[Guest Post] Long walk to copyright reform #9: The Copyright Amendment Bill ensures fair remuneration for South African creators and performers

The IPKat has received and is pleased to host the following guest contribution by Katfriend Desmond Oriakhogba (University of the Western Cape) on one of the important but largely overlooked aspect of South Africa’s Copyright Amendment Bill: provisions aimed at ensuring fair remuneration for South African creators and performers. Here’s what Desmond writes:

The Copyright Amendment Bill ensures fair remuneration for South African creators and performers
by Desmond O Oriakhogba

...fair compensation needed

The Copyright Amendment Bill (CAB) was introduced to parliament on 13 May 2017. It was eventually passed on 29 February 2024 after a very tumultuous process (Okorie tells the story here). The CAB now awaits presidential assent to become law. If assented to by the president, the CAB will provide a strong regime for fair remuneration for South African creators and performers, especially those who have historically been disadvantaged. Indeed, the enhancement of the economic and social wellbeing of South African creators and performers by ensuring that they receive fair remuneration for the exploitation of their creativity and performances remained a major driver of the copyright reform process in South Africa. According to the explanatory memorandum to the CAB (p37), a key rationale for the Bill was to ensure that South African creators and performers “do not die as paupers due to ineffective protection” especially in view of the historical “power imbalance, vulnerabilities and abuse taking place in the music industry” in South Africa.

By way of backgrounding, it should be noted that the extant Copyright Act 98 of 1978 had proven inadequate to address the prevalent penury among black creators and performers owing to the inappropriate and disproportionate remuneration of those creators and performers. The disproportionate remuneration stemmed from contracts entered into with dominant players, especially in the music industry, and this has over time been a major source of worry for the South African government. This led to the establishment of bodies such as the Music Industry Task Team (MITT) in 2000 (p26) and the Copyright Review Commission (CRC) in 2010. Both bodies were mandated to, among other things, examine the effectiveness of the Copyright Act to address the underlying issues, including royalty collection and distribution by collective management organistions (CMOs) and recording and publishing contracts, contributing to unfair remuneration of creators and performers and recommend appropriate reforms where necessary. The MITT and CRC found the Copyright Act to be inadequate in addressing the issues. Among others, the MITT called for reintroduction of needletime rights into the copyright regime and ratification of the WIPO Phonograms and Performances Treaty 1996, among others. The MITT’s work led to amendment of the Copyright Act and Performers Protection Act 11 of 1967 in 2002, which reintroduced an imperfect and weak needletime royalty system into the South African copyright regime.

On its part, the CRC found the problems besetting creators and performers in the music industry to include non-payment of needletime royalty by broadcasting organisations to rights owners owing to the existing weak needletime regime, inadequate regulatory supervision of CMOs and protection for their members (rights owners), extremely low royalty collection in the music industry, excessive administrative costs charged by CMOs, and failure of CMOs to comply with corporate governance principles (accountability and transparency). Lack of reversionary rights for creators and regulation of the exploitation of copyright in the digital space were also found to be of major concern. Accordingly, the CRC recommended a substantial review of the copyright regime to provide for a strong regulation of needletime rights, strong supervision for CMOs through a regulatory framework that adequately safeguards the interest of creators and performers, reversionary right for authors, protection of copyright online, and strengthening of the Copyright Tribunal, among others.

The long title of the CAB indicates that the Bill aims to amend the extant Copyright Act – in line with the CRC’s recommendation – to, among other things, allow for further limitations and exceptions (L&Es) including for persons with disabilities, provide for the sharing and payment of royalties, resale royalty rights, recording and reporting of certain acts, accreditation of CMOs, and the licensing of orphan works. Despite this, conversations in the media and some academic circles around the CAB have largely focused on its provisions relating to L&Es, especially fair use (for instance, see here, here and here). These conversations have heavily eclipsed other interesting and important provisions contained in the CAB that are aimed at ensuring fair remuneration for South African creators and performers who have historically been impoverished by the established inadequacies in the Copyright Act. Accordingly, the CAB has erroneously, mischievously and sensationally been described as “bad news for South Africa”, a legal framework that will impoverish South African creators and performers while enriching big-techs, and one that fails to produce a “modern, fair and fit-for-purpose copyright environment” for South Africa. Unfortunately, the creators and performers whom the CAB aims to protect continue to echo some of these erroneous narratives without proper engagement with the entire provisions of the Bill (for instance, see here and here).

However, a careful and sincere reading of CAB will show that the Bill is designed to equally serve the public interest in empowering creators and performers to achieve fair remuneration for their creativity and performances and ensuring access to knowledge for education in South Africa. Indeed, the CAB lives up to its core objectives as set out in its long title. The CAB contains stipulations that will ensure equitable remuneration and fair share in royalties for creators of literary, musical and artistic works as well as performers of audio-visual works (clauses 5, 7, 8 and 9 of the CAB). It also strengthens the needletime royalty regime in South Africa by creating a mechanism that ensures that users of sound recording agree with performers and owners of sound recording on amount payable. The regime obligates users to keep true and accurate records of usage data and provide same to performers and owners of sound recordings for purpose of royalty collection. Importantly, the new regime ensures that performers will get equal share from collected needletime royalties (clauses 10 and 11 of the CAB). The equitable remuneration and fair and equal royalty framework must proceed from agreement between the creators, performers, users, and other copyright owners (investors in the copyright industry) as the case may be with the window for referral to a reinvigorated Copyright Tribunal (see clauses 32-33 of the CAB). The CAB also introduces a broad and strong mechanism for the regulation of CMOs, which will replace the extant weak regulatory regime that covers only needletime CMOs – SAMPRA and IMPRA (clause 27 of the CAB).

Interestingly, the CAB introduces a system for artists resale royalty in respect of artistic work (clause 7 of the CAB), licensing of the use of orphan works (clause 26 of the CAB) and authors’ reversionary right (clause 25 of the CAB). The legal battle and successful out-of-court settlement in the famous Solomon Linda story, which has formed the subject of magazine stories, a book and a Netflix documentary, among others, was made possible by the authors’ reversionary right provided for in section 5(2), Schedule III of the now defunct Patent, Designs, Trade Marks and Copyright Act 9 of 1916. Schedule III comprised the entire provision of the defunct British Copyright Act 1911 (Imperial Copyright Act). The 1916 Act was repealed by the defunct Copyright Act 42 of 1965. Despite the repeal, the reversionary right it provided for continues to apply to works made between 1916 and 1965 when Act 42 was enacted.

The unfortunate case of the late Solomon Linda in respect of the Mbube song which metamorphosed into the global sensation – The Lion Sleeps Tonight – is a strong justification not just for the reversionary rights provision in the CAB, but also for the proposals relating to creators’ and performers’ rights to equitable remuneration, and fair and equal royalty discussed above. Indeed, by the passage of the CAB, the South African parliament has demonstrated its resolve to prevent another Solomon Linda case from happening to South African authors. It is hoped that the presidency will endorse this resolve without delay by timeously assenting to the CAB.


Follow the long walk:

Long Walk to Copyright Reform #1

Long Walk to Copyright Reform #2

Long Walk to Copyright Reform #3

Long Walk to Copyright Reform #4

Long Walk to Copyright Reform #5A

Long Walk to Copyright Reform #5B

Long Walk to Copyright Reform #6

Long Walk to Copyright Reform #7

Long Walk to Copyright Reform #8