This article looks at the twin impediments to the remuneration of musicians in South Africa, namely, technology and a dated legal framework, the latter being addressed in ways that are likely to do more harm than good. The legislature has embarked on a law-reform process, seeking to address artists’ plight through the Copyright Amendment Bill (CAB), but without any significant proposals to do so. Thus, while the CAB is being considered to safeguard income for musicians, it is unlikely to do so as it introduces too many unmitigated exceptions, thereby posing a threat to the economic rights of musicians and ignoring safe harbour provisions, which are the greatest threat, as they enable users to upload tonnes of music online to be streamed for free.
The problem confronting musicians in South Africa is ‘addressed’ by a practice of soliciting donations whenever a popular musician falls ill or dies. Friends of the ill or late artists (artistes) accordingly will take to social media, requesting donations so as to be able to pay hospital bills or help with funeral arrangements. Well-known musicians who have died in penury include musicians such as Brenda Fassie, the ‘Queen of African Pop’, whose music still features prominently at every wedding or party, and Mandoza, an award-winning artist dubbed as the ‘King of Kwaito’, whose song, ‘Nkalakatha’, continues to unite South Africans as a ‘rainbow nation’. Both died in dire financial circumstances.1 Another artist who deserves a mention is Solomon Linda, whose song ‘Mbube’ became the source of Disney's ‘The Lion Sleeps Tonight’. And despite this Disney connection, Linda died destitute, and his heirs continued to live in abject poverty despite the good fortunes of ‘Mbube’, until lawyers stepped in for them.2 Linda had assigned all his rights to the record label Gallo Music (Erlmann 2022) against a 10-shilling payout.
This phenomenon of precarity for famed singers dates back to apartheid times. Fast forward to 1992, the situation of poverty amongst musicians in South Africa caught the attention of the government, which mandated the Department of Trade and Industry's Advisory Standing Committee to look into it. The committee considered the reintroduction of the needletime royalty, which is a royalty that musicians get every time a sound recording in which they feature is played publicly, for example on radio stations (Matzukis 2014: 43). In 1999, as government continued to grapple with the unsettling economic circumstances of musicians, another popular musician, Mahlathini, died poor as well. He was specifically mentioned as a cause for concern in the terms of reference that were developed for the Copyright Review Commission (CRC), also known as the Farlam Commission named after the justice who headed it. The Collective Management Organisations (CMOs) also played a role in perpetuating poverty for musicians by not paying them on time or not paying them at all. Artists resorted to desperate actions – protests – against CMOs, and in recent years we saw one of the famous artists, Eugene Mthethwa, chaining himself in the offices of the Southern African Music Rights Organisation (SAMRO), seeking the payment of his royalties (Bambalele 2021).
Artists, together with screenplay performers, lobbied for law reform including the regulation of CMOs. Established in 2010, the CRC was tasked with investigating the problems facing musicians (Farlam 2011). The Farlam Commission released its report in 2011, calling for all music CMOs to be regulated the same way as needletime royalties are regulated and stating that there should be a fifty–fifty split of needletime royalties between performers and record labels and that there must be standardised contracts between performers and record companies which are fair to both sides (Farlam 2011). It also recommended an overall revision of the current copyright laws. As this was happening, musicians and copyright owners worldwide were waking up to illegal file-sharing enabled by technology and the internet (Stavroff 2011). In the United States, for example, musicians and record companies lobbied the US government to safeguard the industry; by 1996, two treaties were adopted at the World Intellectual Property Organisation (WIPO) (Dolata 2011: 10). These treaties are the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), together dubbed the ‘Internet Treaties’. These treaties augment the Berne Convention in the age of information technology by introducing new rights, effectively giving copyright owners exclusive rights to share their music online (communication to the public, rental, and distribution). As a member of WIPO and experiencing the drawbacks of technology and the internet, South Africa is preparing to ratify the Internet Treaties, which means that they have to revise both the Copyright Act of 1978 and the 1965 Performers’ Protection Act. Accordingly, the law reform process began in 2011 with many objectives in mind, but only one is relevant here, which was the strategy to respond to the plight of musicians.
The questions that I will address in this article are: (1) How has technology affected musicians’ income and rights? and (2) How is the CAB proposing to regulate online platforms that enable access to music? The question on how technology has impacted the music industry is not new, though scholarly work focussing on South Africa is in its infancy. However, what remains to be focussed on are the ways in which South Africans in general, whose consumption patterns indicated that there had been a market for legal physical copies, quickly embraced technology and the internet, and consumed music online. The closures of two retail music distributors – Musica and Look and Listen – followed. As often proclaimed and written about, technology has enabled the illegal copying of music (piracy), thereby diminishing revenue for the artist (Peitz and Waelbroek 2006) while variedly presenting opportunities for artists to publish and distribute their own music globally and thereby avoid having to deal with record labels, as Ute Röschenthaler and Wale Adedeji have discussed in this issue.
Such impacts are yet to be adequately considered with regard to South African artists. Röschenthaler, amongst others, has discussed how copyrights issues are being considered to limit creativity processes with regard to digitalisation. This also comes out in the work of Adedeji on the Nigerian music industry. Further, as Luis Aguiar and Joel Waldfogel (2018: 278) point out, even though streaming displaces physical sales of recorded music, the losses are outweighed by the positive gains of streaming itself, in so far as streaming has increased global music sales. However, this global music sale statistic cannot simply be applied to South Africa. The highlighted plight of famed musicians leads to a different argument, namely, that the lack of payments to these musicians is connected to issues of copyrights and piracy as well as to the reward system associated with streaming, which is based on a ‘winner-take-all’ or ‘superstar’ effect. To this end, the top ten songs in South Africa as recorded by the collecting societies are from global superstars – none of them are from South Africa – and this shows where the money goes. This leads me to argue that in light of the recent onset of digitalisation, the need for copyrights remains crucial in the South African context.
Figures indicate that technology and the internet have significantly reduced sales of physical copies while streaming has surged. To this end, the once-thriving mode of music distribution – physical copies – fell globally from $22.3 billion in sales in 1999 to just $4.6 billion in 2022, although the demand for vinyl records saw the revenue from physical copies rise from the low of $3.8 billion in 2020 to the current $4.6 billion. On the other hand, streaming continues to take prominence with a record of $17.7 billion in 2022 up from $0.1 billion in 2006 while downloads continue to shrink (IFPI 2023: 11). Now, the question remains: what is happening to South African musicians whose income was based on selling of physical copies? G. Jansen (2022) has noted that streaming has left the South African musicians in a precarious financial situation, despite music-streaming revenue going up exponentially as shown by the International Federation of the Phonographic Industry's (IFPI) 2023 report. The South African musician takes a pittance home because streaming operates on the basis of the winner-take-all approach, a phenomenon termed the ‘superstar effect’ (Elberse and Oberholzer-Gee 2006). In its annual report of 2022, the South African Music Performance Rights Association (SAMPRA) listed its top-played tracks, and very few were South African; thus, in the top ten were Beyonce, Glass Animals, Elton John and Dua Lipa, Swedish House Mafia and The Weekend, The Weekend, Adele, Lady Gaga, Ed Sheeran, Harry Styles, Lizzo, Coldplay, and BTS – and none of them are South African (SAMPRA 2023).
With regard to the extent to which the CAB addresses remuneration challenges highlighted by the Farlam Commission referred to above, I argue that there are potential threats introduced by the CAB. The first threat consists of wide-ranging unmitigated exceptions that will see musicians being worse off contrary to the recommendations made by the commission. As the bill is still being debated, I recommend that a copying levy should be introduced as a mitigating factor to the aforementioned wide-ranging exceptions. The second, and most serious, threat is the illegal sharing of content, which is sanctioned by the dated safe harbour provisions in the Electronic Communications and Transactions Act No. 25 of 2002. I recommend that, as the bill is still being debated, it would be prudent to borrow insights from jurisdictions such as the European Union (EU) on the issue of safe harbour. I find that both the exceptions and the absence of safe harbour provisions referred to above have divided South Africans and their friends abroad into two groups as follows: businesses in the copyright industries, CMOs and musicians are opposed to the unmitigated exceptions, while civil society organisations and corporations whose business model is based on the free circulation of content, such as Google, are in support of the exceptions and are the least bothered by the absence of safe harbour provisions.
This work is based on documentary research, as it considers data from IFPI and the Confédération Internationale des Sociétés d'Auteurs et Compositeurs (CISAC), the latter of which is also known by its English name, the International Confederation of Societies of Authors and Composers. It also considers the submissions made by stakeholders to Parliament on the provisions of the CAB. It is these submissions that I will consider in order to assesses how the bill has been received by the music industry and by users in South Africa – perspectives from the stakeholders on selected aspects of the bill.
Overview of the Copyright Amendment Bill: Space for unauthorised copying
This section focusses on the changes around copying that are sanctioned by law and how they affect musicians’ income.
Exceptions
Copyright law does not provide full protection against unauthorised use; thus, there is legislated leeway for third-party use without having to get authorisation from the owner. In the music industry, despite robust and any proposed robust legislation there remains space for free use in the proposed copyright regime for acts such as the sampling and remixing of music. From the provisions in the Berne Convention,3 South Africa made exceptions under Section 12 of the current Copyright Act – usually termed ‘General Fair Dealing’. There are two proposed provisions in the Copyright Amendment Bill – general fair use under the proposed new Section 12A and specific exceptions applicable to all works under the proposed new Section 12B. These new sections have been the most controversial in the bill.
Pursuant to the Berne Convention, South Africa provides a closed list of ‘special certain circumstances’ under which the authorisation of the copyright owner is not required. Nevertheless, there was no criteria stipulated in the Copyright Act in determining fairness in those ‘special certain cases’ for unauthorised copying. Thus, the plea of fair dealing involves a two-stage enquiry as follows: does the use fall in the list stipulated under Section 12 – ‘Special Certain Cases’? If so, is the dealing with that work fair? Accordingly, it is not enough for the defendant to merely plead that they have used the work for purposes of personal enjoyment or private study; rather, once the use is found to fall under those listed in Section 12, the enquiry proceeds to determine whether the dealing was fair. The fairness test was developed by the High Court of South Africa in only one case thus far where the fair dealing defence was pleaded: Moneyweb (Pty) Limited v Media 24 Limited and Another 2016 (4) SA 591.4 The Court developed a list of non-exhaustive factors to be taken into account when determining whether the dealing of a work is fair.
Although the fair dealing general exception has been pleaded in defence only once and has not proven to be inadequate to cater for exceptions within the new rights that come with the Internet Treaties, South Africa aims at departing from the general fair dealing exception in favour of the fair use exception typically known to have its roots in the United States, albeit modified arguably to the detriment of South Africans.5 The fair use exception is further augmented by the specific exception applicable to all works. The fair use exception has been a divisive provision in South Africa, as will be explained below. The notable aspect of the fair use exception is that it is wider than the fair dealing exception to the extent that it has open-ended ‘special certain cases’, thereby attracting doubt as to whether South Africa will be compliant with its international obligations under the Berne Convention (and also with the Internet Treaties post-ratification) (Karjiker 2021).
There are three new notable exceptions coming with the introduction of fair use and specific exceptions applicable to all works. First, while the fair dealing clause limits the purpose for quotation to teaching, the specific exception extends it to all purposes, and all works are subject to quotation. Second, there is a new provision that allows natural persons to make copies of any protected work for non-commercial purposes. Although personal copies cannot be seen to be for commercial purposes, they nonetheless affect an income stream for copyright owners. In many countries where private copying exceptions are introduced, they are accompanied with a private copying levy to compensate copyright owners. The private copying levy is missing in the CAB despite the bill's introduction of a wide range of copyright exceptions that can potentially deplete the economic rights of owners. The importance of the private copying levy cannot be overemphasised, especially in the age of technology where copying is seamless and rampant. Today, private copying revenue from the copying levy surpasses reproduction rights income, thereby indicating that artists need the introduction of a copying levy in jurisdictions such as South Africa, where this has not yet been provided (Forere 2021). Lastly, there is an introduction of free uses for purposes of making a comment, illustration, parody, satire, caricature, cartoon, tribute, homage or pastiche. It remains to be seen how the courts will balance moral rights that authors have in respect of their copyrighted works under Section 20 of Copyright Act and the pun or mockery that usually comes with parody, satire, and caricature (Marshall 2018).
As far as the music industry is concerned, the above exceptions will see quotations of musical works being made for any purpose beyond teaching, and this will create space for unauthorised music-sampling or remixing as long as one can prove that such quotation does not exceed the extent justified for the purpose and that it is compatible with fair practice. Currently, unauthorised music-sampling is not prevalent in South Africa, as it is not sanctioned by law. Any unauthorised sampling most invariably ends up in a legal dispute or a claim of royalties; it recently happened that the legend Caiphus Semenya claimed fifty per cent royalties against the late AKA estate for the latter's sampling of his song (Mkadane 2023). Music sampling is a common practice in the entertainment industry, which some artists and users even applaud for keeping alive songs that are otherwise no longer available while making some songs that were not hits to be more visible, assuming that the sampling song itself becomes a hit (Percifull 1992). Accordingly, it is not going to be hard for those sampling music to allege that the quotation of songs is compatible with fair practice as long as they do not cross the line, that is, as long as they do not quote a substantial amount of the song.
Aside from enabling unauthorised acts of copying through quotations – music sampling is a case in point – this exception will result in unmitigated and blanket authorisation for people to copy music. Meanwhile, individual consumers are the source of income by virtue of their buying of the music, and if they are allowed to copy, then they will not spend as much. This will significantly affect the already dwindling source of income for musicians.
Safe harbour
In South Africa, the current Copyright Act has no provision relating to the safe harbour, but the Electronic Communications and Transactions Act (ECTA) has it in its Sections 75 and 77, and it is similar to legislation in all other countries that still rely on safe harbour provisions that were adopted at the start of the internet. According to Sections 75 and 77 of ECTA, streaming platforms do not have liability in respect of content loaded by users, unless the platform has been served with a take-down notice, which it subsequently ignored. The costs of policing are therefore placed on the copyright owner. The most problematic aspect of ECTA is that Internet Service Providers (ISPs) can only have a responsibility to take down unauthorised copies if they appoint an officer to be in charge of receiving take-down notices. In order to avoid liability, it follows that ISPs do not and will not appoint anyone to receive take-down notices. The latter aspect lays bare a need for safe harbour provisions that will replace the ECTA safe harbour provisions. It is therefore highly problematic that safe harbour is omitted in the CAB – South Africa can no longer rely on the outdated safe harbour provisions of ECTA.
Aside from streaming platforms paying unreasonable amounts to owners and consequently to artists, the most serious threat is the illegal sharing of content, which is sanctioned by the safe harbour provisions – the greatest enablers of the value gap (Friedmann 2013). If YouTube, which is the largest platform that enables user uploads, can close this value gap, artists will benefit. This is because free streaming services with or without add support with an estimated 1.3 billion users, of which the majority are YouTube users (900 million), only paid $856 million in 2017, amounting to $1 per user per year, whereas Spotify, a subscription service, with a comparatively modest number of users, 272 million, paid about $5.6 billion, roughly more than $20 per user per year (IFPI 2018). The amounts paid by streaming platforms are too little in relation to the amount of music content that is streamed on these platforms (Arditi 2019), and this has triggered a debate on price regulation and/or moving from a pay-per-stream to a subscriber-centric model (Dimont 2018). Nevertheless, feeling the harsh effects of the abuse of safe harbour provisions, the EU took a bold decision to address outdated safe harbour provisions, and through the EU Directive 2019/790 (17 April 2019) amending the Digital Single Market Directive 96/9/EC, it can no longer be enough to simply hide behind safe harbour: platforms such as YouTube are expected to get licences for the music uploaded on their sites. In the United States, there has also been unhappiness with safe harbour laws from singers such as Taylor Swift, petitioning Congress to reform the country's outdated laws on safe harbour (Coelho and Mendes 2019).
Stakeholders’ submissions and data
In this section, I look at how different players in the industry have reacted to these new provisions, namely, the exceptions and safe harbour as discussed above. Before delving into the issue of contestations in the music industry, it is important to first describe the players adequately.
As in any given country, players in the music industry are artists/performers, copyright owners, CMOs and users, including public interest groups or entities, and this is the case in South Africa as well. These stakeholders are divided on the exceptions, while the issue of safe harbour is not evenly addressed. Artists, performers, copyright holders and CMOs want to protect their income from exceptions, while users of content including public interest entities want free access and therefore applaud the far-reaching exceptions. The legislature is therefore pulled in opposite directions by the stakeholders in respect of exceptions, as will be shown below, while only one side addresses the absence of safe harbour in the CAB. Although there are four stakeholders in the music industry, there are just two perspectives in respect of the ongoing law reform, and they are mostly divided on the exceptions introduced in the bill. On one hand, there are composers, songwriters, artists and publishers as represented by entities such as SAMRO, SAMPRA, the Composers, Authors and Publishers Association (CAPASSO), the Copyright Alliance of South Africa backed up by international players in the music industry such as CISAC and IFPI as well as renowned South African copyright scholars such as Owen Dean and Sadulla Karjiker, and the South African Institute of Intellectual Property as well as practitioners such as Andre Myburgh. This group is made up of players in the industry, and they are opposed to the wide exceptions introduced in the CAB, particularly the fair use exception, although there are other issues such as unhappiness with the absence of a private copying levy and standardised contracts and assignments.
CAPASSO, which represents composers, authors, and publishers, has come out united against the broad and unmitigated use of exceptions such as free copies for personal use. Specifically, CAPASSO has urged Parliament to take into account developments in other regions where personal copies are allowed. CAPASSO has made reference to the United Kingdom's decision in British Academy of Songwriters, Composers and Authors & Ors, R (On the Application of) v Secretary of State for Business, Innovation and Skills [2015] EWHC 1723 (Admin) (19 June 2015), where the Court found new private copying exception incompatible with the EU law to the extent that it was not accompanied by a fair and adequate compensation scheme for rights holders (CAPASSO Submission 2022: 2).
Although the purposes for personal use are legitimate – backup copy, format shifting and the storage of one's collection – it is common cause that users go beyond these stated purposes and engage in file sharing, hence most countries (United States, Botswana, Nigeria, EU member states and many others) impose a copying levy on any blank copies and any device which is capable of copying. Similarly, CAPASSO alludes to this concern in their submission (CAPASSO Submission 2022). Further, CAPASSO takes issue with safe harbour provisions; specifically, CAPASSO is discontent with the fact that when it comes to the User Generated Content platforms such as TikTok, YouTube and others, the law places the burden of policing the digital platforms on authors / copyright owners to trigger take-down notices instead of placing such obligation on the platform. This is a plausible and a fair request; however, it would be tedious for such ISPs to police their platforms, which are populated with tonnes of content every second; therefore, an alternative would be for these ISPs to get licences from CMOs.
Another notable stakeholder is the Copyright Coalition of South Africa (CCSA), which is by far the largest stakeholder; it comprises authors, performers, publishers, producers, and other owners. Like CAPASSO, which is part of the CCSA, the group is unhappy with expansive exceptions, as they clearly threaten their members’ livelihood. Amongst the thorny exceptions for the group is the open-ended fair use clauses: the group argues that it is not aligned with Article 9.2 of the Berne Convention to the extent that is fails to specify special cases (CCSA Submission 2022). To avoid repetition, as far as fair use is concerned, I mention here other stakeholders who are aligned against it. Thus, in the same way that CAPASSO and the CCSA are unhappy with fair use, SAMRO is equally concerned with exceptions, and cautions that exceptions must be limited to special certain cases in accordance with the Berne Convention, recommending the adoption of a copying levy (SAMRO Submission 2022). Equally, Owen Dean rejects open-ended fair use because it gives the courts a blank cheque. CISAC, for its part, objects to open-ended fair use and private copies without an accompanying levy, and requests that all exceptions be subject to the ‘three-step test’ (CISAC Submission 2022). As indicated above, while I do not necessarily agree with the CCSA's stance that special cases need to be limited, I do worry about the Constitutional Court in particular, as it has the potential to erode copyright altogether in the absence of criteria for including new uses beyond the ones stipulated in the CAB.
The perspective of this stakeholder group is clear: it wants the law to protect and safeguard its members’ work, which for them is a source of livelihood. It lobbied for change so its members can earn a decent living after years of destitution, with many having died in abject poverty. For these stakeholders, especially the artists, there is no alternative funding, as I have seen many of them living on food parcels during the COVID-19 lockdown. It is for this reason that this stakeholder is calling for the introduction of a copying levy, which is to be distributed to artists instead of being used for promotion of the arts and culture. It also wants the legislature to rethink the exceptions and dated ECTA's safe harbour provisions.
On the other end of the spectrum are stakeholders that applaud the fair use exception, and these are stakeholders that are generally supportive of the CAB. These stakeholders are often dependent on free uses of works like those done through entities that are part of the Open-Source Software Movement as well as through libraries and universities whose budgets get stretched because of their having to pay for books and subscribe to journals. Unsurprisingly, Google supports open-ended fair use (Google Submission 2022). Other interesting stakeholders are Artists and Creatives for Fair Royalties and Fair Copyright and ReCreate, which rally behind the bill unreservedly, wanting fair royalties as provided for in the bill while supporting exceptions, and one wonders whether these two stakeholders appreciate their contradictory submission. It is not surprising that ReCreate, funded by Google, supports fair use and the accompanying wide-ranging exceptions. The other important stakeholder is a group of academics that I was privileged to work with in preparing and presenting the first submission on the CAB to Parliament (Forere Submission 2022). I was the lead counsel on record and presented our views to the South African lawmakers. The group also put together a second submission, but at that time I was no longer a member of it following public concerns that some members of the group are funded by Google, which brought into question the group's independence. This group appealed – and continues to appeal – to the Bill of Rights in the Constitution in its quest to support and/or seek wider exceptions. Others in support include Wikimedia, Universities South Africa (USAf), and the University of Cape Town Intellectual Property Law Unit.
With the two contestations discussed above, it is up to the legislature to take a step back and reflect upon the events leading to this law reform process and assess the extent to which the proposed provisions will safeguard the economic interests of artists. Yet one wonders whether Parliament is able to comprehend the complexity of these issues. Thus, in a lead-up to the public hearings on the bill, two of my colleagues, Tobias Schoenwetter and Caroline Ncube from the University of Cape Town, and I provided one training workshop, and Owen Dean, Tobias Schoenwetter, Desmond Oriakhogba, Kadi Petje from the Companies and Intellectual Property Commission, an important regulator, and I provided another. We provided the training workshops with clear instructions not to discuss aspects related to the bill, yet it was these aspects that Parliament needed training on. For instance, it could have been beneficial to Parliament if we were allowed to show differences between the American fair use and the proposed hybrid South African fair use, so that Parliament could advise itself on the matter.
Digital technologies and the plight of artists in South Africa
While there are other factors, the problem facing musicians who end up being financially strapped at the end of their lives can be extricated from the advent of streaming as a part of the recent digital advancements and the resultant spread of unauthorised copying.
Addressing the question of the impact of streaming on record labels, IFPI shows that record labels highly regarded streaming and saw it as a game-changer after Napster became their worst nightmare with peer-to-peer file sharing. However, the same report by IFPI indicates that record labels are unhappy about certain streaming platforms, YouTube in particular, because of a ‘value gap’ (IFPI 2018: 26).
Another study focussing on the impact of streaming on record labels finds that streaming increases sales of physical copies because of the comeback of vinyl records (Lee et al. 2016). However, in the South African context, physical copies were not universally readily available after the closure of music stores. Looking back at the state of music distribution and the financial status of the artist in South Africa, music was distributed through a physical medium, with the latest mode being the CD, a process which generated significant revenue. CDs were predominantly sold in the music chain stores such as Look & Listen and Musica, both of which sold local and international music. The closure of these two stores helped speed along the decline of CD sales.
Sales were thriving with Musica, which had revenue of R10 billion. Musica was established in 1992 with much success; queues became particularly long at these chain stores whenever a new album from a popular artist was released. Musica's success was short-lived, because in 2006 sales went down due to a shift to online music purchases. While music piracy and peer-to-peer file sharing have always been a problem, this was not a significant problem for Musica's and Look & Listen because they largely had high-end customers who prided themselves on owning original copies. It is these customers that went, however, with the shift to online music sales, which gave them a choice to either purchase tracks that they were interested in within an album or purchase the entire album. Accordingly, Musica's sales went down by 10 per cent annually since 2006 until COVID-19 lockdowns saw Musica close its stores in 2021 (Shevel 2021). Just as physical copies declined to the point of stores having to close, online sales went up so as to give life to online stores. This state of affairs resonates with the music sales patterns reported above by IFPI wherein physical copies plummeted while streaming picked up. It can therefore be argued that the consumer that purchased physical copies now went with streaming platforms, as it was this particular consumer who had the funds to buy CDs who was now using the same funds to subscribe to streaming platforms.
Like Musica, Look & Listen was one of the oldest music stores in South Africa and Southern Africa. In South Africa, it had been in operation for almost fifty years, and it experienced upheaval with the introduction of online music stores and to a certain extent music piracy, as piracy had always existed but customers of its stores, like with Musica, always preferred their original CDs. The store was placed under business rescue in 2013, which resulted in the closure of some of its stores that were not profitable. The rest, which still brought profits, were left open. In their application to Companies and Intellectual Property Commission, Look & Listen did not mince their words about the impact that the internet and technology have had on their customers; thus, the group indicated that their customers had gone with the digital wave of music and video consumption. The relief from business rescue was temporary, as the company could not survive the technological wave of online music consumption, which resulted in the last store closing in 2014.
While downloads largely affected the traditional business model (i.e. the sale and rental of physical copies of music) and indeed music in general, the rise of streaming technologies affected artists as well, since large tracks of music started to circulate online, usually for free, which meant that the artists lost a great deal of income. As more music is streamed on platforms such as Spotify, there is consistent objection from artists who get paid peanuts in royalties – as low as an equivalent of $15 per hour for 300,000 streams – working full time (Alper 2022). This situation has caused the Union of Musicians worldwide to protest against Spotify for paying negligible royalties by using a non-transparent and complicated formula, thereby leaving artists destitute (Alper 2022). Artists’ sentiment against the impoverishing consequences of streaming are articulated by Lloyd Geyde's findings as follows:
The musician says that in the era of CDs, he may have sold 5 000 to 10 000 CDs when he released an album, which would equate to between R25 000 and R50 000 profit for him. “But 5 000 to 10 000 streams are not going to get you anywhere,” he says. Without government legislation, he can't see the streaming services changing how they operate (Geyde 2020).
The above resonates with an argument made by Jansen (2022), who, writing from a South African perspective, finds that in the year 2019 SAMRO distributed R150,000,000 to international CMOs and was only left with R108,000 to distribute to its local members.
Thus, artists are not able to make money from their music, and this impacts music production. Increasingly, some artists are asking for donations, as they are unable to put a roof on top of their heads and bread on the table because technology and the internet have led to their works being available for free, which runs contrary to the utilitarian basis of intellectual property protection. Consequently, some artists no longer see music as a direct source of income; instead, these artists use their music for promotional purposes. Thus, such artists use music to promote their other services or products, allowing them to diversify their income sources. As an example, the award-winning DJ Sbu uses his music to promote his energy drink – Mofaya – and his other services. Most musicians these days do stream their own music to avoid revenue losses to the labels, but the payouts remain negligible as streamers still prefer Western genres of music, and often resort to piracy to get local music (Concerts SA 2022).
Conclusion
In South Africa, the ongoing law reform, as part of process that is aimed at uplifting local performers/artists by safeguarding the economic interests of the latter in the age of technology, has turned into a nightmare. The legislature is caught between two opposing sides that are rigorous and intent on getting their way; the problem is compounded by the fact that intellectual property is a highly specialised and technical subject, which is not easily comprehensible beyond its basic ideas, and it is even more oblique in the music industry, as there is a lot of jargon to wade through. The exceptions have gotten out of hand and have divided the players in two groups: those opposed to the exceptions, that is, the industry, and those aligned with the exceptions, who are basically users – namely, libraries, consumers, and multinationals such as Google, whose business model thrives on free access to content. It is therefore important for the legislature to bear these two perspectives in mind and to know which players lie behind these two sides. As far as the notorious concept of fair use is concerned, it is common knowledge that copyright is interlinked with technology and that the latter spreads like wildfire. Consequently, it is going to be costly for the law to have to keep up with technology to legislate on new exceptions; however, such open-ended fair use needs to be carefully crafted so as to not delegate the legislative functions of Parliament to the courts, and also to avoid giving courts a blank cheque to do as they please.
There needs to be criteria guiding the courts on how to rule on including a new use that has not yet been considered; otherwise, one risks the court deciding in such a way that further impoverishes artists. Technology has made copying seamless, and thereby threatens the music industry. There is a dire need to mitigate rampant copying and free access to content, by means of a copying levy and funding if the music industry is to survive; copyright law alone cannot protect the author/owner, especially in the age of technology and the internet. The other threat that I have identified above is dated safe harbour rules, which impose policing obligations on the copyright owner while enabling ISPs to avoid liability by not appointing officers designated to receive take-down notices. The CAB has ignored the safe harbour provisions contained in ECTA, thereby encouraging illegal streaming platforms. My recommendation is that the EU-style safe harbour regulations be adopted if South African musicians are to benefit from their music instead of being impoverished by it.
Notes
For South African musicians and celebrities who died poor, see https://briefly.co.za/34138-15-famous-south-african-musicians-celebrities-died-poor.html (accessed 28 March 2023).
Linda's case against Disney was eventually taken up by Owen Dean, who represented Solomon's heirs. The parties reached a settlement that was kept confidential, but one can only imagine that it was a handsome settlement. See Al Jazeera (2006).
Article 9.2 of the Berne Convention, which South Africa is a party to, makes provision for member states to legislate exceptions from the exclusive right of reproduction ‘in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’. Further, the Berne Convention makes provision for free uses in respect of quotation and illustration for teaching. It is interesting to notice that the limitations to the exercise of exclusive rights stated in the Berne Convention have been replicated in both the WCT and the WPPT. Thus, both the Internet Treaties authorise member states to provide for exceptions and limitations in respect, of literary and artistic works and sound recordings, in their national legislation provided that such limitations are ‘in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author’ (WCT, Art. 10; WPPT, Art. 16).
The case can be found at https://www.saflii.org/za/cases/ZAGPJHC/2016/81.pdf (accessed 8 January 2024).
The American fair use non-exhaustive factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. On the other hand, the South African non-exhaustive factors as copied and modified from the American fair use are: (i) the nature of the work in question; (ii) the amount and substantiality of the part of the work affected by the act in relation to the whole of the work; (iii) the purpose and character of the use, including whether – (aa) such use serves a purpose different from that of the work affected; and (bb) it is of a commercial nature or for non-profit research, library oreducational purposes; and (iv) the substitution effect of the act upon the potential market for the work in question. South Africa is now introducing purpose of the work as well as the substitution effect, which shall see works being copied without authorisation, claiming that they are used for different purposes. As an example, one could be using a book for a film or using a song as background music in a film, as the purposes are different.
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Legislation and International Treaties
Copyright Act 98 of 1978
Copyright Act Regulations of 2002
Copyright Amendment Bill B13F of 2017
Electronic Communications and Transactions Act 25 of 2002
Berne Convention for the Protection of Literary and Artistic Works 1161 U.N.T.S. 3 (1886)
WIPO Copyright Treaty 2186 U.N.T.S. 121; 36 I.L.M. 65 (1997)
WIPO Performances and Phonograms Treaty 2186 U.N.T.S. 203; 36 I.L.M. 76 (1997)