SASFED notes the invitation for representation on the “dti Copyright Amendment Bill” published per Government Gazette on 27th July 2015 and thanks the dti for the opportunity to comment on the proposed bill.
SASFED is aware of and supports comments proffered by SOS: The Support Public Broadcasting Coalition. The collaborative comments and review process submission made by an international team of IP lawyers and academics from South Africa and the USA is supported by SASFED with reservations, which pertain particularly to Section 20 where proposed deletions negatively affect creatives like writers and editors, who are not performers and who are not protected by the Performers Protection Act.
SASFED mainly serves the screen industry which includes all aspects of film and television, but also crosses over into other media like theatre and creative writing (prose writing as distinct from performance writing, which is the writing of scripts and screenplays) via the South African Guild of Actors and Writers’ Guild of South Africa respectively. As such, SASFED has requested its member organisations to provide individual written comment, while this document should be seen as a summary of the views expressed by those who are directly affected by any changes to the copyright bill.
It has to be noted that these comments are mostly proffered by industry members who are not lawyers and who are not versed in legal jargon, but whose views still bear direct relation to their experiences with copyright regulations in their daily work within the creative industries.
SASFED Comments
Definitions
- SAGA requests that the definition of „performer‟ be amended to include “actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore, encompassing such literary or artistic work that is created or first fixed in the course of a performance.” This is endorsed by the PMA and WGSA.
- It is suggested by SAGA that the term „royalty‟ be defined so as to incorporate “further commercial exploitation of the performer’s image, including but not limited to residual payments and repeat broadcast fees”. This is endorsed by the PMA and WGSA.
- SASFED notes that it has been proposed that the term “creator” is eliminated and substituted with either “author” or “rights holder”. SASFED must point out that in the audio-visual field – especially in screenwriting – these terms are not interchangeable. To explain why, the process of creating an audio-visual work like a movie or TV series has to be explained:
The “creator” is the person who originates new material and fixes it in tangible form by writing a synopsis and character sketches for a new concept which may – much later – become an audio-visual work. From there, the creator offers his concept to a producer for development. If the producer likes the concept, it is developed into a story which is then pitched to a broadcaster. This development may be done by the creator, but is often the work of a group of people who are usually paid for their input into the creator’s concept. The creator, however, is not reimbursed for the initial concept or his IP, and by rights still holds the copyright to the concept until it is bought from him.
However, the producer, who has paid others for further development, is now classified the “rights holder” or “author” of the work in order to pitch it with a clear chain of title to a broadcaster. If a broadcaster commissions the work for production, scriptwriters are employed by the producer to author the work; to write the scripts on which the eventual audio-visual work will be based. While this is work for hire and does not constitute new copyright for the writers, the writers remain the IP holders of their work and should later be paid their contractually stipulated pro rata share of repeat fees and exploitation.
When the producer signs the commissioning contract with the broadcaster, full copyright is taken by the commissioner/funder under the present dispensation, with the broadcaster then becoming the “rights holder” while the producer remains the “author” of the audio-visual work. This creates huge confusion in the payment of royalties and repeat fees, which are paid out to the author of the audio-visual work rather than the author of the screenplay. In this instance, SASFED proposes that the definition of “author” is expanded to include “author of an audio-visual work” – i.e., the producer, and “author of a literary work or screenplay” – i.e., the screenwriter.
At this stage of the development process, it has been forgotten that the original creator is still the copyright and IP holder of the original and duly put to paper concept, on which the full audio-visual work is based. By rights, the creator should be able to call for an interdict on the broadcast of the audio-visual work until his rights have been legally remunerated and transferred along the chain of title.
While the remuneration and recognition of the creator may be a given and contractually stipulated in first world countries, in South Africa there is not enough competition to give the creator any kind of bargaining power, be it contractually or financially. As such, especially young and previously disadvantaged creators are completely overwhelmed by the system and taken advantage of, with their IP and copyright usurped without any remuneration. Even experienced creators are not considered for residuals and royalties by the broadcasters, who do not even have a line item in their budgets for them.
To SASFED, and WGSA in particular, this is a hugely problematic issue, and SASFED requests that the initial IP and copyright of the creator is recognised by law to protect the creative individuals without whom there would be no audio-visual entertainment.
Section 2: Works and Stakeholders eligible for Copyright
- Phrasing in “Works eligible for copyright”:
(a) “literary works” should include “scripts or performance writing done for the audio-visual sector”
- Editors and Sound Designers make a valuable creative contribution to productions of all genre, including fiction and non-fiction; from a film for cinema to an episodic drama series; from animation to video games. The success of these types of productions depends on the creative talent and contribution the Editor and Sound Designer brings to the collaborative process. SAGE advocates for the recognition of the Editors and Sound Designers’ contributions to the filmmaking process as necessary rights holders.
Section 5: Copyright on Funded Work
- The provisions of Section 5 (2) imply that the State would be entitled to claim ownership of work produced with the aid of, among other agencies, the Lotteries Distribution Trust Fund, the National Film and Video Foundation, the Department of Art and Culture and the dti itself. “Copyright [shall be conferred by this section] on every work which is eligible for copyright and which is made by or funded by or under the direction or control of the state or such international organizations [as may be prescribed] shall be owned by the state or such international organization”. This provision is vague enough to create reasonable doubt as to what methods of funding might trigger an ownership grab. SAGA is particularly concerned at what could happen should a work be funded through a private agency that is underwritten in some way by the government, but where this is not revealed upfront. This is endorsed by the PMA.
- Section 5.2, which applies to work funded by the State, is also of concern to the IPO in that the State has been very helpful in making funding available to the film and television industry through the National Film and Video Foundation and through the dti rebate. The National Broadcaster, SABC, commissions the most work from the production sector. A clause such as this automatically bars the producer, commissioned by the SABC, to negotiate ownership of their product. This clause cannot be overlooked, if section 21 C is to be amended, and IPO seeks clarity on this.
- It is suggested by the DFA that overall copyright in funded productions is split between the funders/commissioners on one side and the producer and creatives on the other. As such, the commissioner would own the physical production, while the producer and creatives would hold the concept/format rights.
- SASFED is extremely concerned that it is proposed that copyright in State or internationally funded productions will automatically rest with the funder or international organisation. It is proposed that, unless stipulated differently by contract, copyright rests with the author/producer of the work and the funders are granted a licence to exclusively exploit the production for a set period of time, after which the exploitation licence becomes non-exclusive, allowing the author/producer to also exploit the material.
Section 9A: Royalties
- The provisions of the current Bill place performers at risk of being stripped of the right to royalties altogether as they do not provide a mechanism for the calculation of such royalty, deferring instead to „contractual freedom‟. SAGA is of the opinion that the Bill should be explicit in this regard, also stating that “the right to receive a royalty payment is not transferable or subject to waiver”. This is endorsed by the PMA.
- Royalties for Editors and Sound Designers, who are presently excluded from any kind of exploitation residuals, should be based on international best practice: For example, Austria uses a flat percentage rate according to occupational groups to distribute funds collected on behalf of filmmakers. The percentage rate for Editors is 14%. Finland uses a sliding scale determined by the “amount of creative input” for individual rights holders for the various types of production. The percentage rate for Editors ranges between 2% (Talk shows and magazine programmes) and 10% (documentaries). The Sound Designer is also recognised across several types of production at 2%.
- SASFED would like to draw attention of authorities to the fact that some local broadcasters are resisting payment of repeat fees – as distinct from royalties - to creatives. While this is something which is regulated by contract and probably cannot be entrenched in the copyright act, organized industry is finding it very difficult to enforce this right, which basically constitutes a “nest egg” or “retirement fund” for their grossly underpaid members. SASFED would appreciate any help and guidance which dti can offer in this regard.
Section 9B: Collection Societies
- SAGA is particularly concerned that Section 9C(3)(c) mandates the collecting society to “distribute such royalties among owners of the rights after making deductions for its own expenses” as there is no limitation on the expenses which may be deducted. It is proposed that a qualifying provision to limit such “reasonable deductions” together with a definition as to what can be considered reasonable, possibly a percentage of the fees collected, to be agreed on and revised from time-to-time. Such a provision would ideally be located in Section 9C (3) (d) “Control of Collecting Society by owners of rights.” This is endorsed by the PMA and WGSA.
Section 13B: Reproduction for Educational Activities
- The DFA is concerned that works can be copied for fair use in education as long as permission is obtained and it is done for non-profit educational purposes. While the sentiment is appreciated, it has to be considered that producers of especially documentary works depend to a great extent on commercial exploitation of their work to be financially sustainable in a very volatile industry. It has to be considered that, if the fair use principle in education is applied to documentary productions, the commercial exploitation of the work and potential income from the work is significantly reduced.
Section 20: Protection of Performers’ Rights
- SAGA is extremely concerned that Section 24 of the Bill (20B “Transfer of rights”) includes a mandatory transfer provision of all exclusive rights to the “producer of such audio-visual fixation, subject to a prescribed written contractual agreement which shall give the performer the right to receive royalties for any use of the performance”. This appears to be an un-rebuttable presumption that attempts to remove a right granted under Section 5 of the PPA, and would in any case be rendered null and void in terms of lex specialis. In SAGA’s view, this provision should more correctly be rendered, "… which shall give the performer the right to receive royalties for any use of the performance, subject to a written agreement to the contrary". This is endorsed by the PMA.
Section 21: Assignment of copyright in commissioned work
- All of SASFED’s member organisations commented with concern and disappointment on the lack of review of Section 21C, which is critical to the South African creative and production industry.
- According to SAGA, the creative sector thrives on innovation and the emergence of entrepreneurs, but the monopolies of broadcasters are being entrenched by the automatic transfer of ownership of intellectual property (IP) by the provisions of 21 (1) (c) “Where a person commissions the … making of a cinematograph film or the making of a sound recording and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, such person shall, subject to the provisions of paragraph (b), be the owner of any copyright subsisting therein by virtue of section 3 or 4”. Failure to address this provision ignores the reality of the creative industries and the challenges faced by independent audio-visual producers in a monopolistic broadcast environment. With the current proliferation of alternative platforms for the exploitation of creative works, monopolistic practices threaten the rights and livelihoods of our members.
- With regard to ownership of copyright in funded productions, SASFED endorses the proposal that funding of a production should NOT give a broadcaster automatic copyright in the production, but rather a licence to broadcast the material.
- IPO states that they are disappointed to see that section 21(c) with regards to work made under commission has remained unchanged. The business of television production relies on the trade of television programmes as assets and commodities in the global media market, so this section particularly affects producers working in the television industry and has allowed broadcaster to hold onto every element of the work, often to the exclusion of producers, in perpetuity. IPO would like to suggest an alternative wording for 21(c), which, while it will not address the entire problem, it will allow producers the right to negotiate the retaining of rights which the broadcasters do not need. This wording is used in both the UK and US copyright acts, among others: “In commissioned work, which is work made independently by an independent contractor, the copyright belongs with the author and not the person who commissions the work. To change this, a contract has to explicitly state that the client or commissioner will own the work under specific conditions.”
South African broadcasters have retained all copyright for commissioned content, yet they have not amassed any value from retaining these rights. They have instead allowed the content and well of ideas, to gather dust in their archive vaults. If true industrialisation, economic growth and transformation is to be achieved in the audio-visual sector, the copyright laws have to change. The knock on effect is continued growth, continued employment and, it is hoped, industrialisation of the sector.
- WGSA endorses SAGA’s and IPO’s standpoints and adds that it is imperative that the new bill will describe the rights of writers and creators within all cinematograph films. It should clarify that royalties / repeat fees are payable to writers / and or writing teams including creators and that no contracts may be signed on behalf of writers contradicting their rights.
Section 21: Orphan Works
- Section 1(g) of the Bill defines orphan works as “works in which copyright still subsists but the right (sic) holder, both the creator of the work or the successor in title cannot be located.” Sect 21(3) provides that “Ownership of any copyright whose owner cannot be located, is unknown, or is deceased shall vest in the state: Provided that if the owner of such copyright is located at any time, ownership of such copyright shall be conferred back to such owner.” However, the transfer of such ownership is contradicted by Section 3 (c) “in the case of copyright that vests in the state due to the fact that the owner cannot be located, is unknown or is dead, the term of such copyright shall be perpetual.” SAGA infers from these provisions that the State will take over, administer, own and receive license fees in perpetuity for work from deceased authors despite bequests, wills or legal processes of inheritance. This clearly runs counter to the aims of Public Domain assignments and crushes Creative Commons agreements and needs to be revised.
- With regard to Section 21 of the Bill which proposes adding a subsection that vests the ownership “of any copyright whose owner cannot be located, is unknown, or is deceased … in the state”. WGSA questions whether this should not specify a deceased person without a successor, as the successor would normally inherit the copyright? The provision as it stands seems to imply that if anyone dies their copyright automatically moves to the state.
Section 22: Assignment and licences in respect of copyright
- The IPO believes that Section 22.3 is potentially very helpful for the arts community in that a contract lapses after 25 years, which allows the artist to renegotiate the terms. This, however, does not apply to cinematographic or audio-visual works, where commissioning contracts presently transfer rights in perpetuity (and in all media). SASFED agrees that all permeations of copyright in audio-visual works need to be looked at and revised, as they presently favour broadcasters and restrict exploitation by the producers, which, in fact, is detrimental to the growth of the local audio-visual industry.
- With regard to Section 22 (b) (3) of the Bill, which proposes that an assignment of copyright should be possible for a period of a maximum of 25 years, WGSA queries why is it felt to be necessary to limit the term?
- WGSA notes that Section 22A(4) states that in the case of orphan works someone granted a licence in relation to the work must pay the state a royalty. Subsection (10) makes it clear that this payment is intended to be held in trust for the rights owner in case they should later be located. Would it not be sensible to indicate clearly in subsection (4) itself that this is the case. Also, there is no indication of what happens to the royalty payment if the rights owner does not ever appear.
Conclusion
SASFED and its member organisations wish to thank the dti for the opportunity to make their detailed written submissions on the Draft Copyright Amendment Bill of 2015. We hope that they will be of value to the dti and will assist the dti to structure a sound and well-informed Copyright Bill which will assist all sectors of the creative and entertainment industry to grow in the knowledge that their IP and copyright is protected by law and available for contractual exploitation.
Introduction to SASFED
The South African Screen Federation (SASFED) is the national federation of independent film, television and audio-visual content industry organisations in South Africa. Founded in 2006 in response to Government’s call for the independent production sector to speak with a united voice, SASFED represents a broad spectrum of industry players, via a combination of industry organisations, guilds and associations who represent either individual members (which currently total close to a thousand people), or member companies (of which there are several hundred), which employ between a few hundred to several thousands of people. As such, SASFED acts in the common interest of many thousands of practitioners across the value chain of the independent production sector. SASFED is guided by a constitution, which states that individuals may not join SASFED directly, but only via bona fide industry bodies.
SASFED has signed a Terms of Engagement with the National Film and Video Foundation (NFVF), an entity of the Department of Arts and Culture, and more recently with the Ministry and Department of Communications (DOC) and the SABC itself, which binds parties to quarterly stakeholder meetings respectively to engage on industry strategy, policy and interventions.
SASFED also has active representation on the premier South African Film and Television Awards (SAFTAS) Board, where it holds two permanent seats, and two alternate seats.
SASFED is a Working Group and Coordination Committee member of SOS: The Support Public Broadcasting Coalition, an advocacy group which drives industry oversight and dialogue on critical policy, legislation, regulatory and management matters pertaining to the local broadcast sector and, in particular, the public broadcaster - the South African Broadcasting Corporation (SABC).
Finally, SASFED also has a seat alongside the broadcasters, SOS, and MMA on the ICASA Digital Content Advisory Board (DTCAG), where the SASFED representative has made several presentations and attends DTCAG bimonthly meetings.
The current membership of seven independent film and television industry organisations, associations and guilds is in ultimate control of SASFED via their allocated members, who collectively make up the SASFED Council. The Chair Person, Treasurer, Deputy Chair and Communications Officer are elected annually from the Council in terms of the SASFED Constitution, and make up the Secretariat which is responsible for the day-to-day running of SASFED and for the dissemination of information to all its member organisations. The Council meets quarterly to discuss industry issues, or meetings can be called to deal with crisis situations.
SASFED is opposed to all forms of discrimination and oppression and stands for a united, non-racial, non-sexist and democratic South Africa. In particular, the federation believes that, for the film and television industry to thoroughly fulfil its economic, social and cultural potential in society, it has to overcome the racial inequalities created under apartheid. To this end, SASFED encourages all members to adopt policies and implement programmes ensuring deliberate access by historically disadvantaged South Africans at all levels of their organisations and industry sectors.
Full SASFED member organisations currently include: The Documentary Filmmakers’ Association (DFA), The Independent Producers’ Organisation (IPO), The Personal Managers’ Association (PMA), The Southern African Communications Industries’ Association (SACIA), South African Guild of Actors (SAGA), South African Guild of Editors (SAGE) and Writers’ Guild of South Africa (WGSA).
