Posted: April 17, 2019
Joint Copyright Based Industries Stakeholder Engagement on the Copyright Amendment Bill Hosted by the Department of Arts and Culture and Trade and Industry
|Minister Rob Davies and Minister Nathi Mthethwa jointly met with the various industry stakeholders on the Copyright Amendment Bill and Performers’ Protection Amendment Bill to address the divergent views on the Bills from the industry at large. Both Bills are currently before the President of the Republic of South Africa for signature after being passed by the National Council of Provinces on 28 March 2019.
Minister Mthethwa set the context that brought everyone to the meeting and the importance of continued dialogue. He indicated that stakeholders approached the Department as they were concerned about the Bills and the Department realised that there was a need for an engagement. He outlined the Parliamentary process followed, clarified that the stakeholder engagement did not form part of the Parliamentary process and the process of government but he supported the need for the creative industry to engage and to hear their voices. He guided that the matters bordering on legalities should not form part of the discussions. He indicated that anchor Department, the dti may identify issues from the engagement and learn about issues that may have been overlooked in the process.
Various stakeholders were in attendance representing the wide and diverse groups affected by the amendment to the legislation. These included; composers, musicians, actors, publishers, collecting societies, broadcasters, attorneys, students, people with disabilities, producers, film makers, academics, librarians and various industry bodies who represent various sectors. Minister Rob Davies in his address appealed to the stakeholders who did not support the Bills and to those who did that the purpose of the engagement is to find a common ground to see where they find each other and where not.
The amendment to the Copyright Act of 1978 and the Performers’ Protection Amendment Act of 1967 have been the subject of numerous robust debates over many years due to the overhaul of outdated legislation which aims to bring South Africa in line with the digital environment and to address the historical context of musicians and other creatives dying as paupers due to ineffective protection by the law and unfair contracts. The payment of royalties and the regulation of collecting societies were some of the most underlying rationale of the Bill. The Copyright Amendment Bill further addresses access to information and knowledge by introducing flexible exceptions and limitations to the legislation. The Performers’ Protection Amendment Bill addresses the economic and moral rights of performers.
In 2011 report of the Copyright Review Commission (CRC) chaired by the retired Judge Farlam was released, which made recommendations regarding the situation facing musicians in the sector; the recommendations Parliament adopted into the Copyright Amendment Bill are: the introduction of digital rights such as the right to communicate literary and musical works to the public and the right to make available copies of sound recordings; to allow the Registrar (Companies and Intellectual Property Commission) to take over the administration (as opposed to the withdrawal of accreditation) of any relevant Collecting Society; all music-rights Collecting Societies to fall within the ambit of the Regulations issued under the Act; retention of music usage information to be compulsory for essential music users; and rights holders (as well as users) to engage the Copyright Tribunal in disputes about the appropriate tariffs to be applied. More significantly, the report found the prevalence of unfair contracts – historic and
In view of the concerns raised against the threat of digital platforms or high tech companies with respect to accessing content because of Fair Use, Minister Davies assured stakeholders that it was not the intention of the Bill to cause harm to industries. He indicated that the regulations and other measures will further provide necessary protection to close any gap in this regard. Regarding the concerns of the Fair Use clause in the Bill, there is a 4 factor test which acts as a safeguard as to whether the intended use is in fact fair. The Bill has further safeguards in terms of addressing this, in the form of technological protection measures (TPMs) to prevent unauthorised access or use of copyright works. TPMs cover many different types of technologies used to control access to copyright content. Content that is protected by these measures could include digital music, movies, games, software and many more. The Copyright Tribunal will also hear disputes pertaining to disputes that arise on the legislation
The Ministers heard and understood what was said by the various stakeholders. What was clear in the discussions was that there are those who support the immediate signing of the Bill and those who are against it. Minister Mthethwa encouraged industry groups to present their views as a collective either in support of or opposing the Bill because it was clear that those were the two prevalent views in the stakeholder engagement. Both Ministers heard many divergent views on the Bill; they listened to concerns and opposition to the Bills as well as areas of concern that are not directly linked to the legislation but impact the industry as a collective. What was concerning is that some industry stakeholders do not seem to know the content of the Bill and refer to the older versions of the Bill such as from 2015.
Minister Mthethwa vowed to ensure that South African creators will never be faced with the dire situation of dying as paupers despite their huge contribution to the industry.
Both Ministers appealed, sympathised and encouraged the creative industry stakeholders to unite and to host an engagement of creators only, in order to develop a common understanding and united position towards issues facing the creator and the creative industry.
Both Ministers asserted that none of the provisions in the Bill hold the intention to affect the growth of the industries negatively but purport to address the abuses many creators have faced over decades. There was an overall consensus that the plight of the creators was important and that the legislation should benefit and protect the creators.
The Bill could be signed into law in full or partially with some clauses rejected, or could be withdrawn by the President and returned to the National Assembly. It was agreed that whichever the outcome, government would engage stakeholders to ensure a sustainable legislation and ensure further deliberations for a successful and transformed creative industry. Should the President sign the Bills, the regulations will be developed to address the concerns raised by industry and they will be consulted upon widely.
Asanda Magaqa, Spokesperson for the Minister of Arts and Culture-072 372 6807 and firstname.lastname@example.org