Follow The Money: Who is against the Copyright Amendment Bill?

By Kyla Jade McNulty, Ben Cashdan, Douglas Scott, Adrian Galley, David Matsepe, Jace Nair, Denise R Nicholson, Mugwena Maluleke

22 Feb 2024

Not only is the Copyright Amendment Bill a vital and urgent piece of legislation aimed at valuing artists, but it also ensures that marginalised groups have fair access to creative works and works of knowledge such as textbooks.

When actress Marah Louw accepted the role of Dolly in Taxi to Soweto in 1991, she had to dash back from the Mandela tribute concert at Wembley Stadium where she had performed alongside Patti LaBelle. Her star was rising, but she wasn’t focused on fame or fortune. She was excited to be in a South African movie.

Thirty years later, she has mixed feelings about the movie.

In 2021, M-Net aired the film repeatedly to help boost the mood of a nation depressed by Covid.

“I never received a cent in royalties for those broadcasts or many others over the decades,” Marah told us. The same applied to repeats of the drama series Muvhango.

“Someone is making money from my performances… just not me.”

This gets to the heart of a problem in the creative sector in South Africa – performers have no rights to royalties when their work is reused.

From Henry Cele to Brenda Fassie, South African performers end their careers without the financial security for themselves or their families which they should enjoy (and would enjoy in many other countries).

https://youtu.be/Umt40RX3re0?si=RbDoPhL_eWTBLu8P

Those who have led opposition to the Copyright Amendment Bill are mostly large corporations who don’t want to pay fair royalties. In fact, they oppose similar laws all over the world.

They claim to have the interests of artists at heart, but their main priority is the financial returns to their shareholders. They have even co-opted some artists to lobby against the Copyright Amendment Bill.

Their motivation is to protect their monopolies; ours is to increase fairness, access, innovation and creativity.

This is one of the many reasons why the ANC government drafted the Bill and why it must urgently be passed into law.

The Bill, with the Performers’ Protection Amendment Bill, grants performers a right to fair remuneration if their work is reused.

It also extends protection to other creatives including musicians, fine artists, authors and composers, by stating that even where they sign over copyright in their work to a distributor, they must receive a fair share of the income earned.

This brings protection for artists and performers in South Africa closer to that which exists in the US or EU.

Not only is the Copyright Amendment Bill a vital and urgent piece of legislation aimed at valuing artists, but it also ensures that marginalised groups have fair access to creative works and works of knowledge such as textbooks.

Without the Copyright Amendment Bill, we will continue to be governed by apartheid-era copyright laws which are outdated and unconstitutional.

The ANC government has worked on this legislation for 10 years to try to ensure artists get their due. Despite fierce opposition, they have stayed the course. They deserve our support and encouragement to make it to the finish line.

Overpricing

As well as guaranteeing artists and writers a livelihood, the Bill tackles the overpricing of some works in South Africa, especially school and college textbooks.

It insists that publishers make essential works of knowledge, whether in science or the arts, available at a fair price to all learners, or face the prospect of teachers and learners making photocopies as a last resort.

This is very similar to the struggle we fought in the mid-1990s against pharmaceutical companies who refused to make life-saving drugs available to the majority of people living with HIV.

They preferred to sell the medication to rich (mostly white) patients. It suited their business models in a highly unequal society. At that stage, the ANC legislators (supported by civil society) said: Drop your prices, or we’ll licence other companies to produce affordable generic versions of your medicines.

Big Pharma threatened to pull out of the country, but within a couple of years, prices dropped dramatically and millions of lives were saved. As far as we know, no companies went out of business as a result.

In 2024, we say: Textbooks are the new medicines!

The Copyright Amendment Bill says: Make your textbooks affordable or we will copy them or buy them more cheaply overseas. No wonder the publishers are working behind the scenes to lobby against the Bill.

It also allows blind South Africans to make braille copies of books, to ensure that those with visual impairment can learn, live and prosper like everyone else.

Fair use

The new law also opens the door to research and new technologies in South Africa by allowing creative works to be catalogued, searched and archived.

This part of the law is known as “fair use” as it allows books and other works to be used for public interest purposes, as long as it’s fair to the creators and they don’t lose any income.

It will also allow the digitisation of African heritage and prevent us from losing materials in fires and floods (which has happened recently).

This is an urgent modernisation of our law to bring us in line with societies like the US, Singapore, Japan and Korea (and recently Nigeria). Otherwise, most African countries will forever be providers of data and creativity, but never able to innovate ourselves, using the world’s knowledge.

Copyright reform is vital for economic growth. Hi-tech and media industries cannot grow in Africa if they don’t have a modern, balanced copyright law.

So the Copyright Amendment Bill benefits both creators and users of copyrighted material and society at large. The only group it challenges are the corporations in the middle.

Multinational record labels, streaming platforms, billion-dollar publishers – those are the folks who will have to make adjustments. They will have to pay artists fairly and make works available more widely.

History tells us that with some tweaks to their business models, they will survive and we’ll all be better off.

Also in the middle are the collecting societies that are meant to collect money for artists from broadcasters, streamers and so on and pay it over.

Except, as many artists have pointed out, these collecting societies have a tendency to take the money and run, leaving artists in the lurch.

In South Africa some music collecting groups like the Southern African Music Rights Organisation have huge music companies like Sony and Universal on their boards. This shows whose interests they really serve.

Large labels have often pressured artists to sign away their future income in return for promotional contracts. The Copyright Amendment Bill introduces much-needed regulations to make collecting societies more accountable to artists themselves.

For Marah Louw and for the memory of Henry Cele, for thousands of up-and-coming artists in our townships, for millions of learners in rural and township schools who need access to science and arts textbooks, for South Africans who need books in braille, and for so many others, the ANC must resist the lobbying and pass the Copyright Amendment Bill and the Performers’ Protection Amendment Bill.

Value our artists. Pay fair royalties. Ensure access to knowledge. Keep your eye on the profiteers. The time is now. DM

For more on the campaign for fair royalties and fair use, visit ReCreate

Kyla Jade McNulty manages a record label and is convenor of ReCreate SA; Mugwena Maluleke is General Secretary of the SA Democratic Teachers’ Union; Christo de Klerk and Jace Nair are in the leadership of Blind SA; Ben Cashdan is a documentary filmmaker and was a former economic adviser in the Mandela presidency; Denise Nicholson was copyright librarian at Wits and now heads Scholarly Horizons; Douglas Scott is the point person for advocacy at Wikimedia South Africa; David Matsepe is head of Research at Sadtu; Adrian Galley represents the SA Guild of Actors.

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South Africa

Overpricing

Fair use