A uniquely symbiotic relationship has long existed between artists and those who fund the arts. From feudal relationships of patronage to the modern day, where artists interact directly with their audience, there has always been a smack of the parasitic mixed with what is supposedly a mutually beneficial affair. For artists working in the film and television industry, things are no different in their dealings with broadcasters today.
A recently published discussion document declares that the Independent Communications Authority (Icasa) intends introducing regulations that will “establish a framework” to guide broadcasters in developing commissioning policies. Although in favour of a “self-regulatory or light touch approach”, Icasa believes that such intervention is necessary because of the inability of broadcasters and the independent production sector to reconcile “their respective interests and challenges”. The independent Icasa has called for public and industry input to their consultation. Submissions are due on January 16 next year.
As Independent Producers’ Organisation (IPO) spokesperson Desiree Markgraaf put it: “It is no secret that independent filmmakers have been battling for fair trade with regards to intellectual property and commissioning practices with all the broadcasters for some years now. Our negotiations with the SABC have been at the very core of this. We have a co-dependant relationship and fixing the terms of trade is on the top of our agenda for 2009.”
Markgraaf said Icasa’s call for submissions regarding the SABC’s commissioning processes “is a positive step”.
Arguments about terms of trade and commissioning procedures should now become a thing of the past. Only recently the SABC, IPO and the South African Screen Federation (Sasfed) released a report entitled Unlocking the Creative and Economic Potential of the South African Television Sector: Recommendations for Legal, Regulatory and Commissioning Practice Changes.
The report was commissioned from attorneys Mkhabela Huntley Adekeye (MHA) Inc in association with Justine Limpitlaw and Spoor and Fisher attorneys. The research was funded by the SABC in a groundbreaking move that should stave off some criticism that the public broadcaster is uncompromising in its dealings with independent producers. Such a bold move by the SABC is to be welcomed and applauded.
The report is also timely given the Icasa consultation and the findings should enrich the debate that is often based on emotion rather than facts.
Kamscilla Naidoo, general manager of Content Support of the SABC’s Content Hub, said: “The intellectual property report which the SABC commissioned together with independent producers is open, informative and goes a long way to drive discussions around the unlocking of creative and economic potential for both the independent industry and the SABC.”
In a nutshell the report acknowledges that the current practice where the broadcaster retains 100% of the rights of a work shown in South Africa robs producers of the opportunity to further exploit their product. The report recommends that the broadcaster should only retain the rights it needs. This would be the right to broadcast the programme once or twice, with a reasonable repeat. Should the parties agree to implement the recommendations it will mean that producers can now sell their product to other broadcasters and get maximum return, even from other platforms or media such as the internet and DVD sales.
The report surveys five countries — the United Kingdom, India, Brazil, Canada and the United States — and focuses on the commissioning of programming mainly by public broadcasters from independent producers. There is also a critical review of the current state of affairs in South Africa. The key recommendations emanating from the research are based on successes in a selected number of countries.
They quote the 2007 Independent Production Census (KPMG, Bank of Ireland, Pact), which reported that there has been an increase in the rate of profitability of the independent sector from 7% in 2005 to 8,4% in 2007. “What we discover is that the smallest production companies have on average increased their profitability far in excess of the rest of the industry. They have almost doubled profits to match the industry average. More than half of the increase in profitability in the sector has come from the exploitation of secondary rights — that is, distribution, format sales and secondary TV sales.”
Reaction to the report from the three parties that commissioned the research has been cautiously optimistic. Sasfed’s Rehad Desai said the report “represents the culmination of intense and drawn-out discussions with the SABC”, and that his organisation is satisfied that “sufficient goodwill and common ground” now exists as a result of “critically important research”.
The industry can look forward to an indaba next year that will “unpack the challenges of intellectual property in commissioning, acquisitions, licensing and partnerships”, said Naidoo.
There are great expectations, but for those who survive off it, the broadcasting and independent production ecosystem needs to find sustainability or it could stagnate and develop into a backwater video shop.