardly a deterrent.

“There are strong constitutional arguments against the bill, and I think some industries will certainly consider challenging it,” Sibisi said.

“During the consultation period, the number of people who said they had issues with the bill far outweighed those who said they supported it, so logic dictates that the NCOP should propose amendments,” he added.

Hollis, who has campaigned against the bill for months, said the “fair use” clauses would restrict compensation for original works, meaning production would decline and SA would ultimately become reliant on imported textbooks, for example.

But published novelist Marcus Low, who has advocated changes to SA’s copyright laws, said the bill introduced “sensible copyright exceptions in line with international trends”.

For instance, an exception that allows for books to be reproduced for blind people without the permission of publishers “will change the lives of blind people and would pave the way for SA to implement the Marrakesh Treaty, recently adopted in both the US and the EU”.

The move toward the American fair-use framework would also “bring greater flexibility” and “help future-proof” SA’s copyright laws, Low said.

“Similar copyright exceptions and fair-use provisions have not harmed authors and creators in the US and other countries, and suggestions that they would do so here are without basis. Under the new bill, piracy will still be piracy — nothing changes that,” he said.

Google SA and the department of trade and industry had not responded to requests for comment at the time of publication.