By Bukamuso Sebata and Elaine Wabwire
On 16 March, Makhanda City Hall was host to a public hearing on the Copyright Amendment Bill and Performers Protection Amendment Bill. The purpose of the hearing was to get local creatives to make suggestions and propose changes to the proposed Bills before they are sent back to Parliament and legislated.
Among the audience was Simamkele Crakydy Xako, a choreographer, art facilitator, and performer. His main concern with the proposed Bill was that it felt like “a full meal without the meat in it”. Most of his questions were about dancers getting royalties, having their intellectual properties protected, and the Bill protecting their work in copyright infringement. For instance, he wanted to know if the new Bill would protect him if he created a dance that trended in other countries, like China or Australia, and he was not given due credit for it.
A significant concern that resonated with every artist in the room was the fair use policy in the Bills, and the proposal that the minister of Trade Industry should be a part of the negotiations between artists and employers. Attendees argued that fair use allows and facilitates the exploitation of artists’ works, while fair dealing allows artists more control over their work.
Fair use allows people to use material without asking for the copyright holder’s permission and gives people more leeway to get away with exploiting artists, fair dealing has a narrower scope than fair use, and the allowable uses are typically limited. But fair dealing does not allow the creation of new works that incorporate copyrighted material. One of the attendees suggested that the Bills be sent back to Parliament so that they can replace fair use with fair dealing.
This is because even though the current act is a disadvantage to the creative industry, fair dealing is one aspect of it that protects them. Fair use allows people to take creators’ work and upload it on their personal social media platforms, and it’s only copyright infringement when you find out about it. If a big company uses a portion of your work without your permission under fair use, you might not be able to afford to take them to court. Creatives believe that fair dealing levels the ground, somewhat.
Artists also demanded proof that fair use would benefit them if the relevant bodies refused to swap it for fair dealing. Another issue was how the new changes will award ministers power they do not need or deserve – the power to determine contract agreements and royalty negotiations. Local artists believe that politicians must be at an arm’s length to the creative industry instead of being right at the centre. A better solution would be a self-regulatory board and tribunal to deal with disputes. Artists feel that the Copyright Amendment Bill is progressive, but there are two dangerous things about it: fair use and a minister overseeing contracts in the industry.
While other artists and creators welcome the new Bill, albeit with a few suggestions, Lizwi Mvuyisi believes it is useless for artists in the township. The government has abandoned these artists, not doing much to uplift them to the point where this Bill can’t even apply to them, said Mvuyisi. Some of these artists have had to turn tiny bedrooms into recording studios because there aren’t any resources for them. They cannot be a part of the discussion because these are issues outside their world, even though they belong in the same industry being catered to.
One of the objectives of the Copyright Amendment Bill is to safeguard the intellectual property of creative individuals. Without such protective measures, creatives from smaller towns like Makhanda may fall victim to the unfair practice of more giant corporations stealing their work with attribution or compensation. Local fashion designer at Zuu Productions, Ntombozuko Madina’s designs were stolen in the past. Madina says “registering your designs is important; it is the first step in ensuring that your work is protected”.
Also commenting on the importance of protecting intellectual property, Zamamiya Majola of Mykhanda Media said, “It is about placing a value on it. With a lot of creative expressions placing value on your work is tricky. When you copyright something, it is connected to the value you give to society through it.” By securing the rights to creative works, new avenues for collaboration open up new issues that may have been overlooked or marginalized in the past.
The two bills emphasize the importance of formalizing the creative industry, which is frequently subject to exploitation. This move aims to ensure that performers, artists and creatives in Makhanda and other parts of South Africa receive better support and protection by providing the legal framework to safeguard their rights.
But with seemingly tedious and complex laws, young people may not take the initiative to determine how the law works. Majola says “the most progressive thing to come out of these bills would be a commitment to the implication and education of these bills”. Educating creatives on the Bill beyond the legal realm and following through on implanting these acts is the best we can hope for, and it is what we should expect as the public.
Photo: Lwanda Mtyobo
