20 Oct Submissions on the Copyright Amendment Bill [B13-2017] and the Memorandum on the Objects of the Bill
For Attention: Hon. Ms JL Fubbs, MP
The Chairperson of the Portfolio Committee on Trade & Industry
18 July 2018
Dear Ms Fubbs,
SUBMISSIONS ON THE COPYRIGHT AMENDMENT BILL [B13-2017] AND THE MEMORANDUM ON OBJECTS OF THE BILL
Thank you for inviting public comment on the Copyright Amendment Bill [B13-2017], which was published for comment on 20 June 2018, and the Memorandum on the Objects of the Bill.
I write to you and the Portfolio Committee as an author, performing artist and composer. I am a singer-songwriter who just completed my first album, and as I am getting ready to enter into commercial dealings in respect of my work (locally and internationally), I am concerned that my rights to protect my work against unlicensed usages and to enter freely into contractual deals relating to my work may be prejudiced by some of the proposals that are advanced in the B-Bill (as well as the 2017 Copyright Amendment Bill).
As an artist with a vested interest in the copyright reform process in South Africa, I took a keen interest in developments and attended the August 2017 public hearings in Cape Town.
Although the uplifting of the plight of SA artists, musicians, authors and composers is clearly one of the stated objectives in the Memorandum on the Objects of the Bill (‘the Memorandum’), I am concerned that this noble objective would not be achieved through the enactment of the presently tabled proposals.
Three problem areas that I identified are:
1. Clause 6A of the B-Bill would likely have unintended commercial implications for local artists.
2. The Bill does not introduce meaningful legal mechanisms for artists to enforce their rights in the digital space.
3. The 2017 Amendment Bill introduces too broad and vague copyright exceptions under the fair use doctrine.
Firstly, it appears that the B-Bill, specifically in Clause 6A, places badly negotiated deals at primary culpability when it comes to artist misfortunes. Although exploitation
within creative industries has been problematic and the intention of these clauses is to protect artists; with music level enrolments at tertiary level at an all-time high and the proliferation of music business courses and publications (so much information on this is freely available online and presented at community workshops without charge by organisations such as SAMRO), the modern musician is more adept at navigating contracts and can establish clarity on the main dangers posed by copyright assignments and unreasonable contract terms. Instead of protecting artists, the mentioned clauses could restrict a musician’s intellectual property and Constitutional rights to freely contract in respect of their works. An example being that it may deter foreign investment, particularly in the distribution and publishing industries, which provide advances; which enable musicians to fund the creation of artistic works. Reduced royalty offerings would also result in less earnings by musicians thus less financial incentive to grow our creative industries.
Secondly, although the Memorandum states that the Bill seeks to address issues relating to the ‘protection of works and rights of authors in the digital environment’, I could not trace on my own reading of the B-Bill or the 2017 Amendment Bill that any meaningful digital enforcement mechanisms have been introduced whatsoever.
While it is wonderful news to artists that the B-Bill seeks to introduce criminal liability for music users who do not report on those usages, an artist would not be able to recoup financial losses for unauthorised usages, unless government goes one step further and also introduces civil liability and punitive damages. Further, without digital enforcement mechanisms such as site blocking and without placing an increased obligation on digital platforms to pay market related royalties for using music and to play a more active role in preventing infringements, SA artists would be powerless to act against the large corporations such as Google, YouTube, etc. or their fanbases which consist of more than a billion users who have become accustomed to access music online for free on these platforms.
Lastly, the introduction of broad and open-ended copyright infringement exceptions such as the proposed ‘fair use’ doctrine, will not assist to uplift the plight of creatives in South Africa. It would merely allow for even more instances where users feel that they have a right to access copyright protected content for free. In Clause 2.1 of the Memorandum, it is clearly acknowledged that one of the objectives of the Bill is to implement improved protections for local performers and composers. Unfortunately, this will not be achieved by providing more freedom for users to access, use, distribute and reproduce copyright protected works without paying market-related royalties. In fact, this would further harm our already vulnerable creatives and creative sectors.
Much like all creatives, who invest time, personal finance and educational pursuits, both in private and prescribed study, in order to create original work; I do believe that an equitable result is being able to own our copyright and to determine how it interacts and shapes our world. This is especially true of young previously disadvantaged artists, like myself, who have through the struggles of those before us been granted agency have our voices heard and to pay homage to our proud South African identity.
Truly, who stands to gain from unspecified, open-ended attributes of ‘fair use’? It is the corporate giants who make their profits from content creators, namely digital platforms. The global appetite for original art, particularly from our rich cultural heritages, is incessant and only gaining momentum in the light of recent successful global film depictions of such. This correlates to large scale financial gains, more than ever for those who seek legislative protection for infringements under this guise of ‘fair use’ by further expoliting the ‘value gap’; the devaluation of music.
Indeed, provisions for the vicissitudes of the digital age must be addressed, but we must be careful to not assign implacable powers to those already answerable for copyright infringements of not paying artists market related compensations for their work (if it all).
In closing, it is sincerely hoped that this letter be received not in enmity or in seeming intent to anathematise, but to encourage a punctilious undertaking by consulting directly with the South African music industry. Those who seek to infringe our original, creative content do so on a rather astute premiss: the assiduous artistic nature of all human beings to continue to create even in the most dire circumstances. Let us not allow scope for our local content to be thus exploited whilst our cultural economy is left not only untapped but also stifled.
Amendment is necessary and welcomed, but without hearing and understanding the real-world circumstances of those who are the most unprotected, the Bill cannot aim to protect its most valuable assets: the perveyors of our country’s cultural identity.
Author, singer-songwriter, poet, performer, composer, musician.