After years of neglect, two bills will not fix artists’ practical problems

Legislation will entrench exploitation and gut our creative sector, but dialogue would ensure performers’ rights

In her open letter to arts & culture minister Nathi Mthethwa, actress Vatiswa Ndara painted a painful picture of the conditions under which she and other actors work. Through her story, we start to understand how industry legends come to the end of their lives with little to show for their accomplishments. Since Ndara’s letter was posted, veteran actors including Lillian Dube and Mara Louw have spoken about their battles against the exploitation of performers and the fight for fair wages. We have heard countless stories of performers being blacklisted for speaking out, and being downgraded to a “call actor” for demanding pay that matches their skill and professional experience. This cannot be allowed to continue. The government, which has been well appraised of this burning problem, has a key role to play.

The idea that the Copyright Amendment Bill and the Performers’ Protection Amendment Bill will be the solution to this exploitation of SA’s performers is wishful thinking. The bills, which are awaiting the president’s signature, will not fix the practical problems artists face. But this hasn’t stopped the minister of arts & culture from proclaiming that there is only one solution: that the president must sign the bills into law.

This “solution” is no solution at all. The minister is trying to deflect years of neglect of the creative sector by promoting the bills as a solution, when we know they will destroy investment opportunities in the audiovisual sector while providing no help to the exploited actors and performers. We have seen this opportunistic grandstanding from the minister in the past. In 2018, the ministry promised a full investigation into public claims by gospel artist Hlengiwe Mhlaba that she had been underpaid by one of the collecting societies. Ndara might be interested in what happened with that case.

The answer is nothing. There was no engagement, no investigation, no ministerial resolution of the problem. The outcome of Ndara’s plight is likely to be the same, because the performers’ bill is simply a handy prop for the minister in this news cycle.

The performers’ bill is intended to tackle issues around the payment of royalties to performers, the rights of contracting parties, and the moral and economic rights of performers. But it will not change the working conditions of performers or change the application of labour law protections to them, or help them organise into unions, as happens in many other countries. The bill will not address the power imbalances that result in performers having to accept less than a living wage. There are no provisions in the performers’ bill that will resolve Ndara’s complaints.

The bill makes it compulsory for all performers to receive royalties for their performances at a rate to be determined by the minister of trade & industry, not the minister of arts & culture. But the bill cannot guarantee that the producer of the audiovisual work will make the income that would lead to meaningful royalties, nor can it guarantee that every production will be a financial success. With the emphasis on royalties that are only paid long after the production is put on the market, there is no incentive to reward performers through models other than royalties that would remunerate performers equitably.

Beyond the issues surrounding the performers’ bill, what is lost in the conversation is the difference between the performers’ bill and the copyright bill. The former at least tries to give performers stronger rights, whereas the copyright bill seriously compromises the rights of creators.

The “fair use” provisions, as well as the numerous other copyright exceptions in the copyright bill, will allow the work of creators to be reproduced without their being compensated. The fair use clause creates an unlimited list of circumstances that may be claimed to deny creators their right to compensation for their intellectual property.

These new exceptions will explicitly permit a technology platform such as YouTube to stream performances of creative work in return for a minimal fee, and the performer’s royalties will be determined by that fee, not by what streaming the performance is worth. A recent study compared big tech platforms and how many streams actors would need to generate to earn a living wage. For YouTube, a performer would need more than 2million streams a month.

The current bills will cement this underpayment. The result will be more, not less, exploitation in the creative sector. Performers will gain very little from one bill, and creators will lose a lot from the other. For those who are both creators and performers, the signing of the bills will give them new, unenforceable rights with the one hand, while taking away from their intellectual property rights with the other. The result will be unpaid performers, exploited creators and a gutted creative sector.

OPPORTUNISTIC CAMPAIGN

Local unions for musicians and composers, such as the Trade Union for Musicians in SA, the Musicians Association of SA, and the Cultural and Creative Industries Federation of SA, have recognised that there is no real benefit in the compulsory royalty provisions. It is deeply disappointing that Ndara’s experiences are being used as a convenient springboard for an opportunistic campaign to persuade President Cyril Ramaphosa to sign deeply flawed legislation that will do nothing for Ndara and her colleagues.

Constructive dialogue must start with a few basic steps. The copyright bill must be returned to parliament, because there are serious reservations as to its constitutionality. Because the bills have been coupled, the performers’ bill will have to return to parliament as well.

The content and practical effects of each bill must be explained to industry stakeholders in plain language. An industry-wide consultation must take place to reach consensus, proper socioeconomic impact research must be conducted, the “fair use” provisions in the copyright bill must be abandoned to ensure the protection of creators’ rights, and practical mechanisms for determining equitable remuneration for performers — whether by royalties or otherwise — must be put in place.

Performers and creators are bound together. If we allow a divide-and-conquer strategy to succeed, everybody loses and we will find ourselves having the same conversation after the next open letter by another generation of frustrated, exploited and underpaid artists.

● Dlamini chairs the Coalition for Effective Copyright in SA.