S. Africa - Broadcasters worry about 'unfettered' state power in new law on copyright

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The aim of the Copyright Amendment Bill — to modernise SA’s copyright law — was laudable, but some provisions would harm the broadcasting industry and limit freedom of expression, MPs were told on Thursday.

Filmmakers, musicians, broadcasters, print media and many other interested parties have been submitting their views on the bill during public hearings organised by Parliament’s portfolio committee on trade and industry.

MultiChoice and M-Net argued certain of the bill’s provisions would negatively affect investment by broadcasters in local film and television content.

They are concerned about the powers that would be given to the minister of trade and industry, in consultation with the minister of communications, to set local content obligations through regulations they believe would be unconstitutional.

They also oppose provisions giving the minister of trade and industry "wide and unfettered" powers to make regulations on the terms of standard contracts.

The minister would have the power to prescribe compulsory and standard contractual terms, as well as royalty rates or tariffs without guidance being given in the bill about how this power should be exercised.

The two companies said this would disincentivise investment in creative works, which would become economically unviable.
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Broadcasters needed the freedom to contract without undue interference by the state.

They argued the problem of owners of copyright, authors and performers lay not in the terms of their contract but the failure of collecting societies to pay them the funds received from the users of copyright. The bill should deal with this weakness and not try to prescribe the terms of contracts.

MultiChoice and M-Net also asked that the provisions dealing with infringement of copyright and piracy be strengthened.

"The amendment to the Copyright Act is taking place at a critical time," the two companies said in their submission.

"The biggest challenge is that local broadcasters must compete with global internet players for audiences and revenues but these internet competitors are not burdened with any of the heavy regulation imposed on broadcasters and make no investment in local content."

Kagiso Media manager for regulatory affairs Collen Dlamini warned that making the funders of a work the owners of the copyright would result in media owners and producers shunning incentive schemes of the Department of Trade and Industry as this stipulation would mean copyright would vest in the department.

The executive director of the Freedom of Expression Institute, Tusi Fokane, pleaded for the widest possible application of the "fair use" principle that will be introduced into copyright law for the first time. Fair use constitutes a legitimate defence against claims of infringement and means that prior permission for the use of portions of a work is not required.