Intellectual property. Picture: ISTOCK
Intellectual property. Picture: ISTOCK

The open letter from established actress Vatiswa Ndara to sports, arts & culture minister Nathi Mthethwa comes at an interesting time for SA’s arts industry. Arts practitioners across all sectors of the industry have to face numerous challenges without the protection of law or industry bodies, while there are a number of solutions that are being unduly delayed — to the benefit of the status quo.

Though Ndara’s open letter calling for regulation, monitoring, codes of conduct, oversight and increased investigations into the industry was addressed to the arts & culture ministry, the solution is interdepartmental. It begins with the Performance Protection Amendment Bill and Copyright Amendment Bill.

According to Adrian Galley of the SA Guild of Actors, actors have never enjoyed a statutory right to performance royalties. “For the first time in history, the [performance bill] and [copyright bill] together make provision for royalties for actors and the mechanisms for collecting and distributing them. This is the first step in ensuring that actors are able to assert their rights.”

Section 79 (1), (4) and (5) allows for reconsideration of the bill, but not for a delay in signing it. And this is not the only document that is being delayed. Cultural activist Mike van Graan, founder of the SA Cultural Policy Network, points out that the revised white paper on arts, culture and heritage, which is intended to transform the industry, has been in the process of revision for more than five years.

The two bills have reportedly been sitting on the president’s desk for more than six months. It has been suggested that his delay in signing has been aggravated by lobby groups Copyright Alliance and ReCreate SA. Though these groups and others represent different interests, they have one thing in common: they confuse “fair use” with “safe harbour”.

Fair use enhances access to and use of copyright works for the advancement of education, and has positive international precedent. Safe harbour, on the other hand, protects private organisations such as Facebook, Apple, Google and Amazon from copyright infringement claims.

Earlier this year the EU made the historic move to blunt safe harbour with article 13 of its copyright directive. SA could do the same but has not. What is stopping us?

The Copyright Alliance represents the SA Music Rights Organisation (Samro) together with its subsidiaries. Samro is a de facto monopoly and bona fide oligarchy. The copyright bill seeks to regulate Samro, and this is the reason for the Copyright Alliance’s strong opposition to it.

Though the department of trade & industry has established the Copyright and Intellectual Property Commission with oversight over the music rights sector, this does not extend to Samro. Senior manager of copyright at the commission, Kadi Petje, explains that Samro falls outside its regulatory framework and regulates itself through its members.

At present the only oversight on Samro is with the Companies Act, Competition Act and Financial Intelligence Centre Act. As a result, Samro members have had to resort to legal process to try to uncover where their royalties are going. During a special power of attorney audit on Hlengiwe Mhlaba’s royalty payments it was discovered that Samro misapportioned 83.33% to an acronym “DP”, standing for public domain. Public domain by law is free for use by all.

The Samro CEO at the time called this a “historical legacy system”. The “DP” royalties are bundled together with six other distinctive acronyms or categories and paid into the “royalties written back for distribution” collection pool. This accumulates at a rate of 12.5% of the Samro collections (R471.9m in 2018) and has been growing since 1961.

Some members are embroiled in a legal process with Samro and prefer not to be quoted, but they believe their royalties are paid out according to “market share”, with 85% going offshore to the three multinationals Sony, Warner and Universal, and a handful of independents including Kobalt and BMG.

Only the remaining 15% comes back to Samro members. These payments are further subjected to a membership hierarchy that even the copyright review commission of 2011 recommended changing, though this has not happened. Members have called for a detailed analysis of these public domain payments and believe this will not only affect African music composers and arrangers but also African music licensees.

The SABC is Samro’s biggest client and allegedly owes Samro R125.8m for performance rights and the SA Music Performance Rights Association R104.2m for needle-time rights. Samro has begun a strong publicity campaign to recoup these funds. However, the “DP” analysis could reverse this alleged debt.

After the DP exposé the minister announced a special commission of inquiry into music rights in April 2018. Though it is yet to get off the ground, confidence in the ministry has grown in the wake of the conviction of Welcome Msomi for taking R8m from the Legends fund, which was a first for social justice in the arts industry.

• Douglas is a journalist and author.