Paid a pittance: The artist’s path is never linear, but it has over the years become increasingly unsustainable. Photo: Unsplash
The artist wellbeing and wellness industrial complex is always a bubble at the verge of bursting. A system that doesn’t care about the fate of artists as long as they produce has sucked them dry. At some point, we must move away from self-help slogans, social contributions for their funerals, and eulogies that lament the exploitation of a system that never gives anyone compensation for their art until the next victim bites the dust.
We have to shift from slogans to material analysis. What does it actually mean to be someone who gets paid to make art? The artist’s path is never linear, but it has over the years become increasingly unsustainable. Historically South African artists have always lived against the grain since the apartheid created by oppressive laws, and many of them have borne the brunt of creating without being compensated enough for their work.
Many of them die broke, having been driven to insanity, blacklisted or pushed to the fringes of society for speaking up against slave wages or being paid a pittance with no royalties for their art. They die wishing the South African government could approve one piece of paper that would change a tide to their financial struggles. The approval of the Copyright Amendment Bill is a meal ticket for South African artists, it is a long-term recognition for their art and a piece of legislation that translates to security.
The Copyright Amendment Bill is crucial in securing the royalty rights for performers but highly contested by those who benefit from the art and those who create it.
This contentious piece of legislation was passed by the National Assembly on February 29, 2024, and delivered to the President for his approval. The Copyright Amendment Bill is intended, according to its drafters, to update the Copyright Act 98 of 1978 (Copyright Act) in order for it to be more effective for those who produce art, educators, researchers, and people with disabilities.
The Copyright Amendment Bill was referred to the Constitutional Court by President Cyril Ramaphosa to rule on its constitutionality, following concerns about provisions like “fair use” and royalty amendments. The bill, which aims to update the 1978 Copyright Act for the digital age, has faced opposition from stakeholders who believe certain aspects could negatively impact creators and international trade.
In response to a court order, a separate but related case has spurred civil society organisations to pressure the President to sign the bill into law, citing its importance for South African artists, The Constitutional Court made a ruling on aspects of the Copyright Amendment Bill in the case that was brought by Blind SA v President of the Republic of South Africa.
In September 2022, the court declared certain provisions of the existing Copyright Act unconstitutional because they hindered the creation of accessible formats for people with visual and print disabilities. While the court suspended its declaration and implemented an interim remedy, the President later referred the revised Copyright Amendment Bill to the ConCourt in October 2024 for a ruling and a final decision is still pending.
Artists have spoken strongly against the bill, highlighting that they are tired of dying poor, with people having to contribute donations for their burials, while their art is being enjoyed, their music continues to be played on various mediums.
The argument is that the status quo allows a continuation of this exploitation with artists dying poor. The main issues with the Copyright Amendment Bill include concerns that it could negatively impact creators and publishers due to broad “fair use” provisions, which critics argue might lead to work being used without adequate compensation.
It also faces criticism for potentially creating conflicts with international trade agreements, being unconstitutional by arbitrarily depriving copyright owners of their property through provisions like fair use exceptions and retrospective royalty rules, and harming the educational and creative publishing industries.
The Bill of Rights itself does not explicitly contain a section dedicated to “compensation” for artists. The right to receive remuneration for creative works is primarily addressed through national legislation such as the Copyright Act, 1978, and the pending Copyright Amendment Bill. This legislation deals with intellectual property rights and fair remuneration (royalties) when artistic contributions generate income, which are legal rights that can be pursued under general law, not as a direct, standalone right to “compensation” within the Bill of Rights itself.
The exploitation of artists is caused by the legal gap in the area of non-security. Zakes Mda, a well-known South African author, recently stated in a prominent journal that he belongs to a team of authors who won a historic victory. This represents a class action lawsuit in the United States of America against the artificial intelligence firm Anthropic, alleging the unlawful use of their books to train AI models.
On a few personal social media accounts Bra Zakes confirmed a few months prior that his novels together with Nadine Gordimer’s were used to train AI without their consent, and that in a class action lawsuit they have come victorious against the US-based company. It is with this exploitation of artists’ art that the right to fair use in South Africa must be incorporated into this piece of legislation, to give royalty rights to the artists.
Our role as art consumers is to keep supporting the artists and look after the artist’s interests; advocate for their financial security by agitating for such pieces of legislation as the Copyright Amendment Bill to be enacted into law.