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JOHANNESBERG — In 2011, as
music streaming was spread-
ing to more countries, a group of South
African musicians and performers
petitioned the government to reform
the country’s copyright laws to offer
more protection.
Led by famed Kwaito producer
Gabi Le Roux and performer Eugene
Mthethwa, the artists were concerned
that weak copyright protection and
rampant piracy were harming music
creators, who were already struggling
to make a living because of largely inef-
fective collecting societies.
A decade later, amid lobbying from
copyright skeptics, that push for re-
form may be backfiring. South Africa’s
creative community is battling to stop
an amended copyright law passed in
the country’s National Assembly in
December 2018. They say the bill —
the first significant update of South
Africa’s copyright laws since the late
1970s — would actually leave creators
worse off than before.
The bill is still sitting on the desk
of South African President Cyril
Ramaphosa, who needs to sign it for
it to become law. In recent months,
artists have staged rallies on the steps
of the Parliament and recorded a “We
Are the World”-style protest anthem
called “Vikela Mina” (Protect Me). In
the song’s video, a musician uses an
electric guitar to smash a concrete wall
representing the copyright bill.
At the heart of the debate is whetherSouth Africa should retain its enu-
merated exceptions to copyright for
uses like education and the broadcast-
ing of public speeches, or move to a
more flexible system that would be
more like U.S. fair use.
Developing countries like South
Africa have generally tended to see
copyright as an import, not an export.
At a parliamentary hearing on the bill,
Universal Music South Africa manag-
ing director Sipho Dlamini disputed
the “myth that international record
labels make money in South Africa and
then send all their money overseas,
instead of reinvesting it into the mar-
ket.” According to Dlamini, from 2014
to 2016, an average of 68% of revenue
generated by international record
labels remained in South Africa.
South Africa is one of many coun-
tries where creators and the media
business are locked in a struggle with
American technology companies and
their supporters over how copyright
law should apply online.
Technology companies want gov-
ernments to adopt policies similar
to the U.S. fair use doctrine, which is
more flexible than the “fair dealing”
laws in Commonwealth countries or
the list of exceptions in nations with
civil law systems. Their argument is
that fair use is essential for digital in-
novation, and thus economic growth.
Countries looking to modernize need
systems for machine learning, data
mining and large-scale indexing —and for that, they need
more exceptions to copy-
right than the current
laws afford.
But many believe South
Africa’s fair use plan will
create too much ambigu-
ity. South Africa’s exist-
ing law is modeled on
the fair dealing doctrine,
which is true of most
Commonwealth coun-
tries that based their legal
systems on that of Britain.
The amended law is an
expansive “hybrid” model
that borrows from various
countries’ fair use systems,
says Neil Turkewitz, a for-
mer head of international
affairs at the RIAA, who
lobbies on copyright issues but hasn’t
done any paid work on South Africa’s
law. “There is no global precedent for
this hybrid system,” says Turkewitz,
adding, “Everything about this intro-
duces greater uncertainty around the
environment for creatives. This creates
more risks and legal ambiguity.”
Supporters of the law disagree. Sean
Flynn, a law professor at American
University who is part of a coalition of
100 copyright academics around the
world, says the amended bill would en-
sure that “creators have the exceptionsthey need to make fair uses of existing
works to create new works.” (Flynn ac-
knowledges that his university has re-
ceived “unrestricted gifts” from many
corporations, including Google, but
says “those contributions are gifts and
not contracts.” He adds that Google’s
support never amounted to over 10%
of the university’s total funding.)
“The provisions of the Copyright
Amendment Bill are not about Big
Tech,” says Flynn. “They are aboutbolstering the power of South African
creatives in their dealings with the
monopoly labels and publishers.”
The government says the updated
bill is needed to improve regulation
of collecting societies, which were
failing to recover millions in royalties
from broadcasters and other users. But
lawyers say other parts of the bill could
damage South Africa’s music industry,
such as restricting copyright terms to
25 years, a “contract override provi-
sion” that could make some contract
terms unenforceable and a clause that
gives South Africa’s minister of trade
and industry powers to regulate con-
tract terms and royalty rates.
A Google representative says that
the company provided feedback to the
government on how the South African
law “may impact the way people ac-
cess content online,” adding that it
“support[s] updating copyright rules
for the digital age.”
Le Roux says the wording of the fair
use exception is “too vague,” and music
industry lawyers say it will create
ambiguity that could erode inves-
tor confidence in the South African
music business and harm efforts to
develop new local talent. Music lawyer
Stephen Hollis, who’s against the bill
in its current form, predicts that if the
bill passes the number of legal claims
“would be absolutely staggering.”
The government is betting
that the bill will help put
more money into creators’
pockets. South Africa has long
struggled with the issue of
collecting royalties for music
creators. In 2010, the South
African music industry col-
lected just 357 million rand
($45 million) in royalties. The
situation has not improved
much since then. In 2018, the
South African music rights organiza-
tion, SAMRO, reported 472 million
rand ($31 million) in music licenses
and royalties, up 1.4% from 2017.
The unfortunate irony is that if
South Africa’s new law is signed as is,
it could impede local music produc-
tion at a time when there is a surge of
interest in sub-Saharan music. “If they
fail their own community, they may get
cheaper access,” says Turkewitz, “but
it’s access to foreign materials.”South Africa’s Copyright Fight
Amid lobbying from American tech companies, artists are smashing
guitars in an effort to stop fair use exceptions from exploiting their works
BY DANIEL FRIEDMAN and ALEXEI BARRIONUEVO“ EVERYTHING ABOUT
THIS INTRODUCES
GREATER UNCERTAINTY
FOR CREATIVES.”
—NEIL TURKEWITZ, CONSULTANTRAMAPHOSA: PHILL MAGAKOE/AFP/GETTY IMAGES. SATELLITE IMAGE: ELVELE IMAGES/ALAMY STOCK PHOTO. MICROPHONE: SEAN GLADWELL/GETTY IMAGES.THE MARKET GLOBAL REPORT20 BILLBOARD • FEBRUARY 29, 2020 ILLUSTRATION BY ALICIA TATONE