Performers Protection Amendment Bill 2016: Summary

 

A Portfolio Committee of the Department of Trade and Industry has been established to oversee the updating of the Performers Protection Act No 11 of 1967. One of the major issues at stake is the payment of royalties to performers. Also under the microscope are measures to safeguard the rights of contracting parties (most actors work as independent contractors) together with the promotion of both moral rights and economic rights for performers.

Below is a summary of the major amendments proposed to the existing Act, particularly as they pertain to ACTORS.

  1. The Act is outdated in its description of the technological environment in which actors earn their livings. (In 1967 television had not yet been introduced in South Africa, let alone the Internet!) Therefore Clause 1 of the Bill seeks to more accurately define specific terms:
  2. “audiovisual fixation – means the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which either can be perceived, reproduced or communicated through a device;’’
  3. It is proposed that the term – broadcasting – is understood to include any and all technological means (including wire, wireless, satellite, encrypted signals) that are employed in distributing the performance, either by the broadcasting organisation itself or “with its consent”.
  4. It is clarified that – communication to the public of a performance – would include the transmission to the public via any medium, either the visuals, the audio, or both the audio and visual aspects of the performance.
  5. The definition of a – performer – is amended to include “actor, singer, musician, dancer or other person, who acts, sings, delivers, declaims, plays in, or otherwise performs literary, musical or artistic works”.
  6. There are also amendments to the terms “phonogram”; “reproduction”; and “Tribunal” which are legally technical and which make reference to other areas of legislation which exceed the limits of this summary.
  7. The Bill proposes significant changes to the Principal Act in terms of recognising the actor’s moral and economic rights in connection with their performance.
  8. The Bill recognises the actor’s moral rights in their performance to be separate from their economic rights. This means that, irrespective of receiving compensation for their work, the actor retains the right to be identified (credited) as the performer, and to object to any distortion, mutilation or modification of his or her performance that may adversely impact their reputation. These rights are protected after the actor’s death until such time as the performance passes into the Public Domain in terms of copyright legislation.
  9. The Bill envisages that the actor retains the exclusive right to authorise that their performance be broadcast, fixed (or recorded), reproduced (in any manner or form), made available (or distributed, whether by sale or otherwise). The actor also retains the right to authorise their performance to be made available through rental, or transmission through cable or wireless services that allow recordings of their work to be accessed and streamed.
  10. The Bill makes provision for an actor to transfer certain rights (excluding their moral rights), under certain conditions.
  11. Where an actor has consented to allowing a recording of their performance, the actor agrees to allow certain rights to be transferred to the owner of the recording. However, this is subject to a “written contractual agreement which shall give the performer the right to receive royalties for any use of the performance”. It is proposed that such right to royalties expires after 25 years, unless agreed otherwise by the contracting parties.
  12. The Bill makes provision for record producers to be protected in their commercial exploitation of phonographic recordings, while ensuring the composer and performer receive equitable royalties.
  13. The Bill proposes amendments to Clause 5 of the Performers Protection Act (No. 11 of 1967) which give effect to the economic rights of the performer.
  14. It allows for the actor to provide consent that their performance be recorded and to prohibit unauthorised recordings to be made (including pirated copies of legitimate recordings).
  15. It creates an obligation on the part of a person who intends to broadcast, record and/or distribute the performance to give notice of their intention to the performer, his or her representatives or a collecting society. It provides for resolution mechanisms – through the Copyright Tribunal (established by the Copyright Act) – should the performer, his or her representatives or collecting society reject the proposal or wish to negotiate terms and conditions.
  16. It is made clear that unless there is a specific agreement to the contrary, a performer’s consent to the broadcasting of their performance does not include consent to the rebroadcasting or copying of the performance for future distribution.
  17. The Bill is unequivocal on the payment of a royalty to actors where there is further commercial exploitation of the performance, whether it be through a re-broadcast, transmission through a diffusion service, sold or rented out (licensed). If there is no agreement to the contrary, the copyright owner is obliged to retrieve royalties or fair, equitable remuneration on behalf of the performer. The Bill stipulates that such monies are paid across to the performer in a manner that is agreed upon between the performer and the copyright holder, or between their respective collecting societies.
  18. If there is no agreement as described above, the matter can be referred to the Copyright Tribunal, or the parties may agree to refer the matter for arbitration.
  19. The Bill defines the special circumstances under which recordings of the performance can be used without the actor’s consent, provisions for which are contained in the Copyright Act:
  20. A performer’s consent would not be required should the recording be for private study or personal, private use.
  21. Only short excerpts of the performance may be used for the purposes of criticism and review, and the performer’s moral right is protected.
  22. The performer’s consent would not be required if the recording were to be used for scientific research, teaching or in legal proceedings.
  23. The Bill makes provision for sanctions where attempts are made to pirate the recordings of a performance through circumventing technological protection measures.

This brief summary is for the purposes of informing actors in particular as to the implications of the Performer’s Protection Amendment Bill 2016. Performers are encouraged to consult the document itself for more information and to engage in discussions around the Bill. Written submissions can be addressed directly to the Portfolio Committee, or forwarded to SAGA for inclusion in our written and oral presentations.

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The Performers Protection Amendment Bill 2016: What’s at Stake?

Through various channels, SAGA has been lobbying government and the Department of Trade and Industry (DTI) to effect changes to the existing Performers Protection Act, which dates back to 1967 and which fails to protect the rights of actors in today’s environment.

Economic and Moral rights

In a number of global jurisdictions an actor is granted both moral and economic rights in connection with the fruits of their efforts. In Hollywood, for example, many older actors are able to survive long after work offers have dried up as they receive residual income from the body of work they have built up during their productive years. Residual income is based on the notion that an actor has the exclusive right to their own image and as a result they are able to retain a stake in their work product as the “long tail” niche markets open up. As a film goes from the big screen to successively smaller screens in its journey from the cinema to broadcast television to DVD release in various territories, an increasing number of revenue streams come on line and the actor shares the benefits.

In South Africa, on the other hand, actors frequently die as paupers.

Global Business

Filmed entertainment is a global business, and with advances in technology, distribution platforms for entertainment product are proliferating at an alarming rate. In 2012, the World Intellectual Property Organisation (WIPO) adopted the Beijing Treaty on Audiovisual Performances which seeks to regulate matters of copyright in audiovisual material and, in particular, the rights of performers. (This position recognises that an actor has an intellectual input in their performance over and above that of the author of the work).

Performers Protection Act

When the DTI published the draft Copyright Bill for comment in 2016, SAGA was able to highlight the legal principle ‘lex specialis; for actors and other performers, any improvements to the Copyright Act would be over-ridden by the Performers Protection Act, meaning this piece of legislation would need to be urgently revised as well.

Accordingly, on 5th July 2016, Minister of Trade and Industry Rob Davies published a notice in the Government Gazette of his intention to introduce the Performers Protection Bill into Parliament.

“To amend the Performers Protection Act No 11 of 1967 so as to insert or substitute certain definitions; to address issues relating to the payment of royalties to performers; to safeguard the rights of contracting parties; to promote performers’ moral and economic rights for performances in audiovisual fixations; and to provide for matters connected therewith”.

A Portfolio Committee has subsequently been established and interested individuals and stakeholders have been invited to submit written comments on the Performers Protection Amendment Bill [B24-2016].

What does SAGA say?

SAGA has been actively engaged in the process of revising the legislation; our position is primarily informed by provisions of the Beijing Treaty that recognise the actor as the legal owner of their image (both their physical and vocal likeness), together with full moral and economic rights connected with the exploitation of that image.

An actor’s earning potential is directly proportional to the extent to which their image is exploited; once an actor is indelibly associated with a certain character, for example, the possibilities for pursuing other opportunities diminish. Control over the exploitation of their own image is essential if an actor is to build a sustainable career.

Furthermore, SAGA believes that the moral and economic right to their own image is inalienable; it is current practice to require an actor to relinquish all further rights ahead of their engagement on a production. SAGA believes the Act should offer protection where actors stand to be exploited due to their relatively weaker bargaining power in any negotiation.

SAGA would like to encourage discussion around the Bill and for actors to familiarise themselves with the relevant detail. A summary of the Bill is posted here, and this can be read in conjunction with the existing Performers Protection Act No 11 of 1967 and the Performers Protection Amendment Bill 2016.

Written submissions can be addressed directly to the Portfolio Committee, or forwarded to SAGA for inclusion in our written and oral presentations during February 2017.

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SAGA hosts international delegation: Plug in to global developments

The South African Guild of Actors in excited to be hosting a series of conferences in both Johannesburg and Cape Town next week, aimed at strengthening actors’ rights to decent working conditions and fair compensation. SAGA is of course fortunate to have the unreserved support of influential players around the world, as we strive towards establishing international best practices within our own industry.

Since 2012, the Guild has been a full member of the International Federation of Actors (FIA), with our Chair (Jack Devnarain) and Secretary (Carlynn de Waal-Smith) recently having returned from the 21st Congress in Sao Paulo, Brazil.

As many may know, FIA is a global federation of performers’ trade unions, guilds and professional associations, representing several hundred thousand performers with some 90 member organisations in more than 60 countries around the world. Through FIA, SAGA enjoys direct access to sister organisations such as Canada’s ACTRA, British Equity, SLC in Italy and Germany’s GDBA & BFFS. Since South Africa has entered into co-production treaties with each of these territories, it’s vital that the various actors’ representative bodies coordinate their efforts. FIA President Ferne Downey agrees:

“As producers consolidate their power – becoming large, vertically integrated corporations with ever-greater international reach – professional performers must build even stronger international solidarity and work towards global agreements to protect performers’ rights. We must fight to ensure every performer gets the benefit of a union contract, a safe work environment, and a fair share of the revenue that is generated from the exploitation of their work in all media”.

For the third year in a row, FIA will sponsor conferences in Johannesburg and Cape Town, where SAGA will host our global counterparts, sharing knowledge and building capacity. Previous conferences have been fruitful; for example, FIA made significant contributions to the drafting of SAGA’s submissions to the Department of Trade and Industry regarding revisions to the Copyright Act and the Performers Protection Act.

Incidentally, so impressed were the DTI with the Guild’s submission that they sent a delegation to last year’s SAGA/FIA conferences to learn more about our industry. Subsequently they invited SAGA to sit on a select Technical Working Group concerned with amending the outdated pieces of legislation which are currently in the process of being tabled in parliament. Actors can look forward to their share of revenue generated as their body of work is commercially exploited on the various platforms and markets that continue to find audiences.

SAGA is concerned at the disproportionate number of supporting cast that continues to be recruited in the US, England and Australia before an international project even lands on our shores, while at the same time local actors are relocating abroad with the hope of getting their foot in the door. This is happening at a time when global connectivity is offering innovative mechanisms for promoting talent more widely. Surely it’s time to brush-up our approach?

To this end, the latest iteration of the FIA conference includes special sessions with actors’ agents in both Johannesburg and Cape Town, an opportunity for open discussion around the standard practice of agents internationally. As South African agents align with universal industry practice, it is hoped their clients (that’s us actors) may see a more equitable slice of the global action.

Other items on the agenda include a look at “Disability in the Entertainment Industry”; an examination of “Discrimination Policy and Practice”, including LGBT issues and questions of sexual harassment. Contractual matters and concerns with outbound international touring theatre productions and inbound film projects will get an airing, as will the bread-and-butter business of television commercials and language dubbing.

The conferences run from the 24th to the 28th October: In Cape Town on Monday and Tuesday at the Pepper Club on the corner of Loop and Pepper streets; and in Johannesburg on Thursday and Friday at the Little Tuscany Boutique Hotel in Queens Road, Bryanston.

For more information, and to secure one of the limited places at the conference, visit www.saguildofactors.co.za or email admin@saguildofactors.co.za

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A Huge Talent Gone Too Soon: Jannes Eiselen

The South African Guild of Actors mourns the passing of one of our stalwart members, Jannes Eiselen, who left us on 23rd September just two days after his 36th birthday. A gifted actor and sought-after voice artist, Jannes had been wrestling with a brain tumour for several years. Whilst enduring surgeries and multiple treatments and therapies, Jannes continued to build a promising career, appearing on local and international screens while his voice commanded the local airwaves.

Jannes was born in New York, but moved to South Africa at a young age, graduating with a drama degree from the University of Pretoria in 2002. The versatile actor had a variety of roles in Backstage, Jozi Streets, Sewende Laan, Erfsondes, Binnelanders  and Hillside. Jannes recently made a memorable impact as the Scottish character Kerrin Edwards in Skeem Saam, joking that he couldn’t walk 10 yards through Polokwane without being stopped for a ‘selfie’! His international screen career included roles in Zero Hour and The Sinking of the Laconia, while he excelled in the role Dufresne the Quartermaster in the first season of the international pirate series Black Sails. Sadly, Jannes was forced to withdraw due to illness and had to be replaced for the second season.

Black Sails star, the British actor Toby Stephens, told his Twitter followers, “So sad to hear that my dear friend and colleague Jannes Eiselen, passed away. RIP. I’ll miss you Bru”. Fans responded: “That’s so sad, his evolution as Dufresne was bloody awesome. What a terrible loss”; “I really, really liked his Dufresne. This is very sad indeed”; “I can still not believe it… he was such an interesting part in BS …RIP!!!”

Friends have been sharing memories of Jannes on social media.  “I think others will nod and agree, your most celebrated and enduring memory will be your sincere love for others. You spent the time, even if it was a quick ‘Wazzzzzup!’”; “He placed such a high value on quality time with his friends, and I place the highest value on the time I got to share with him”.

A lover of Shakespeare, Jannes played Claudio in a staging of Much Ado about Nothing and Lennox in Macbeth. He was also a two-time finalist for the prestigious Brett Goldin Royal Shakespeare Bursary. Jannes leaves his wife of eight years, Claudia Moruzzi, to whom SAGA extends our sincere condolences.

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SAGA Social Media Statement: SABC

SAGA has received a number of requests from our members seeking clarity on our Guild’s position on recent SABC policy changes and our relationship with CCIFSA, which has publicly stated its support for SABC COO, Hlaudi Motsoeneng. The following statement is intended to satisfy those requests and to reassure our members and industry partners that SAGA remains faithful to its mandate.

  1.  It is of concern to us that recent media interviews by CCIFSA President Tony Kgoroge created a misleading perception that his organisation speaks on behalf of all professional actors. We wish to assure our members that SAGA does not recognise CCIFSA as a mouthpiece of the performance industry generally, nor has our Guild awarded a mandate to CCIFSA to speak specifically on behalf of our members.
  2.  SAGA views recent SABC news and editorial policy changes to be tantamount to censorship, which is a violation of the SABC’s public broadcaster mandate. We regard the enforcement of such draconian restrictions which resulted in the suspension of SABC journalists as an affront to the kind of transparent, impartial and fair news reporting expected of our national broadcaster in a constitutional democracy.
  3.  While SAGA welcomes the announcement that more local TV content will be commissioned, we do so with caution. We still have questions around:
  • Transparency of the producer selection and commissioning process.
  • The allocation of funds to such hand-picked producers.
  • What research (if any) was conducted into the efficacy of the new local content quota system, given that the COO by his own admission does not believe in ‘scientific research’?
  • Will SABC’s newly implemented censorship policies equally be applied to scripted TV content that challenges creative boundaries and stimulates political debate?
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The passing of a gentle giant: GREG MELVILL-SMITH

The South African Guild of Actors mourns the untimely loss of one of our own: Greg Melvill-Smith, a SAGA stalwart and true gentleman of the profession, left us in the late hours of 31 May 2016, succumbing to an illness borne with great dignity. At this difficult time our thoughts go out to Greg’s family as they face the loss of a loving husband and father.

Greg Melvill-Smith exhibited a unique entrepreneurial flair that saw him transplanting his interactive communication skills into the classroom and corporate boardroom alike. Indeed, SAGA was the fortunate beneficiary earlier this year of Greg’s facilitation expertise that resulted in the Guild’s five-year strategic plan, some of which is already yielding welcome fruit.

Greg trained as an actor at the Pretoria Technikon before joining Durban’s innovative Loft Theatre Company in 1985, where he spent three years honing his enviable talents. Moving to Johannesburg in 1988 to begin his freelance career, Greg went on to act in no fewer than 52 professional theatre productions and more than 10 major television series including 7de Laan and Isidingo on SABC, Wild at Heart for the Hallmark Channel and the internationally acclaimed Black Sails. Greg’s feature-film credits include The Sorcerer’s Apprentice, Mr. Bones, Drum, The Bang Bang Club and Night Drive.

The legacy of Greg Melvill-Smith extends beyond stage and screen appearances as he turned his hand to directing no fewer than 14 plays, including 3 operas, conceiving of a number of industrial theatre projects and conducting environmental theatre workshops with teachers, students and theatre professionals. For the Palaeontological Scientific Trust, Greg initiated, wrote and directed Walking Tall, an ongoing educational intervention and outreach project that has reached more than 1.2 million people, primarily learners and educators in South Africa, Namibia, Tanzania, Kenya, Belgium and Sweden.

For more than a decade Greg facilitated business coaching and training in the areas of emotional intelligence, mindset, team leadership, diversity and presentation skills. His clients include Nedbank, Schering Plough, Roche, Clicks, I-Net Bridge, the South African National Blood Services and SAA.

Greg’s legacy will continue to live on in our Guild, and our every success will reflect the memory of a man who gave more to the performance industry than he ever took for himself. In this spirit, Greg has requested that donations in lieu of flowers be made to the Theatre Benevolent Fund: http://tbf-sa.co.za/ or facebook “Theatre Benevolent Fund”.

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How Much? Claim Agency through Financial Savvy

By Adrian Galley

The notion of Financial Planning has many of us freelancers burying our heads in the sand. And for good reason; our income is erratic at best and our job security is nonexistent. As independent contractors we enjoy none of those safety-nets afforded the regular nine-to-fivers: pension fund; paid leave, including sick-leave; unemployment insurance; medical aid and access to workman’s compensation and, for those fortunate enough in these tough economic times, an annual bonus. No, we’re independent contractors, we’re free agents. Continue reading

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