Ramaphosa queries proposed changes to entertainment industry laws
President Cyril Ramaphosa has raised concerns about the constitutionality of two proposed laws that seek to regulate the entertainment industry and provide for the protection of performers and the copyrights of writers and publishers.
Artists have been calling on Ramaphosa to sign the Performers' Protection Amendment Bill, which has been sitting in his in-tray since March.
Parliament heard on Tuesday that Ramaphosa's lawyers wrote to the departments of trade and industry and arts and culture to raise concerns over the consultation process, as well as whether a section of the Copyright Amendment Bill infringed on some people's rights.
The Performers’ Protection Amendment Bill is aimed at filling the gaps in previous legislation that did not provide for:
- the regulation of collecting societies;
- the standardisation of contracts;
- economic and moral rights for actors; and
- the right of fair use and re-use of creative material.
The amendments of the two bills also seek to bring the industry in line with international standards.
Arts and culture director-general Vusumusi Mkhize told the portfolio committee on arts and culture: “They also wanted to check whether it would not infringe on the rights of individuals, rights of ownership and distribution. There are various contestations.
"Also critical, the president was asking whether we did consult and it has been indicated that it started some time back at the department of trade and industry and had several consultations.
“Our view is that as much as there are diverse views on these issues, we cannot wait and not sign. Let's continue and where there are issues, let's address issues step by step. The formation of a tribunal would probably address some of the challenges faced."
Mkhize explained that the bills have not been referred back and are still with the presidency, but that Ramaphosa had raised these questions.
He said there had been various parties that wrote to the presidency and made representations objecting to the bills. These included writers and publishers, who felt particularly strongly about section 12 of the Copyright Amendment Bill, which deals with issues of intellectual property. They say this section does not sufficiently protect them.
On the other hand, there are performers who feel the Performers' Protection Amendment Bill is long overdue.
A commission led by judge Ian Farlam found that artists in particular remained vulnerable in terms of royalties. Mkhize said the department has been trying to resolve the issue of royalties, particularly after the Farlam Commission noted a gap in the law where they are not protected.
From a copyright perspective, those who create work before it's performed are concerned that they don't have adequate protection in terms of section 12 of the proposed law. They are not sure what it will mean for them if someone re-uses their work without permission.
Mkhize said this point was raised by publishers and writers themselves, who are concerned about how will they be affected as producers of creative work, including educational work.
There have also been concerns about digital technology. It is not clear what guarantees are there when creative work is published on digital platforms.
Mkhize said in terms of a way forward, it had been discussed whether the president should sign the bills at all or refer them back to parliament so that the issue of section 12 could be addressed.
He noted other concerns that the "safety measures" in the act may not be adequate and the proposed tribunal may not be strong enough to deal with matters that arise, including the costs involved.
Officials of the two departments are scheduled to meet on Wednesday before giving feedback to the presidency.
Ramaphosa previously advised the ministers of the two departments to meet with industry representatives. That meeting did take place, but there were strong views both for and against the bills.
“There were those that were saying, 'Sign so that we start somewhere and at least the performers are protected by this act'. There was another idea that was saying, rather separate the two bills of the writers and copyright – but that has its own complexities," he said.
The department of trade and industry is the custodian of the bills, while arts and culture is the department that look after artists' interests.
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