Aspects of Governance
One solution to the South African music rights sector would be state-oversite.
1. The Copyright Review Commission (CRC) was established by the Department of Trade and Industry (DTI). The South African music market cannot support more than one collection society for each class of rights. This was the finding of the Copyright Review Commission established by the Department of Trade and Industry in 2015. If this is to be observed SAMPRA and IMPRA need to unite and AIRCO and RAV need to unite. Unity is maturity. In the event of a uniting of these assocciation, the MOI of the united body should be amended to ensure that the interests of the SMME members are effectively protected.
2. The Companies and Intellectual Property Commission CIPC is tasked to play the central role in the regulation and accreditation of the industry.
3. Companies Act
4. Competition Act
5. Financial Intelligence Centre
6. PAIA (Promotion of Access to Information Act),
7. Performance Protection Amendment Bill (PPAB) and Copyright Amendment Bill (CAB).
8. Revised White Paper on Arts, Culture and Heritage
Challenges in the Rights industry
1. Under-collecting: SAMRO collects only 15% of its potential market
2. Lack of proper data management and monitoring: The members’ global database is accessed using CIS-net. It is inaccessible to the DTI, SARS and the Reserve Bank, raising the question of the need for an IP deeds office.
3. “Split membership:” South African collections are hidden off-shore and illustrated by the very small amounts of foreign income that make their way back to South Africa.
4. Content Aggregation: Labels, publishers, CMOs and associations are do wholesale negotiations with South African content, data and copyrights off-shore.
5. “Market share:” 85% of royalty shares are sent off-shore to the three multi-nationals, Sony, Warner, Universal and a handful of independents including Kobalt and BMG.
6. Undocumented Works: Seven categories of royalty collections (“DP” Public Domain, “NS” No Society, unknown author, no set list, unknown publisher, undocumented works and undocumented royalties not claimed within three years)are paid into a collection pool known as “royalty distributions written back.”
Challenges in the Copyright Law
The current international copyright considerations include the internet and the ubiquitous use of the smartphone. “Data", "databases", "hosting", "linking" "safe harbour" are essential aspects of the monetising of copyrights today. All online copyright works are used, traded, distributed and paid for with and by data.
No copyright law regime yet has considered a “data” right when work is used for purposes of accessing data on alistener/viewer? No copyright law regime yet has considered an “advertising” right when works are used for the purposes of advertising to a listener/viewer? Just look at the example of You Tube making all its money from advertising, text and data money, and making no money fromreproduction/performing rights of a music video.
In South Africa there are a number of challenges. There is no Safe harbour provisions to provide an appropriate balance between DSP copyright holders and users. Online contracts remain un-regulated and fall into the “One World” licence, which “transcends geographic and national boundaries.” This means we need to import our own copyrights. The Electronic Transactions Act 25 of 2002 as amended favours those that monetise the data rather than those that create it.Copyleft and Creative Commons undermine copyright law.
South Africa has failed to sign international copyright treatise including Berne convention, Rome Convention and the Wipo (World Intellectual Property Organisation) treatise of 96.
Our music is performed around the world yet SAMPRA only collected R100k in the EU despite plays totalling a value of R2M. This is because of South Africa’s failure to ratify the Rome Convention and the WPPT (WIPO Performance and Phonogram Treaty). EU states are prohibited from making any payment for a song that was recorded or fixated in a non Rome convention country. Songs created in SA are not protected. When the CAB was published there was intention by parliament to ratify WPPT. The recommendation has to come from DTI. And once parliament is satisfied with it, it is sent to the president and the state advises the president that it is ok to sign and he signs it.
A copyright insider has referred to African copyright law as “a mixture of common law and civil law copyright regimes.” As a result, 30 000 of Africa’s historic and contemporary cream of the crop writers have taken membership (for performing rights) in the UK (PRS), France (SACEM) primarily, and other EU states, and relatively few in the US. 99% of these international collections are done so without the knowledge of or reporting to, their respective national tax regimes.