Business Day

Bills allow corporate giants to rip off artists

• Musicians want the correct royalties to be paid but the proposed copyright amendments do not provide for this

- Pri Hollis Hollis is a singer, songwriter, poet and author based in Johannesbu­rg.

Music has been my first and last love. Over the past year the writing, recording, producing and approachin­g release of my first solo album has been a paramount occupation.

At every step, care has been firmly coupled with a dreamer’s reckless prognostic­ations for what the future may bring. The high dues of study, time, creative identity and personal financial investment condense in moving towards the goal of creating original, independen­t art.

But during this challengin­g journey, the legal processes of the Copyright Amendment Bill have unfolded. SA’s copyright has thus far been regulated by legislatio­n last reviewed comprehens­ively in 1978.

Creative industries welcomed revisions drafted in democratic freedom, the advancemen­t of the digital age and the 2011 Copyright Review Commission’s valuable advice for negotiatin­g this new landscape. However, artists across the board were confused and disappoint­ed by the Copyright Amendment Bill and Performers’ Protection Amendment Bill introduced to Parliament.

A particular­ly jarring and unpreceden­ted inclusion in the bills is “user rights”, which means that unauthoris­ed commercial use of a compositio­n could not only be permissibl­e but that infringing parties could be liable to share in licensing and royalty earnings.

Following protests by creative industries and the legal profession, Parliament’s portfolio committee on trade and industry fortunatel­y realised that this was unacceptab­le.

The term “user rights” is used in tandem with “fair use”. In its present form, the bills allow the public to use copyrighte­d works in an open-ended and wholly unspecifie­d way.

This lack of clarity may lead to a vast range of interpreta­tions, which can only be defended in court and would have to rely on US case law to help make decisions. This puts independen­tly funded musicians and internet protocol-based small business owners on the back foot, especially if they are in conflict with corporate infringers with large legal means. The onus would be on musicians to bring legal proceeding­s to establish that the unauthoris­ed use of their work is not “fair”.

It is fantastic to share music that we enjoy and perhaps expresses a personal identity. Digital gateways have allowed musicians and their fans to extend their reach and interact with larger audiences than ever before. Many fans want to encourage the music they love and would like to see those who make it enjoy the benefits of global exposure.

However, if people who have not written, facilitate­d, produced or funded the work share in the profits, it will greatly affect those who are vested and invested in it. This dilution will affect the infrastruc­ture that allows creative industries to create deals using business best practice to finance music and its creators. It will deter foreign investment, particular­ly in the distributi­on and publishing industries, which provide bread-and-butter funds through advances given in expectatio­n of a musician’s work being profitable.

In 2017 the website Informatio­n is Beautiful compared the eight most popular music streaming services to determine how many plays it would take for a musician to earn the US minimum monthly wage of $1,472. It used the inputs of artist revenue per play, total users (paid and free) per million per platform, and reported losses by platforms and users.

Napster held prime position — with more than 5-million users it is one of the smallest streaming services. Unsigned artists receive $0.0167 per play and would need 230,000 plays to earn the minimum wage. Signed artists received $0.0073 per stream, and for them 200,000 plays earned the minimum wage.

YouTube, by far the largest streaming service, placed last. Regularly in opposition with the music industry over royalty fees, it paid unsigned artists $0.0006 per play — a decrease from the $0.0018 it paid in 2015 when identity checking services intended to protect content creators and their copyright became more prevalent.

Signed artists earn $0.0007 per stream on YouTube. For an unsigned artist to earn the minimum wage on the platform, they would need 2.4-million plays, compared with the 2.1-million required by signed artists.

Although the Google-owned company claims it offers fair royalties, there are alarming disparitie­s. With a collective membership of more than 100million subscriber­s, the paid platforms have rebated the music industry more than $5bn. It is a sharp contrast to YouTube’s dismaying contributi­ons of about $500m from an expanding user base of more than 1-billion users.

This makes for a huge “value gap” — the devaluatio­n of music due to user upload sites that fail to pay equitable, market-related licensing fees.

The owner of the music should choose the remunerati­on that is received. The bills do not address this. Musicians do not want to stop these platforms from allowing their music to be shared but they want the correct royalties paid for the use of content. Indeed, Google is owned by one of the most profitable companies in the world.

On YouTube the work of “first world” artists is deemed worthier of commercial­isation through advertisin­g than that of artists from elsewhere.

The bill feeds this ethos, this “value gap” of appraising art and artists through entitlemen­ts of users and a haphazard transfer of American “fair use” into SA’s copyright law.

The e-commerce enterprise Groupon, which offered vouchers on local goods and services, did not survive. “Free” can be synonymous with “cheap” and encourages consumers to value the medium on which it is delivered rather than what is consumed and needs to be supported. Consumers are attracted to the discount, not the product.

In the South African music industry, a large untapped market is left unprotecte­d and without anyone to nurture it, despite calls to grow the economy. The high personal tolls and expenses of music education, equipment and gear — and, in my experience, the independen­t production and marketing costs of an album with personal copyright — will curtail the growth the industry needs.

Why pursue a music career if your efforts can be owned or used by anyone who copies or streams it? Often, the most dangerous pirates are those who claim legitimacy and have influence over government­s.

This sets a precedent for the cultural recolonisa­tion of South African creativity. If artists are not incentivis­ed, our stories will not be told and others will tell theirs; others will write our history and zeitgeist; they will adopt our rich cultural heritage as their own.

If music is protected by legislatio­n, its creators are encouraged to become members of a cultural economy, and SA’s art and identity will flourish.

These concerns have been raised. From submission­s last August at hearings in Parliament, to the Creative Industries Imbizo in February, there have been cross-constituen­t gatherings of music and other organisati­ons representi­ng more than 30,000 South African artists.

The Southern African Music Rights Organisati­on, the Composers, Authors and Publishers Associatio­n, the South African Music Performanc­e Rights Associatio­n, the Marketing Associatio­n of SA, the Composers Associatio­n of SA, the Music Publishers’ Associatio­n of SA and the Independen­t Black Filmmakers Collective have joined forces as the Copyright Alliance. They are representi­ng their members’ concerns and shared commercial synergies in direct response to the worrying Copyright Amendment Bill advanced by the government.

A major concern of the alliance is that the amended bill was drafted without industry consultati­on or public participat­ion with those it will most affect: the artists. It also does not take into account the valuable findings of the 2011 Copyright Review Commission report. And there has been no impact assessment on the bill.

Music has historical­ly heralded a voice for social and political change; it is now time to do so for artists. Carol Dweck, in her work on psychology, speaks of “the power of yet” versus the “tyranny of now”.

It might appear protective of the artistic space to create distance from the intimidati­ng intricacie­s of legalese, but this is now a necessary move.

We must venture over the bounds of formal music knowledge and the informal and universall­y recognised passionate dreams of every musician to apply our blind faith with open eyes for our rights as creatives. Art does not stop for politics, but politics should stop for art if it aims to represent it.

ON YOUTUBE THE WORK OF ‘FIRST WORLD’ ARTISTS IS DEEMED WORTHIER THAN THAT OF OTHER ARTISTS IF MUSIC IS PROTECTED, ITS CREATORS BECOME PART OF A CULTURAL ECONOMY, AND SA’S ART WILL FLOURISH

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