Joshua Leroni and Carla Collett from Webber Wentzel say that South Africa’s Copyright Amendment Bill and Performers Protection Amendment Bill can potentially harm the creative industry.
Leroni and Collett said that copyright has two broad functions: it ensures that artists are fairly compensated while guaranteeing businesses and investors that the works they commission can be protected and commercialised.
With the global economy embracing digitalisation, governments, such as South Africa, want to adapt existing legislation for the digital age.
South Africa’s Copyright Amendment Bill of 2017 and the Performers Protection Amendment Bill of 2016 reflect these aims.
Despite the efforts of the government to give creators more rights, Leroni and Collett said that the bill would inadvertently limit their rights by restricting them from commercially viable contracts and aligning with international norms.
The attorneys said that the legal risk of working with South African content producers would increase, resulting in businesses simply investing in other countries where they will have the best competitive advantage for copyright laws.
Global streamer Netflix has already raised concerns over both bills, such as the provision for royalty payments.
“A legal obligation to pay royalties will require producers to take on broader economic and legal burdens, which will limit investment and opportunities for producers, leading to lower overall remuneration for authors and performers,” said Netflix.
Netflix’s global manager for intellectual property and cultural policy, Renee Viljoen, said the royalty system was completely incompatible with its business model.
Viljoen added that the royalty system would result in production companies waiting to see if their movie or TV show did well before receiving remuneration, limiting their ability to create further content.
Leroni and Collett said that the new laws would lead to creators struggling to find partners ready to commercialise their work, resulting in South Africa either having creators without income or no creators at all.
Ultimately, they said that South Africa would lose investment and economic growth if the bills were passed.
Although the bills are speculated to be passed during 2023, Leroni and Collett said that the bills should be further amended to benefit the creative and digital industries.