Following the Bell: SA’s new intellectual property regulation is neither duplicated nor right

May 16, 2023

Legislation in South Africa is extremely torturous. The idea of a negotiated solution was incorporated into the spirit of South Africa’s legislative system, partly as a result of the extraordinary constitutional settlement. This idea is based on the idea that there is a rational solution for most, if not all, problems. It’s noble, but a little bit naive.

As a result, the constitutional provisions requiring open consultation hearings regarding legislative changes have been taken very seriously by the courts. There is just one issue: listening.

It turns out that listening is a lot harder than most people think. We tend to take it for granted because the process is so instinctive and automatic. However, there is a significant distinction between simply hearing and listening. And it turns out that saying something louder helps if someone doesn’t want to hear it.

An excellent illustration of this is the Copyright and Performers’ Bills, two related pieces of legislation that are before the National Council of Provinces and are currently passing through Parliament.

The Copyright Coalition is a huge industry group that has spoken out against a lot of the legislation. It includes 17 of the most important industry bodies that will be affected by it.

The International Federation of Film Producers’ Associations, the two major music associations Mpasa and Samro, the Publishers’ Association of South Africa, and the National Association of Broadcasters are all members of the group. The Independent Black Filmmakers’ Collective, for example, is one of a few smaller, but equally important, groups that are a part of the mix.

Since its formation in 2017, this coalition has waged a very secretive, behind-the-scenes opposition to the legislation. This is what I know because, as a media organization, we tried to get the organization to comment on the legislation, which we know they despise, but they said they didn’t want to embarrass anyone. Such is our strange framework.

They were completely ignored regardless, so it didn’t really matter. The majority of the group’s major recommendations have not been incorporated into the legislation. Nevertheless, the opposing group, ReCreate, which is in favor of the legislation and includes academics from Wits, was taken very seriously, despite the fact that it at one point claimed to represent the universities of South Africa when in fact it did not.

The issues with the regulation are somewhat straightforward. The government intends to attempt to safeguard the rights of local artists and performers. However, it also wants to increase the number of exceptions to foreign copyright in order to lessen the financial burden on locals. Thus, neither of those things is undesirable.

Be that as it may, these things involve degree; drive the limits excessively far, and the ghost of potentially negative results gets bigger. If you don’t go far enough, you won’t protect anyone. One illustration is performers’ rights. Local actors and artists are forbidden by the law from giving up their rights to royalties. You might think that’s a positive thing.

However, it turns out that numerous actors in movies, for instance, regularly forego royalties in favor of upfront cash. Additionally, considering that only one in ten movies succeeds financially, it makes economic sense to take the money now rather than wait for it to run out. By forbidding neighborhood craftsmen from surrendering future eminences, the regulation is probably going to misfire, since film makers actually won’t make their motion pictures in SA.

Furthermore, in light of the fact that eminences currently can’t be sworn off, there must be somebody who screens each recorded imaginative demonstration that is adapted in any capacity later on and which exudes from a nearby creation. All in all, who will do that? The law has a straightforward solution: As usual, it blames production companies rather than the company itself, with the threat of a significant fine and jail time. However, it goes without saying that the administrative burden will be enormous.

What’s more, there is one more uncovering part of this: How quickly will these royalties be distributed? Clearly, Tom Journey will get more than Tim Cohen — indeed, generally speaking. The regulation doesn’t respond to that, yet it gives the priest of exchange and industry the option to set the rates later. However, how will that decision be made? Who can say? It’s simply strange.

As a result, the scope of local use of foreign content is extremely broad, whereas the scope of foreign producers of local creative content is extremely restricted. First, the law drastically shortens the time before copyright expires. The norm in most nations is 70 or 75 years after death. In South Africa, the law reduces that to 25.

Plus, there’s more. A list of exceptions to copyright is what is referred to as “fair use” or “fair dealing” in the majority of countries around the world. This implies it’s anything but a restriction of copyright to statement little pieces of say, a paper or a postulation, in spite of the fact that it would be copyright encroachment to duplicate the whole proposition without consent.

However, the rundown of special cases in the neighborhood regulation is broad. ” According to Copyright Coalition member Jahmil XT Qubeka, deputy chair of the Independent Producers Organization, “The Bills are so inconsistent with global norms and international treaties to which South Africa is or plans to become a signatory, that they will make the country a global outlier and no one will want to work in or with South Africa.”

The issue is that empathy is necessary for listening, and politicians in South Africa simply do not believe that markets can effectively resolve many of these issues on their own. Essentially, they accept they know better, and they have practically zero compassion for the particular ventures. Thus, in comes the public authority’s pounding extraordinary foot, which will imperil a flourishing and energizing little area of the SA economy.

Source – Dailymaverick

Leave a Comment