Blank Media Levy to be Revisited in South Africa?
In the early 1980s the record industry, suffering at the hands of record pirates and finding the existing copyright laws to be ineffectual in curbing home taping and generally the making of unauthorised copies of sound recordings, proposed to the government of the day that a blank media levy should be introduced in order to compensate the industry for the loss of revenue as a result of lost sales through the making of unauthorised copies of sound recordings. It was envisaged that the blank media levy should be coupled together with a compulsory automatic reproduction licence in respect of sound recordings and musical works. In other words, the use of a tape or other medium for making a copy of a sound recording would, if a levy had been placed on that item to be used for the copying, be sanctioned by way of a compulsory copyright licence deemed to have been granted by the sound recording and musical work copyright owners. There was nothing new about this proposal on an international level because European countries such as Germany had already introduced similar systems.
At the same time, the record industry felt that sound recordings should enjoy a public performance right, known at the time as “needletime” or “pay for play”. Prior to 1965, when the British Copyright Act of 1911 governed copyright law in South Africa, sound recordings as a species of musical work, enjoyed such a right. However, with the passing of the 1965 Copyright act, at the bidding of the South African Broadcasting Corporation, this right had been done away with in respect of sound recordings. The record companies had smarted over this deprivation for many years and now felt that it was time to reassert their perceived right for sound recordings to enjoy this form of protection.
Not surprisingly, the broadcasters reacted vehemently to the possibility of a performance right for sound recordings being introduced into the copyright law. They mounted an aggressive counter-campaign. Assisted by perhaps unfortunate timing on the part of the record companies in making pleas for the introduction of a blank media levy simultaneously with requesting a public performance right in respect of sound recordings, the broadcasters argued that the record companies where seeking to redeem their losses brought about by their inability to curtail record piracy by augmenting their revenues through requiring broadcasters to pay royalties in respect of a public performance right. The focus for the justification of a public performance right was completely lost and the two facilities were lumped together. The wave of unfavourable sentiment towards a performance right for sound recordings, which led to this request being refused, washed away the request for a media levy.
Some twenty years later the campaign for a public performance right for sound recordings was revived. In the meantime, the South African social and political landscape had changed dramatically. There was now a black government in power and black performing artists were a powerful lobby. They too wanted a public performance right and the record industry and the performers joined forces. Their efforts were successful and in 2002 both the Copyright Act and the Performers’ Protection Act were amended to introduce a public performance right. The Department of Arts and Culture played an important role in bringing about this result. Performers, in particular, were viewed sympathetically by this department and it brought its influence to bear in support of the performers’ claim. Copyright and performers’ protection, however, fall within the domain of the Department of Trade and Industry, and not Arts and Culture, and in bringing about the introduction of the public performance right, the Department of Arts and Culture in some respects usurped the role of the Department of Trade and Industry.
It was recently reported in the media that the Department of Arts and Culture is considering a proposal to impose a levy on blank CDs and cassette tapes in an attempt to control privacy and protect the rights of musicians. This is a significant development and this issue can now stand on its own, no longer being diluted by the question of a public performance right. It is noteworthy that the initiative is being taken by the Department of Arts and Culture primarily on behalf of its constituency, performers. The Department of Arts and Culture, perhaps buoyed by its success in upstaging the Department of Trade and Industry on the public performance issue, is once again pursuing a course of action which is more properly within the domain of the Department of Trade and Industry. This raises the question of whether the Department of Trade and Industry is being pushed aside by the Department of Arts and Culture in matters pertaining to copyright. On past performance, it is quite possible that the Department of Arts and Culture will succeed on this front as well and that a blank media levy will be introduced into South African copyright law. It is, however, ironical that this development is taking place at a time when blank media levies are becoming redundant or of limited relevance in Europe and elsewhere. It is perhaps a question of too little too late.
SPOOR & FISHER