Misplaced: Behind the scenes of Queen Sono. Similar international co-productions are likely to be adversely affected by the copyright and performers Bills. (Netflix)
The Independent Producers Organisation (IPO) has written an open letter to President Cyril Ramaphosa asking him not to sign the Copyright Amendment Bill and the Performers Protection Amendment Bill now before him. The IPO fears the negative effect they will have on the film and TV industry.
The “intertwined” Bills, says Nim Geva, a producer at Quizzical Pictures and co-chair of the IPO, are intended to “empower creatives” and update South Africa’s copyright regime, but they create immense difficulties for producers.
The rights, as well as potential revenue streams, of creatives such as actors and scriptwriters are apparently enhanced — but to the detriment of producers, who are after all the people creating the projects that employ and pay the actors, scriptwriters, musicians and other creative personnel.
The government’s “heart is in the right place” when it comes to these Bills, says Geva, but the Bills as they stand (there are a few improvements on the first drafts) fail to deal with the complexity of the industry. They make it much harder for producers to recoup their investment, or even to calculate the long-term costs. They add more risk to what is already a high-risk business, says Geva, leaving producers in “legal limbo”.
International productions shot in South Africa would have to adhere to the Bills, pushing up costs and making this country much less attractive as a movie or TV-making destination. “They could go elsewhere,” says Geva.
International productions made here bring significant revenue, provide employment and develop expertise. That could be lost — after years of strenuous effort, and expenditure on facilities such as studios, to get foreign business into South Africa.
Besides being badly drafted, with much ambiguity and contradiction, the Bills create a huge administrative burden for both producers and government. The state will now seek to prescribe royalty rates and standardise industry contracts. Compulsory remuneration models would have a serious effect on the freedom to contract in a field that requires contractual fluidity, given the many different role-players involved.
The Bills appear to be too broadly formulated. Actors such as extras (and there can be hundreds on one production) will be due residual payments if the work is rescreened.
All the arts industries are lumped together, with no distinction made between, say, the writers of books and the writers of screenplays. An old TV show rescreened 25 years after it was first made would now have to renegotiate the script rights.
Intellectual property lawyer Stephen Hollis, a partner at Adams & Adams, who participated in the parliamentary hearings on the copyright Bill, says the “unintended consequences” of the Bill are “deeply concerning”.
The Bills, according to Hollis, will make it practically impossible for producers to make money from content after 25 years, when all copyrights in scripts and music revert back to the authors. Every single performer appearing in the production regains those rights, so a production house would have to renegotiate terms for continued use with all these parties — hundreds of people, even thousands in large productions. There are penalties imposed by the Bills for infringements.
Unwaivable, perpetual royalties are introduced for local and foreign performers, whether the production has earned a profit or not. This “simply increases the risk profile of South Africa as a content-production destination”, says Hollis. “International investors will think thrice before doing business in South Africa or employing South African on projects.”
The copyright Bill introduces “arguably the broadest set of copyright exceptions and limitations that the world has ever seen”, says Hollis. In spheres other than the film and TV industry, it creates huge problems for educational writers and others. Parts of the Bill reduce protections for content producers, giving “government and digital platforms a plethora of new ways to access, distribute, adapt, copy and use protected works, without having to remunerate, recognise or obtain a license from the rights holder”.
One of the experts on Parliament’s advisory panel, André Myburgh, said in an opinion that the Bill was constitutionally flawed because it breached international copyright treaties. He was ignored.
The only hope for the industry is that the Bills are referred back to Parliament by Ramaphosa on constitutional grounds.
“Substantial additional work needs to be done,” says Hollis, “including appropriate economic impact assessments, which were not undertaken.”