Copyright: South Africa’s free-agent media-hell

COLUMNIST Modibe Modiba has been ordered to pay Daily Maverick R100 000 damages after he falsely accused the media outlet of ‘paying him, and other students, a weekly stipend to write articles’. Of course this wasn’t true, since Maverick editor, Branko Brkic, lead evidence that he hadn’t paid the writer a cent.

Modiba was also ordered to remove defamatory comments and apologise for accusations of racism, and a conspiracy to produce articles critical of Independent News and its owner, Iqbal Survé, the EFF, and others. Delve a bit deeper into the four unpaid ‘columns’ published by Maverick and anyone can see where the problem lies.

I am not going to ruminate on the merits, nor unpick the skinner and gossip involving Modiba’s submissions to Iqbal Survé ‘s grotesque news agency, suffice to add that both Brkic and Survé have tended to rely upon a grandfather clause in our country’s Copyright Act that essentially awards publishers and especially the daily-press, the right to publish unsolicited material for gratis, and to readily assume ownership of an individual’s copyright in perpetuity.

Yes, you read that right. If I submit the product of my labour to a newsroom editor, under the current Copyright regime which has prevailed for decades, the publisher walks away with my work and I have absolutely no comeback in terms of the act, which in any event, pretends that the High Court would assume itself to be a Copyright Tribunal — on the off-chance one ever succeeded in convening an inquiry into accusations of unfairness and unfair-dealing of material? Most certainly an overly solicitous situation, feeding nothing more than the legal profession and keeping those silks who eschew roast beef gnawing on lamb cutlets.

Since I am not up entirely up to speed with the progress of the Copyright Amendment Bill (CAB) which was sent back to Parliament by President Ramaphosa in 2020, I am not going to entertain you with anything resembling an educated opinion suffice to add that the Bill “seeks to provide a right to fair remuneration for all authors and performers”, with the objective of ending the situation in which “numerous famous South African creators who, despite their success in the creative industry, died as paupers.”

Thus the CAB aim is to correct the problem that the “distributors of copyrighted work are dominated by multinational monopolies that are able to exact enormous concessions in their contracts with South African creators.” Among the tools to address this problem in the Bill is a new right to a “fair royalty” for authors and performers, which applies to existing as well as future contracts.”

So far as I am aware, the grandfather clause resembles droit-de-seigneur or the medieval right to sleep with the bride by virtue of seniority, a carbuncle still evident in the Bill last time I looked. Reason being is that if you have ever sat in a newsroom, you will know that editors are practically drowning in unsolicited submissions, and the business of the press, is well, to report the news.

Vetting each and every press release for sign that it may have come from a correspondent, journalist or columnist and not a public relations company would seem to be outside of the scope of employment, or is it?

It troubles me that Brkic and Survé so readily resort to the defense of seniority, a weird colonial throwback, which may also be translated as the ‘right to do whatever one wishes, irrespective of who may be married to whom’. All that is required is for an editor to say to a starving candidate writer, you know, I’ve noticed your work has deteriorated alongside your bank account, please don’t call us, we’ll call you? I dare say articled clerks must find it difficult working for gratis too?

For most of the 80s and 90s I got paid for my writing, whether solicited or unsolicited. Normally all that was required was to negotiate some form of relationship with a news outlet. All this changed over the millennium, as copyright went the way of the Dodo, and like Napster, when it comes to the press, now seems all but dead and buried. You may view my unsuccessful attempts to regain control over my own writing and photography from apartheid company Media24 in terms of a defunct and voided contract, under the Copyright Section on this page here.

And my run-in with Mail & Guardian over the permissive creative commons license scheme here. In 2002 I was forced to sue the Cape Times via the Small Claims court for several articles solicited by then Arts editor Gael Reagan.

Needless to say, the press in this country have a history of bilking on payments and reneging on remittances to freelancers and temporary staff. In fact, for the record, I may as well cite an unhappy bad debt, which I wrote off, when Guy Berger, summarily cancelled a monthly environmental column at South Press, back during the late stages of apartheid, and a similar issue with a column at Cape Town’s Big Issue. The only media company which has ever received a clean bill of health for services rendered, so far as I am concerned, is the now defunct New Nation.

It should be noted that while publishers are seeking to gain a piece of the social media advertising pie, they don’t appear to have any plans to pass on the results to content creators. Whether or not the much-vaunted Copyright Amendment Bill will ever succeed in correcting this adverse situation, remains to be seen.

UPDATE The Copyright Amendment Bill has been sent to the NCOP for concurrence. This will enable debate in Provincial Parliaments.

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