SAGA Submission on the Copyright Amendment Bill
The South African Guild of Actors (SAGA), a branch of UASA that is affiliated with the Federations of Unions of South Africa (FEDUSA) and representing actors across the dramatic arts sector in South Africa in film, television and stage submitted a comprehensive position paper on the Copyright Amendment Bill to the Trade and Industry Portfolio Committee in Parliament on Friday.
SAGA was elected as a member of the International Actors Federation (FIA) in 2012, alongside Actors’ Guilds and Unions from 68 countries around the world including SAG-AFTRA in the USA, Canada’s ACTRA and British Equity, as well as GAG in Ghana, Morocco’s SMPT and AGN in Nigeria. SAGA has been a member of the South African Screen Federation (SASFED) since 2009, where collaboration within the Independent Production sector, including Producers, Writers, Editors, Agents, Animators and Actors’ organizations, ensures that the sector remains professional and maintains standards.
SAGA Chairman Jack Devnarain says although the Guild is fundamentally concerned with the protections afforded by law to performers, and has made substantial submission on the Performers’ Protection Amendment Bill 2016, it also harbours substantive interest in revisiting the Copyright Act 98 of 1978.
“SAGA is of the view that there are significant failings in the current draft which would lead to serious consequences, whether unintended or by design. We argue that these flaws threaten the rights and livelihoods of our members and may cause damage to the film, media and creative industries in which our members operate. Accordingly, SAGA makes this submission in our own interests and in support of submissions from our partners within SASFED and the creative sector,” Devnarain said.
SAGA wants the amended copyright laws to ultimately provide clarity and guidance on issues of authorship, the protection of foreign works, performances, fixations; royalties and collecting societies respectively.
“SAGA believes that the producer should not be considered the author of the cinematographic work but just the copyright owner unless otherwise agreed. Of particular concern to us is that there appears to be a major contradiction between section 1, which deals with the definition of an author in a cinematographic work and other sections, most notably section 21, which provides presumes copyright ownership when the work is made in the course of an employment relation,” said Devnarain.
He said during SAGA’s submission on the Performers’ Protection Amendment Bill 2015 a case was made for a clear distinction between phonograms and audio-visual fixations based on the Beijing Treaty on Audio-visual Performances guidelines of 2012.
“We submit that section 9(A) should include the uses of audio-visual fixations for which a remuneration right is due by virtue of the Performers’ Protection Amendment Bill which above all should make it clear that such remuneration right is strictly due to such uses of audio-visual fixations and not phonograms.
He noted a clause in the current draft provides for the creation of collecting societies in order to recover royalty payments that may be due.
“Section 9A (1) (b) of the principal act has been amended to provide that royalty payments shall be determined by an agreement between the user of the sound recording, the performer and the owner of the copyright, or between their Collecting Societies. Section 9A (1) (c) states that in the absence of an agreement contemplated in paragraph (b), the user, performer or owner may refer the matter to the Tribunal or they may agree to refer the matter for arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965),” he concluded.
This amendment introduces a cumbersome level of complexity which is further aggravated by the requirement of prior clearing of this right. Section 9 (1) (a) – (aE) fails to recognise the realities of the broadcast environment. The assumption appears to be that the owner of the copyright seeks to prevent the broadcast of the recording altogether, rather than to ensure the payment of a royalty”.