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South Africa's Copyright Fight: It's Big Tech vs. Artists as Fair Use Reform Awaits a President's Pen

ISSUE 05 2020 - COMMISSIONED WITH ONE TIME USE ONLY
Illustration by Alicia Tatone

Amid lobbying from American tech companies, artists are smashing guitars in an effort to stop fair use exceptions from exploiting their works.

JOHANNESBERG — In 2011, as music streaming was spreading to more countries, a group of South African musicians and performers petitioned the government to reform the country's copyright laws to offer more protection.

Led by famed Kwaito producer Gabi Le Roux and performer Eugene Mthethwa, the artists were concerned that weak copyright protection and rampant piracy were harming music creators, who were already struggling to make a living because of largely ineffective collecting societies.

A decade later, amid lobbying from copyright skeptics, that push for reform is backfiring. South Africa's creative community is battling to stop an amended copyright law passed in the country's National Assembly in December 2018. They say the bill — the first significant update of South Africa's copyright laws since the late 1970s — would actually leave creators worse off than before.

The bill is still sitting on the desk of South African President Cyril Ramaphosa, who needs to sign it for it to become law. In recent months, artists have staged rallies on the steps of the Parliament and recorded a "We Are the World"-style protest anthem called "Vikela Mina" (Protect Me). In the song's video, a musician uses an electric guitar to smash a concrete wall representing the copyright bill.

At the heart of the debate is whether South Africa should retain its enumerated exceptions to copyright for uses like education and the broadcasting of public speeches, or move to a more flexible system that would be more like U.S. fair use.

Developing countries like South Africa have generally tended to see copyright as an import, not an export. At a parliamentary hearing on the bill, Universal Music South Africa managing director Sipho Dlamini disputed the "myth that international record labels make money in South Africa and then send all their money overseas, instead of reinvesting it into the market." According to Dlamini, from 2014 to 2016, an average of 68% of revenue generated by international record labels remained in South Africa.

South Africa is one of many countries where creators and the media business are locked in a struggle with American technology companies and their supporters over how copyright law should apply online.

Technology companies want governments to adopt policies similar to the U.S. fair use doctrine, which is more flexible than the "fair dealing" laws in Commonwealth countries or the list of exceptions in nations with civil law systems. Their argument is that fair use is essential for digital innovation, and thus economic growth. Countries looking to modernize need systems for machine learning, data mining and large-scale indexing — and for that, they need more exceptions to copyright than the current laws afford.

But many believe South Africa's fair use plan will create too much ambiguity. The amended law is an expansive "hybrid" model that borrows from various countries' fair use systems, says Neil Turkewitz, a former head of international affairs at the RIAA, who lobbies on copyright issues but hasn't done any paid work on South Africa's law. "There is no global precedent for this hybrid system," says Turkewitz, adding, "Everything about this introduces greater uncertainty around the environment for creatives. This creates more risks and legal ambiguity."

Supporters of the law disagree. Sean Flynn, a law professor at American University who is part of a coalition of 100 copyright academics around the world, says the amended bill would ensure that "creators have the exceptions they need to make fair uses of existing works to create new works." (Flynn acknowledges that his university has received "unrestricted gifts" from many corporations, including Google, but says "those contributions are gifts and not contracts." He adds that Google's support never amounted to over 10% of the university's total funding.)

"The provisions of the Copyright Amendment Bill are not about Big Tech," says Flynn. "They are about bolstering the power of South African creatives in their dealings with the monopoly labels and publishers."

The government says the updated bill is needed to improve regulation of collecting societies, which were failing to recover millions in royalties from broadcasters and other users. But lawyers say other parts of the bill could damage South Africa's music industry, such as restricting copyright terms to 25 years, a "contract override provision" that could make some contract terms unenforceable and a clause that gives South Africa's minister of trade and industry powers to regulate contract terms and royalty rates.

A Google representative says that the company provided feedback to the government on how the South African law "may impact the way people access content online," adding that it "support[s] updating copyright rules for the digital age."

Le Roux says the wording of the fair use exception is "too vague," and music industry lawyers say it will create ambiguity that could erode investor confidence in the South African music business and harm efforts to develop new local talent. Music lawyer Stephen Hollis, who's against the bill in its current form, predicts that if the bill passes the number of legal claims "would be absolutely staggering."

The government is betting that the bill will help put more money into artists' pockets. South Africa has long struggled to collect royalties for music creators. A 2011 Copyright Review Commission found that nine years after the enactment of needletime legislation in 2002, "not a cent had been paid in royalties to musicians and record companies." Cases were being tied up in courts and a "prolonged filibuster" was delaying payments indefinitely. In 2010, the South African music industry collected just 357 million rand ($45 million) in royalties. The situation has not improved much since then. In 2018, the South African Music Rights Organization (SAMRO) reported 472 million rand ($31 million) in music license and royalties, up 1.4% from 2017.

South Africa reported $51.4 million in total music revenues in 2018, down 2.7% from $52.8 million in 2014, according to the IFPI. Performance rights revenues more than tripled in that period, to $16.4 million.

While newer provisions in the law are meant to provide an antidote to one-sided industry contracts, Hollis believes they would fall especially hard on smaller publishers and independent record labels. "They may well find it challenging to do business in such an over-regulated and rigid business environment," says Hollis.

The unfortunate irony is that if South Africa's new law is signed as-is, it could impede local music production at a time when there is a surge of interest in sub-Saharan music –– which the major labels largely abandoned when the physical industry crashed. "If they fail their own community, they may get cheaper access," Turkewitz says. "But it's access to foreign materials."

This article originally appeared in the Feb. 29, 2020 issue of Billboard.


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