RiSA raises alarm over copyright and performers’ protection amendment bills

RiSA made representations to the select committee on trade and industry, economic development, small business development, tourism, employment and labour sitting in Cape Town earlier this month on the two bills, which it deems regressive in relation to the rights of creators.

“Some of the provisions of these bills would interfere with freedom of contract, undermine the protection of creative works, lead to legal and commercial uncertainty, and create a disincentive from local and international companies to invest in South African cultural industries,” RiSA CEO Nhlanhla Sibisi said. “A thriving South African cultural sector that creates jobs and generates tax revenues needs robust copyright protection and fair and predictable copyright exceptions.”

In its submission, RiSA made two recommendations “to avoid the most damaging and harmful consequences of the proposed amendments.” The first recommendation is to annul several provisions in Section 39 of the Copyright Amendment Bill that RiSA says deprive artists and producers of their freedom to contract. They also extend ministerial powers to regulate private contractual arrangements.

The second recommendation is in relation to Section 12A of the same bill, which introduces the open-ended ‘fair use’ concept into South African copyright law. This, RiSA says, would cause a substantial risk to the local creative sector instead of benefiting it.

“The importation of the US-style ‘fair use’ exception in the Copyright Amendment Bill must be resisted. It would undermine the protection of the South African creative community, create significant legal uncertainty and benefit mainly large foreign companies seeking to use South African works for free,” it said.

RiSA said if the two bills were signed into law in their current state, they would have dire consequences for local creatives and copyrighted works. “As a result, artists would be harmed by the weakening of South Africa’s domestic music market and the ability of the South African industry to export local music.”

It added: “RiSA strongly supports the initiative of the Department of Trade, Industry and Competition and Parliament to modernise South Africa’s copyright law to make it a gold standard and to bring it into line with international treaties, including the WIPO [World Intellectual Property Organisation] Performances and Phonograms Treaty (WPPT), the WIPO Copyright Treaty (WCT) and international best practice, ensuring that they protect all participants in the music value chain but cautions against the unintended consequences of some of the provisions in the bills.”

A protracted process

In 2017, a group of concerned industry bodies under the umbrella of the South African Copyright Alliance wrote to the parliamentary portfolio committee on trade and industry about similar concerns that RiSA is voicing now. The alliance – comprising RiSA, the Southern African Music Rights Organisation, the Composers, Authors and Publishers Association, the Dramatic, Artistic and Literary Rights Organisation, the South African Music Performance Rights Association, the Musicians Association of South Africa and the Music Publishers’ Association of South Africa – mainly argued that users of copyright-protected material, such as broadcasters and digital music services, should never enjoy the same privileges as the creators of that material. The Copyright Amendment Bill was gazetted by the Department of Trade and Industry (DTI), led by former minister Rob Davies, that same year.

Six years later, groups representing creatives in South Africa continue to reiterate the same fears with little resolution in sight. This after President Cyril Ramaphosa challenged the legality of the two bills in 2019, sending them back from his office where they were awaiting his signature to be signed into law, through his lawyers to the DTI and the Department of Sport, Arts and Culture to investigate whether the bills were in fact invasive of creators‘ rights. It was found that the bills were unconstitutional and Ramaphosa referred them back to Parliament in 2020, citing that sections dealing with the ‘fair use’ concept had not been put up for public comment.

Public hearings are currently ongoing across the country on the two bills, with the Free State and North West provinces hosting the final sessions.