South African Creatives Grapple Over Copyright Amendment Bill

Christopher Vourlias

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DURBAN–The South African government is planning to update its four-decade-old copyright legislation, but what that means for filmmakers was up for debate during a contentious and often heated session at the Durban FilmMart this week.

While the Copyright Amendment Bill awaits the signature of President Cyril Ramaphosa, industry stakeholders remain divided over how the proposed changes will impact the creative industries.

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“We want these reforms. We need them. But we cannot have a bill that is flawed, that has been rushed through parliament where there was a lack of consultations with the film industry,” said Collen Dlamini, of the Coalition for Effective Copyright.

The Dept. of Trade and Industry has argued that the new copyright amendment bill protects publishers, authors, composers, filmmakers, artists, and others working in creative industries while bringing South Africa’s copyright laws in line with the realities of the digital age.

But the proposed amendment was greeted with stiff opposition earlier this year, with a coalition that included Sony, Warner, Universal, the Recording Industry of South Africa, and local media giant Kagiso Media warning in a letter to the Sunday Times about the potentially “devastating” impact of the bill on the creative sector.

Among their chief concerns was the “uncertainty around ownership and royalties” that the bill creates by allowing the free reuse of published material. Critics of the bill say it will allow tech giants like YouTube and Facebook to profit from content created by musicians, artists, filmmakers and writers without fairly compensating its creators.

“Right now, the President, on the top of his agenda is to grow this economy,” said Dlamini. “How are we going to grow this economy when it’s a free-for-all? ‘Let’s just copy and get everything for free, without protection of our IP.’”

Proponents of the bill argue that it will strengthen the “moral rights” of small producers to their work while offering a more balanced framework to protect intellectual property.

“The fair use provisions in the bill say you can only do it…if you’re not substituting your work in the market for the original work,” said Ben Cashdan of ReCreate, a coalition of South African creatives in favor of what it describes as “balanced copyright reform.” “What you can do is you can quote them, you can satirize them, you can sample them and create something new using inspiration.”

He added: “When you create, you draw on the culture, you draw on what has come before.”

Documentary filmmaker Rehad Desai said that the usage provisions of the bill are a necessary reflection of the way content is viewed, downloaded and shared by most people today. “My view is quite simple: if we think we are going to be able to regulate and determine the way that three billion people around the world consume culture, I think we’re being highly unrealistic,” he said. “We have to adapt to the new reality.”

Cashdan criticized “the application of copyright in a religiously fanatical way,” arguing that the bill’s definition of fair use needs to be flexible to anticipate how the ways in which content is created, distributed and consumed might unexpectedly change.

“Government cannot predict all the uses in the future that might be fair,” he said. “Before the invention of the VHS machine, they didn’t know there was going to be a VHS machine.”

Cashdan also suggested that the corporate giants aligned against the new bill were being driven by self-interest. “They’re concerned about their stranglehold over intellectual property that they’re making money off off,” he said. “All of the copyright royalties that we pay as a country right now, 70% of it is going to the global north. This is a knowledge tax on the South African economy.”

Kethiwe Ngcobo, of the Independent Black Filmmakers Collective, maintained that the bill’s opponents are rallying not against the need for reform, but what they see as an opaque process in how the bill was drafted. “We agree we need to change the law, but we need to have a clear understanding what the implications of the current bill would be,” she said. “What is going to be the impact of this bill, the way it’s drafted, on the industry? That [assessment] has not been done.”

But Jack Devnarain, of the South African Guild of Actors, said that creatives could no longer wait for the government to drag its feet over the proposed changes. “We are afraid that when you have serious opposition to the reforms that are proposed by the bills, and this entire process is stalled, we will not then see the reform that actors need in our lifetimes,” he said.

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