Let’s be frank.   The Copyright Amendment Bill in its various versions since 2015 has been attacked from all sides, for so many shameless reasons, too many to count.  Supporters of the Bill have been called ridiculous names in the media, such as ‘Big Tech agents’ and ‘Dark Forces’.  ‘Fair use’ has been called an ‘alien import’ and something that will cause ‘catastrophic damage’ and loss of employment to the creative industries. Fair copyright exceptions have been called ‘weapons of destruction’.  Yet, fair use has improved access to information, research and education, and creative industries are doing well in all the countries that already have it in their copyright law.  This year, Nigeria, with its huge creative industry, welcomed fair use provisions in its new copyright law, although it is still called fair dealing.

What is becoming very evident in the fight against the South African Copyright Amendment Bill is that artists and other creators are being misled by the organisations and collecting societies that are supposed to support and protect them and provide them with fair remuneration. 

Since 2017, a coalition of representatives of collecting societies and rightsholders, and their legal advisors, have engaged on a strategy of disinformation and myth-sharing in the media, supposedly to oppose fair use provisions and other parts of the Copyright Amendment Bill.  Reading between the lines, though, it is very clear that these very same coalition members are fighting vehemently to protect their exploitative practices, and the status quo that has served them so well for decades.  Why would they want an amended Copyright Act that would ‘rock their economic boats, affect their profit-margins, and oblige them to be accountable and pay fair royalties to creatives?

There are enough scandals in the public media, listed below, to show that not all has been well for years between collecting societies and artists who depend on them to collect and pay fair royalties to them on a regular basis.  

The most telling official report that details the misadministration and failure of collecting societies to protect their members and to pay them royalties is the Copyright Review Commission Report 2011 by Judge Farlam.  Its findings were the reason that the process of amending the Copyright Act of 1978 commenced.  It is also the reason why an Amendment Bill (passed in 2019, reviewed in 2020/21 and passed again in 2022 with revisions based on stakeholders’ submissions and public hearings) is making its final leg through the National Council of Provinces right now.  This Bill and its sister bill, the Performers’ Protection Bill, provide remedies for many of the issues experienced by artists under the current Copyright Act, which ‘celebrates’ its 45th birthday this year.  Apart from providing various protections and new rights to artists and other creatives, the Bill provides for the regulation of collecting societies to make them more transparent and accountable, to ensure that they pay artists and other creatives their fair due when it comes to royalties collected for the use and re-use of their copyright works.

On 25 August 2023, a group of artists under the banner of the Cultural and Creative Industry Federation of South Africa (CCIFSA), an organisation funded by the Department of Sport, Arts and Culture (DSAC), marched in Johannesburg to protest against the Copyright Amendment Bill, in particular the ‘Fair Use’ provisions.  Essentially, they were protesting against the DSAC, and the Department of Trade and Industry, as the Bill is part of Government’s efforts to support artists and other creatives and improve their income opportunities in the future. Speakers at the protest, blamed the Copyright Amendment Bill for artists dying as ‘paupers’ for decades, and fair use was presented as a ‘free-for-all’ tool for copyright infringement and piracy.  Ironically, much was said against the Bill, albeit disinformation, by the lawyer of one of the very same (unregulated) collecting societies that has failed its members by its wasteful expenditure on a (failed) collecting society initiative in Dubai and a distribution system costing millions that will probably never be used, amongst others. This is clearly a conflict of interest, too.  Also, the opening remarks of  reporter, Theodor Mashele, in a YouTube video on this march, incorrectly says that:  “For years the fair use clause has left artists with empty pockets …”   Another myth!   Fair use is not even in the copyright law yet!

Whilst CCIFSA, and their lawyer friend from SAMRO, ranted about artists being ‘paupers’, and how bad fair use is for artists, CCIFSA conveniently hid the fact that they are currently under investigation by the Special Investigations Unit (SIU) for the alleged mismanagement of millions of rands of public funds.   How hypocritical!  Pulling the wool over artists’ eyes to deflect from their own devious practices!   As Jack Devnarain, veteran actor and chairman of the South African Guild of Actors and strong supporter of the Copyright Amendment Bill, says:  “The issue of copyright reform has major long-term consequences for the creative sector, and shutting down the industry is no substitute for rational minds engaging in mature debate. Click here to read his article.

Well, let’s get some facts right here.  Artists have been dying as ‘paupers’ for years because of the lack of protective provisions for them in the Copyright Act of 1978, and the Performers’ Protection Act of 1967.  And, for all the reasons mentioned above with regard to collecting societies’ failure to pay fair royalties to artists and spend money wisely.  It has nothing to do with the Copyright Amendment Bill or fair use. The Bill with its ‘fair use’ clause has not been passed yet, so it is totally innocent of impoverishing or negatively affecting any creative’s life to date.  What the Bill will do is give artists and other creatives more control over their works, better protection against biased or unfair contracts, reversion of rights to exploit their works elsewhere if rightsholders do not make it beneficial for them, and very importantly, fair royalties and equitable remuneration that they have not received for decades.   It will also regulate collecting societies so that they become transparent and accountable to artists they represent.

Unfortunately, many artists and creators have not read the Bill, nor do they understand the complexities of the Bill, so they tend to follow media reports and false views of those with selfish agendas. There has been so much disinformation in the media, which has clearly caused much confusion for artists and other creatives. 

What is interesting is that some artists who were recently protesting against the Bill, had on previous occasions, publicly supported fair use, even at Parliamentary public hearings.   Could these artists just be totally confused, or have they been ‘captured’ or put under pressure to publicly support the self-serving agenda of collecting societies and rightsholders?

It is not fair use or the Copyright Amendment Bill, so who exactly is the ‘enemy’ of artists and other creatives in this copyright chess game? 

26 September 2023