Official Opening and Keynote Address
Andre Le Roux
Ms. Lulama Xingwana, DAC: Minister
Moshito’s status as the leading music industry conference and exhibition was confirmed on its opening day (September 2nd).
The Honourable Minister of Arts and Culture, Ms Lulu Xingwana, opened the event with a keynote speech at Museum Africa in Newtown, Johannesburg, that pointed to the government's belief in the ability of the music industry to deliver economic and social development, contribute to nation building and help nurture South Africa's national identity.
In her keynote address, Minister Xingwana said that the Department of Arts and Culture was charged with the unique responsibility of enhancing social economic development, promoting social cohesion and nation-building and nurturing our sense of national identity through the development, preservation and promotion of South African Arts Heritage and Culture.
With regard to rights and policy, among others, she mentioned the following main principles:
"Moshito is very significant in this with its central focus to promote and understand the business of music," Minister Xingwana added.
- Culture is as vital to community life as social and economic concerns.
- Freedom of expression and artistic creation are key valves in any society.
- Like any other human rights, culture is the right of all South Africans as enshrined in the constitution.
- Development of national culture is a key issue that all players must work on, both the public and private sector alike.
She went further to say: “Moshito is, one of the organisations that can build social cohesion in this country and is also designed to enhance development of the music sector in collaboration with African states.”
The Minister closed her keynote address by wishing Moshito Conference a fruitful event, from start to finish.
Moshito Chairman, Andre le Roux, pointed out how Moshito had been able to grow and develop in spite of a global economic recession that had seen other music industry conferences (like Germany's PopKomm) close its doors this year.
Le Roux pointed to the role of Moshito’s partners in making this year's event so diverse and stimulating, in particular the Department of Arts and Culture, the Gauteng Provincial Government, the National Arts Council of South Africa, the SABC, Business and Arts South Africa, the 2009 Joburg Arts Alive International Festival, Bassline, South African-Norwegian Music Cooperation (Mmino), Cultures France, the French Institute of South Africa and the French Embassy.
After the opening in the plenary, the conference moved onto the rest of the programme including two plenary sessions: The effect of the Recession on the Music Industry: How To Bebuild When The Dust Settles and Needletime Administration: Collection, Distribution and Regulation.
Day one of Moshito’s official programme also featured three breakway sessions that looked at Copyright and the preservation of music heritage (which echoed the Minister’s address); a look at music festivals (which proved very heated as panelists and delegates debated the involvement of government in the mix) and a discussion around whether or not new strategies need to be developed to deal with the ever-evolving methods of piracy.
The opening night ended with a storming live concert at the Bassline (featuring Blk Jks, Kwani Experience and Bakhithi Khumalo) that underscored this year's Moshito’s commitment to keeping music in the spotlight.
Effect of recession on music industry: How to rebuild when the dust settles?
This session looked at arguably the most important factor for any business over the past year and a major contributor to revenue shrinkages – and just how the music industry was affected.
David Shapiro, Sasfin: Find Manager;
David Stopps, IMMF: Director of Copyright;
Mirko Whitfield, SXSW: International Development
All the speakers discussed the effect of recession on the music industry from the global perspective and how the sectors of trade were experiencing shrinkage in the revenues. The speakers confessed to cutting back while others say they’ve yet to feel the crunch. The speakers suggested some possible strategies and looked at whether a recession was a good time to start a music company.
David Shapiro opened his presentation by saying that while politicians in Washington debate whether President Obama's stimulus programme is helping to pull the U.S. economy out of a recession, economists have already declared the winner in the stimulus race, and it's China. The Asian giant's massive $586 billion stimulus package - implemented with speed in November just as the world economy was crashing - is credited with helping to stabilize world markets and contribute to a budding recovery in Asia, Europe and the United States, where the stimulus package came too late to prevent the worst recession in modern times. China's adroit and timely move to bolster the global economy is fueling support for giving the world's third largest economy greater power in international venues.
Shapiro noted that the South African economy is heavily depending on the global economy and agreed that a recession was a looming - or may already be here, depending on who you ask. He also emphasised that even the U.S. economy was undeniably experiencing a significant downturn. With the music industry being one of the recession’s hardest hit victims, even typically flamboyant rappers have been forced to re-assess their spending habits.
With the financial crunch that accompanied hard economic times came doubt from the speakers about financial decisions - including doubts about whether or not to start a music company.
David Stopps have some background to the IMMF, which he sadi is a full status NGO (Non Governmental Organisation) and participated fully in all WIPO processes concerning copyright and Related Rights at the international level. He then went on to detail several key treaties which affected the rights and income of musicians.
The IMMF had warmly welcomed the introduction of audio-visual treaty which could have provided rights for audio visual performers. Unfortunately this treaty failed in 2000 due to a fundamental disagreement between the EU and the USA concerning the transfer of rights. This is why in many countries, artists enjoy a public performance right in sound recordings but as soon as that sound recording is used with visual images, such as is the case when an artist makes a video the artist gets no public performance rights at all. Some countries such as Germany have brought in national laws to deal with this but in most countries audio-visual performers in music and in television and film have very weak right and in some cases no rights.
However, Stopps also pointed to positivities in the current climate saying recession or no recession, music is still going to be the best product to grow over the system. Every club, pup owners must have licenses for playing music and blanket licenses, like with TV licenses, will work in the music industry depending on the reasonable charge.
Mirko Whitfield said that as per IMF data, world GDP marked an average growth of 4.57% between 2004 and 2008. This surge in global economic activity led to increased energy demand, leading to stupendous rise in oil prices. Crude oil prices climbed more than four times during the same period and touched a record high of $147.27 a barrel in mid-July 2008. Prices have plummeted by more than 75%, as the crisis, which started with the US subprime mortgage collapse in August 2007, aggravated further and entered into a turbulent phase.
Americans are now bracing for a potentially serious economic recession, one sparked by a housing and sub-prime mortgage lending meltdown.
On the digital side, investment in newer startups could cool, though smarter, bootstrapped companies may proliferate. And the live performance sector may also feel a hit, thanks to reduced levels of disposable income. The last major recession in 2001 lasted roughly eight months, though economists are projecting a more severe downturn ahead.
The small Internet and technology- based companies were another story. A recession is a great time to nurture and incubate a small company in the music industry.
Questions from the floor
Question: What is the stand of China in the world economy?
Answer: In responding Mr Whitfield said that China is number two in the world economy.
Question: Is recession not a system that comes from the market economy?
Answer: In answering, Mirko Whitfield pointed to the case of Beijing - as economic recession brings only pessimism to auto markets in Europe and the United States, China is bucking the global trend with strong growth in both cheap compact and luxury models. Vehicle sales were expected to reach 12 million in China this year, including about 10 million passenger cars, according to the government. Sales in the recession-hit United States are forecast to slump to just more than 10 million, which would allow China to surpass the United States as the world's biggest car market
Question: Does recession in the music industry depend on consumer demand?
Answer: Mr Shapiro. As musicians we need to be compensated on our music, but people tend to like eggs rather than buying music. He stressed the importance of undertaking market research about music consumers, talking to music them, and interacting with them – all of which will help those in the industry to have an insight into consumer demand. Work towards changing the mindset of your music consumers. Let’s go the music-live route.
Question: What does a fair performance rights encourage?
Answer: Responding Davis Stopps said that the important thing is to ensure the law is fair to performers and fair to broadcasters. A fair performance right encourages creativity and content that will continue to make American radio profitable.
Question: How do we get our group to stage music abroad?
Answer: In answering Mr Whitfield said that if there’s a support from the government, it will definitely happen. British Music Abroad promotes the British music industry at major international festivals and markets and raises the profile of individual artists, both in the UK and abroad, all by virtue of contributing towards basic expenses - it's brilliantly straightforward! Mr Whitfield further explained that 18 British acts were ble to attend South by South West (SxSW) in Texas from 18-22 March this year, thanks to support from the PRS Foundation. The British Music Abroad scheme helps some of the UK’s top emerging acts make an impact overseas and is funded by UK Trade & Investment, British Underground on behalf of Arts Council England and the PRS Foundation. In two years over 100 acts have been supported, with over £200,000, to allow them to attend international showcase events.
In closing, the speakers suggested some possible strategies as to why a recession was a good time to start a music company and “How to rebuild when the dust settles”. These included:
1) A recession forces founders to be frugal. Starting your music company without a lot of money was suggested as encouraging excellent discipline in music entrepreneurs and every early-stage company. While it may feel painful to track every dime, the lessons that frugality taught are invaluable. Having limited capital leads to creative thinking, healthy deliberation about expenditures, and the need for founders to pay very close attention to cash flow, budgets and balance sheets.
2) Recessions force music entrepreneurs to take another close look at their musical ideas. Incubating a music business was based on a flawed idea won’t work. A great start-up team or a lot of money could lend the appearance of success, but in the long run, a music built on a bad idea would end up standing on shaky legs. During a severe economic downturn, music entrepreneurs would be sure to look long and hard at their business ideas before jumping in. A recession would force questions like:
These types of Questions would force music business owners to refine their thinking- and would leave them with more solid ideas and plans.
- Will there be a market for this product if customers were cutting back?
- Do I have the capital to get that off the ground without raising VC money?
- Will the product or service benefit users in both good and bad economic times?
3) Recessions lead to committed start-up teams. A common perception about recessions is that jobs are put in jeopardy. Still, it’s not the time to count on employing people already in comfortable jobs who will be hanging onto their positions and not keen to leave for a start-up. However, the flip side of that is that anyone who comes to work for a start-up would be incredibly committed. A founder will have employees who really believe in his or her vision and products, and/or who have are willing to live with the added risk and Spartan conditions. Those were the types of people music entrepreneurs need for their teams, the speakers emphasised.
4) Start-ups get a head start. Let’s say you had a great idea and you knew that you were going to start a music company, but you’re wondering about the timing. What should you do? is the question Shapiro posed to the audience. Without wasting time he answered it himself by saying: Start now. That would give you a lead over the competition, and would be well worth any extra struggle. When the economy came out of recession, your music business would be that much further along, and that much closer to being ready to raise capital (which would once again be available, with funding firms eager to invest after sitting on their cash during the down years).
Needle time administration: collection, distribution and regulation, Where are we at?
Facilitator: David Chilsett
Speakers: Siphiwe Ncwana - dti
Kadi Petje – Cipro
Kadi Petje – Cipro (Copyright)
- Collecting Societies in South Africa in the main are still not regulated.
- Needletime Collecting Societies are regulated by Copyright Act and Performers Protection Act. Unregulated collecting societies like SAMRO and SARRAL have “transformed” themselves to be regulated societies for the purposes of needletime.
- Future Needletime Collecting Societies are to be regulated in terms of the Policy on the Protection of Traditional Knowledge (TK) through the Intellectual Property (IP) System, and the IP Laws Amendment Act, 2009.
- There are problems in that performers themselves are not forming their own separate societies. Control per se will not be in their boards. This may arm users not to pay royalties.
- In general, unregulated collecting societies do not want to be regulated, but they want the dti just to amend laws in their favour. Government does not know what to do if these structures are unregulated.
- Musicians must organise themselves otherwise the collective management of copyright will fail. They must constitute a structure with elected members who must constitute a board and ensure the board is accountable to the collective members. Failure to do that will weaken musicians in all fronts. They must cut the “middleman” and deal directly with whosoever.
- In areas where musicians have one society with recording companies, they must demand equal representation on the board otherwise the formula will not empower musicians.
- Disorganisation in the industry is not helping and the updating of laws will only be good on paper if there is no normalcy in the industry.
- Musicians must be careful of the multiplicity of “middleman” who want to be their representatives in the form collecting societies. Issues of corporate governance and accountability will be a challenge otherwise. The Companies Act may assist on the formation of proper accountable structures.
- Regulating collecting societies in the era of needletime was a project. It is becoming clear that collective management of copyright in South Africa is “struggling”. There are just too “many hands” in the “kitty”.
- From Government’s side, the dti, DOC and DAC are meeting and discussing how the industry can be improved. Local content will be discussed. The need to declare folklore as a national heritage is also being discussed. Amendments of legislation in relation to e-commerce will be discussed. Agencies of these departments that have a bearing on collecting societies will be discussed in perspective, e.g. how can CIPRO play a meaningful role in regulating collecting societies, and how can the SABC best c-ooperate with legitimate collecting societies.
- A stakeholder’s meeting will follow on from the Government meeting, looking at the way forward can be mapped on the functioning of collecting societies in the area of needletime. Unregulated collecting societies should brace themselves for “regulation”. The Intellectual Property Laws Amendment Act, 2009 will effect these changes. It is hoped by then the “needletime” regime will have improved and that should provide some best practice.
- Collecting societies should contribute to the welfare of their members. Preferably, the money collected must remain within the borders of the country. Independent labels/studios may form their own societies but they need to work closely with musicians.
- Contemporary music that have a component of folklore must be regulated in terms of the Intellectual Property Laws Amendment Act. In this regard, musicians and local communities should co-operate.
- Benefit-sharing agreements on commercialisation must be entered into. Collecting societies should start to export music to South African trading partners. Reciprocal agreements with foreign collecting societies should be entered into.
- As time goes on, a one-stop collecting society should be considered.
- Collecting societies are business entities and they must account to “shareholders” Government will provide an enabling environment but the industry needs to have corporate governance.
Dti deals with policy and regulation and Cipro is the implementers and administration of policy. Petje covered the following:
Regulations of collecting societies declared Cipro as an accrediting authority since June 2006. Cipro has the power to supervise Collecting societies for governance purposes. To date CIPRO has accredited three Collecting Societies:
- Accredited authorities
- Collecting societies
- Royalties to date
- Distribution plan
- Distribution plan ruling
1. SARRAL – represents performers and small percentage of recording companies
2. SAMRO – represents performers
3. SAMPRA – represents recording companies
* SAMPRA has collected R13 886 548.57 for distribution excluding admin cost. Cipro appointed Auditors and has to approve distribution plan. The distribution plan submitted by SAMPRA was rejected by Cipro, and based on the following reasons:
Cipro’s ruling can only be contested in the court of law or through compliance by SAMPRA.
- Wanted all the money collected
- 50/50 share between recording company and performers
- 20% admin cost
QUESTIONS AND ANSWERS
Question - Oupa Lebogo – CWUSA
To dti on the Perfomers Act – Collecting Society must be 50/50, meaning 50 musicians.
Cipro has assigned the rights to the three Collection societies and my question is - What rights vest in artists? Performers have the right to demand 50% and other issue of reparations from the Collecting Societies (20% admin cost as reparations to deal with issue of social security) Performers must get optimal gain. Authors had recognition over the years and now its time for performers.
Answer – Cipro wants a minimum number of 50 for administration purpose to develop skills. Legislation can be amended where necessary to make it effective as it was done in 2006. Cipro was approached by a group of performers to address issues pertaining to the music industry but as collective. They come from SAMRO, SARRAL as well as Independent and CIPRO is assisting them to form a section 21 company or a Cooperative.
Currently we had two meetings and issues identified are:
ICASA and the Legal Aid Board must be involved in the process. Cipro has involved DAC and collectively it want to see performers represented on boards of Collective Societies.
- Intellectual Property Act
- Local content policy
Question: There seems to be confusion – SARRAL and SAMRO who really must collect for artists?
Answer: SAMPRA CEO - Based on the copyright act sect .9 of the act
Given the presentation from dti government is aware of the challenges of the artists - What are the timelines for intervention? What is the interest of government in development of artists in general?
Answer: Dti is to finalise the consultation process and it is difficult to give timelines. Parliamentary processes are outside dti’s control but hopeful next year. DAC and Capri has kick-started the process of a collective voice.
Comment: Simon, NAC
Government must be protective and biased in favor of the marginalized. We need one legitimate collecting society.
Question: Mandla Maseko – Airco
In whose account is the money? Does it include interest and who is benefitting? Explain to us the timeframe for the legal battle?
Answer: The account is with SAMPRA, and interest will be shared between recording companies and performers. Timeframe is non-issue, as we want it right for the first time.
Comment: Oupa Lebogo - CWUSA
- Books in music.
- Connect to education for the youth.
- Indigenous knowledge to the youth
Government needs our support and we need to look and develop timeframes.
Answer: Forum as an Umbrella representative will assist in driving the issues forward.
The delay is good, as it will allow performers to be organized.
Comment: Fits Qcukane
We strongly believe that the artists deserve more than the 50%. Today we have been told not to be rough. Collecting Society revenue
We need to take all these matters to the copyright tribunal for resolve.
- Commercial broadcasters do not want to pay.
It is being recognised that there are players (performers) other than composers who are entitled to payment when recorded works are played. There seems to be a great openness around this.
It is without doubt that Needletime is a most contentious issue requiring urgent attention by several stakeholders in the country. The depth of this problem is extreme and the issues affecting it are no doubt intricate, requiring a considerable and lengthy investment of time, effort, knowledge, skill and patience on the part of the role players. The latter are tasked with designing and instituting the systems that will eventually lead to a satisfactory and fair deal for performers on sound recordings, the party that has not benefited at all from the pie of music royalties.
From the discussion, it appears that the performers, who form that part of the sector with arguably the biggest interest in Needletime, have been the slowest in bringing their share of the process to the table.
HOW DOES THE MUSIC FESTIVAL - INCLUDING GOVERNMENT - PLAN TO CREATE VARIETY IN THEIR SELECTION OF PERFORMERS FOR THEIR EVENTS TO AVOID STUNTING AUDIENCE DEVELOPMENT?
Peter Tladi – Chairperson SAMPA
Kevin Stuart - SXSW
I am representing SAMPA, an organization of all music promoters in this country. This organization was formed 30 years ago and the reason why we started this organization is because we saw a need to have such an organization.
I am talking briefly about the organization now: how do we apply our self to this question? To record an album is something else, but we don’t get enough marketing as a promoter. However it is our responsibility to go and sell a live product which is difficult when you have many artists on a bill with some prefering to watch Ringo and others preferring to wach Malaika, and perhaps then saying that the other artists on the bill are not good enough.
It is important to create good relationships with certain people in order to put on a good festival. If you are my close friend and I know your daughter is a singer it will be unfair for me not to put your daughter in my show.
Let me tell you something, there is a lady in the industry called Velile Sithole. She came to each and every one of us and we knew this girl was a backing vocalist for Stimela and Ringo. Everybody started to listen to those CDs and started promoting the aritst and she sold a lot of copies even though she doesn’t even have 2 years in the industry as a solo artist.
If you going to sit at home and expect people to come to you and do all the work for you, think again.
If the government comes on board it should be creating a bigger profile for itself, not the organization.
We think think that the government has a role to play in promoting audiences - we just need someone to approach the government.
Artist can’t sell music from a live performance as they get 15 minutes slot and people are paying R100 to see five artists while someone will pay R30 to see someone who is new to the industry. Aso when you put artists up against a national artist it is hard for them to perform at their best.
We must also combine established and new artists to in order to create more audience.
Now all these issues that the government should come in and build infrastructure – although you must also be careful because there is technical business.
What I know about the government is it won’t talk to us. They are only talking to me because I am in a position in the government if you are an organization and you want to present your case then you are talking the same language and then there is a problem.
Now we can talk and talk as we talk now all this kind of thing but if these resolutions are not being captured and be presentated as a form of resolution coming from industry players.
An artist like Chime presents a problem: should I feature here and pay her R40 000 to sing the same songs she performs for free at government shows? Until she brings out a new album, it is undermining the audience to do that.
If the industry remains the same, it will be uncontrollable and let me tell you something if you organise boxing tournamen, the boxing board regulations ensure that you give the boxers their money 14 days before the tournament which encourages the boxers as they know their money is already in before they get in the ring. In our case, there is a guideline of how things should be done.
QUESTION: What are that SAMPA and the government doing to promote artist at this moment?
ANSWER: At the moment the government is not involved - because they must meet them halfway and it is difficult to go and look for funding to government.
COMMENT: Gwen Ansell:
I think the one place where the government has a role to play is in presenting new artists as we all know that people only choose what they like unless they have an opportunity to get to know differently.
Where government could play a huge role is by expanding its reach – not just plaing Miriam Makeba and Simphiwe Dana but perhaps the few of hundred of south African artist we have in this country.
The government in Australia 20 years ago created a huge radio network that played stuff that as not on the commercial stations.
I am also against the information because it prevents entrepreneur who are most creative guys who runs the companies are you usually not the 18 and 19 year who understand where the country will be in 10 or 15 years time.
However one place that I still believe regulations has been very successful is in Nigeria where if you are booking 50 cent and you are going to pay him a million dollar you cant pay the local artist less than 100 000 so that is important because that really destroys artist because everybody knows 50 cents cost a 100 000 or 150 000 dollars with the local artist if someone say I cant $5000 someone else will come and take $2000.
Nigerian artist are now one of the wealthiest but not only in Africa but in a wide area because opportunities are opened to them.
A lot of the time no matter how big or small the show is you will find that people are coming to see the local artist it is just that 50 cents creates the and all the light and the moving heads which the local artist will not have access to and the good sound system so if in any regulation in something like that it has made a very big difference in the music industry.
The methods of piracy are evolving- should the music industry adopt new strategies.
Braam Schoeman: Antiparacy,
Mkhuseli Vimba: DTI/Cipro,
Pierre Rautenbach: Antiparacy
After years of suing thousands of people for allegedly stealing music via the Internet, the recording industry was set to drop its legal assault as it searched for more effective ways to combat online music piracy. The decision represented an abrupt shift of strategy for the industry which has opened legal proceedings against about 35,000 people since 2006 to date. Critics said the legal offensive ultimately did little to stem the tide of illegally downloaded music. And it created a public-relations disaster for the industry, whose lawsuits targeted, among others, several single mothers, a dead person and a 13-year-old girl.
Instead, Braam Schoeman revealed that the Recording Industry if South Africa (RISA), planned to try an approach that relied on the co-operation of Internet-service providers. The trade group said it had hashed out preliminary agreements with major ISPs under which it would send an email to the provider when it found a provider's customers making music available online for others to download for free.
Schoeman went further to say depending on the agreement, the ISP would either forward the note to customers, or alert customers that they appeared to be uploading music illegally, and ask them to stop. If the customers continued the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.
RISA said it had agreements in principle with some ISPs, but declined to say which ones. But ISPs, which were increasingly cutting content deals of their own with entertainment companies, may have more incentive to work with the music labels now than in previous years. The new approach dispenses with one of the most contentious parts of the lawsuit strategy, which involved filing lawsuits requiring ISPs to disclose the identities of file sharers. Under the new strategy, RISA would forward its emails to the ISPs without demanding to know the customers' identity.
Though the industry group was reserving the right to sue people who were particularly heavy file sharers, or who ignore repeated warnings, it expected its lawsuits to decline to a trickl.
It isn't clear that the new strategy would work or how effective the collaboration with the ISPs will be. "There isn't any silver-bullet anti-piracy solution," said Braam Shoeman
Mr. Pierre Rautenbach said he liked the idea of a solution that worked more with consumers. In the years since the Recording industry began its mass legal action, "It has become abundantly clear that the carrot is far more important than the stick." Indeed, many in the music industry felt the lawsuits had outlived their usefulness.
“I'd give them credit for stopping what they've already been doing because it's been so destructive," he added. He said that the Recording industries planned to continue with outstanding lawsuits. He gave a scenario by saying in America New York State Attorney General Andrew Cuomo had begun brokering an agreement between the recording industry and the ISPs that would address both sides' piracy concerns.
Clarity-seeking Question: To what extend did you find that strategy helpful.
Answer: It’s not helpful, but we wanted to end the litigation. In America the Recording Industry Association of America (RIAA) worked to cut deals with individual ISPs, and started working on a broader plan under which major ISPs would agree to work to prevent illegal file-sharing.
The RIAA believed the new strategy would reach more people, which itself was a deterrent. "Part of the issue with infringement is for people to be aware that their actions are not anonymous," said Rautenbach.
Meanwhile, music sales continued to fall. In 2006, the industry sold 656 million albums. In 2007, the number fell to 500 million CDs and digital albums, plus 844 million paid individual song downloads -- hardly enough to make up the decline in album sales.
He said that while he thought the litigation had been effective in some regards, new methods were now available to the industry. "Over the course of five years, the marketplace has changed," he said. Litigation, he said, was successful in raising the public's awareness that file-sharing was illegal, but now he wanted to try a strategy he thought could prove more successful. He explained that piracy would have been even worse without the lawsuits. Citing data from consulting firm NPD Group Inc. The industry, Rautenbach continued, that the percentage of Internet users who download music over the Internet had remained fairly constant, hovering around 19% over the past few years. However, the volume of music files shared over the Internet had grown steadily.
Mr Mkhuseli Vimba of DTI/Cipro said that the DTI had taken its copyright legislation to Parliament to test the waters and received its support. But Parliament went further and said that the regulations were not enough - it wanted the legislation to be extended to include unregulated collecting societies. To this end, in December 2007 the Cabinet approved a bill on traditional knowledge to mend the Copyright Act to introduce the collective management of copyright beyond antipiracy. The new bill allows for copyright (collecting societies) to be collectively managed.
Collective management, he said, brought up the issue of corporate governance. While this may seem as if the government suspected that there was corruption in the Music industry, it would be to advantage of the industry to embrace good corporate governance as that would imply that it was effective and accountable to its members, that was, the owners of the music.
A further reason for the new legislation, he said, was the need for South African collecting societies to export their music and carve out reciprocal agreements with similar societies in other countries. This would allow for royalties collected for South African music played in those countries to flow back into the country. He said that CIPRO (Companies and Intellectual Property Registration Office) was tasked with supervising and giving accreditation to collecting societies.
Questions from the floor
Question: What dhave DTI and CIPRO done to date in coming up with new strategies against piracy?
Answer: We have already discussed new strategies in Symposiums. The Department of Trade and Industry’s (the DTI) hosted a Symposium on Intellectual Property (IP) Rights at the University of Cape Town, in Cape Town, last year. This, followed intense scrutiny of judicial IP regulation and enforcement on a global scale. It brought together government agencies tasked with enacting IP legislation and ensuring compliance thereof, such as the South African Police Service (SAPS), National Prosecuting Authority (NPA), and the Customs Section of the South African Revenue Services (SARS), including the Department’s own Office of Company and Intellectual Property Enforcement (OCIPE). The event also seeks to attract from the academic community from different universities in South Africa and the Southern African region, as well as relevant private business and IP stakeholders. The Symposium aimed to better position the DTI and other law enforcement agencies in the crafting of a more effective, efficient, harmonised and integrated IP enforcement strategy.
Question: Does your department regard music piracy as economic crime?
Answer: Yes, counterfeiting and piracy have identified as economic crimes, with adverse effects on growth and development, employment creation, a safe market place and sustainable growth.
In conclusion, Vimba said that while music piracy was an important issue, the primary message from the government is that all form of piracy is identified as crime and we are doing something against it, but Software piracy is all but impossible to stop, although software companies are launching more and more lawsuits against major infractors. Originally, software companies tried to stop software piracy by copy-protecting their software. This strategy failed, however, because it was inconvenient for users and was not 100 percent foolproof. Most software now requires some sort of registration, which may discourage would-be pirates, but doesn't really stop software piracy.
COPYRIGHT AND PRESERVATION OF MUSIC HERITAGE - WHAT ARE THE METHODS?
Facilitator: Nkwenkwezi Languza – DAC
Speakers: David Stopps – IMMF: Director of Copyrights
Owen Dean – Spoor and Fischer
The preservation of music is incredible import. Copyright in recording differs from country to country. In Mexico for example is 100 years after the death of the composer which is the longest while in United States is 50, other countries is less and afterwards it comes to the public domain.
A recording released to the public domain gives no royalties to the composer. Generally, the cultural heritage of many countries is protected by copyrights. The challenge is to get the music cultural heritage protected so that if it is used commercially it can generate income back into the country.
Prof. Christine Lucia
The two important things about Music and Heritage are that they are differing on the base of the Past (Heritage) and the Present (Music). What makes music heritage different to political heritage is that music exists in the past, performed, composed and recorded in the past but as soon as we get on stage and perform it becomes present.
Preserving is not only to do about what happened a long time ago, and covering of so-called traditional music of whatever culture. It is about supporting the living heritage of today’s musicians. A good example in the choral sphere which is the biggest sector of the music industry. Half of the population at least has been in a choir (20 million). They often perform in competitions like the Old Mutual Choir competition. The music is usually from the past and some from the living composers. Most of the lyrics by choirs have been learnt and internalized through the choir conductor.
Half of the choirs have learnt it but they have never seen the music score only through rehearsals. Although the recordings exists mostly is learned as oral tradition. The competition organizers send a book of song to the Regions which begs the question of how the info mationgets disseminated? It is photocopied illegally. How does it affect the living composers? There are no national archives and it creates a huge challenge for us as researchers.
My proposal today is please let’s establish a National Archive for choral music. Let’s honour our composers by publishing them. Let’s disseminate their music through some legal system where composers can get royalties.
Owen Dean – Spoor and Fischer Attorneys
When talking about copyright in music it is important to learn what you are talking about. Typically you have:
Each of the different components carries different rights and that’s what distinguishes between them. The are various Collecting Societies for different rights. We have a well-developed Collecting system of copyrights in South Africa. South African works are protected internationally through the existing networks.
- Melody – musical work
- Lyrics (words to a song)- (SAMRO)
- Performers and sound recordings (SARRAL)
The challenge is the implementation primarily to keep track on songs played overseas. The typical challenge in protecting copyright from the rest of the world is the cost involved. One of the ways to reduce cost is to simplify the registration and procedures to be.
Example cases like “Imbube by Solomon Linda (which was used in ‘the Lion King’) which resulted in litigation against the World Disney company. This successful case saw the Walt Disney company agreeing to pay royalties to Solomon Linda’s heirs. In this case it was proven that the song was not a traditional Zulu song but was written by Solomon. The song became popular at that time which gave rise to the notion that it was traditional as people created songs similar to it (adaptations).
The protection of traditional music as well as the protection of ordinary music is necessary under copyright law, and a new law is coming soon. The new law is regarding protection of traditional knowledge into variety of South African Intellectual Property. It includes – Performers Protecting Act, Copyright Act and Designs Act.
Unfortunately the government is introducing some protection of folklore through this new Act under copyright were it does not belong. Two different entities can try to enforce copyright to the same song which my cause confusion or conflict of interest.
QUESTIONS AND ANSWERS
Simon – NAC
I really applauded you from what you doing for protecting in terms of copyright. In terms of language you use traditional versus modernity is problematic. What is traditional? Terminologically, let’s rather use the word indigenous.
Piece Japta – Sheer
My question is about performer’s rights within various festivals within the country. What do you do as a developing artists to get back your performer’s right? (Protection)
The first issue of traditional versus Indigenous is that the Bill has decided to call it traditional. The Bill’s definition of traditional knowledge is traditional intellectual knowledge that has traditional origins of community as determined by the registrar. The term traditional and indigenous tend to be used by the Bill interchangeable. It is not conducive for clarity.
In terms of performer’s protection by the Act, it gives performers certain rights. When you sign a contract with someone organizing a public event, he is getting your permission in terms of the Act. You have to indicate that if you want me to grant you performers right’s you have to pay. That must be included in your contract and to a large extent it has to do with your negotiation.
In the event the gig is recorded, recording rights needs to be enforced especially if it be will be exploited commercially. As a manager recording rights will be negotiated separately.
We need an example of community that has received royalties? Who is a community?
It’s a difficult one, and I cannot think of any community. A community is a group of people with a common interest be it socially, environmentally, politically.
Government should have a central pot to distribute.
Kgomotso Makgene - SAMRO
We do have an archive... When you buy a CD, you buy the license to play the music domestically. The CD cannot be exploited or commercialized. Exploit is a legal term meaning commercialise.
We need to preserve through the following:
TECHNOLOGY TRENDS - CREATING A DIGITAL PORTAL FOR THE SOUTH AFRICAN MUSIC INDUSTRY TOWARDS 2020
- Sound archives
- Writing (transcript)
- Oral history (how I made it)
SPEAKERS: Uno de Waal: Chief Researcher - Max Rover
FACILITATOR: Thembisa Marele: Presenter - SABC
Uno de Waal noted that music industry is a problematic term. It’s on interaction between musicians and music business towards addressing their target market and should not be divided along commercial and publicly funded lines. The objective is the same to successfully reach their markets in the most effective way possible. He went on to acknowledge the complexity of the music sector ecology where all areas are inextricably linked. He said that musicians have a responsibility to work together to promote a more healthy industry in the following key areas:
Question from the floor
- A focus on a new music and how it can be more competitive on a global scale and how we can have a more positive impact.
- The new music industry: digital production has created many by-products such as the rise of file-sharing and the reduction in physical sales. The rise in digital sales does not meet the gap created by smaller physical sales. Online methods of production and content have generated lots of content and more diverse ways of distribution. The result is a more challenging environment for both producers and distributors.
- User-led innovation and social network
- Rise of the micro-business and small traders make success within the industry difficult to quantify
- Need for artists and businesses to diversify their income
Question: What kind of music we want to achieve in 2020?
Answer: History of portals used to be the central place, to go to Yahoo, AOL, Google, News24 and Dmoz. We’re here to remind you that Overtone is now taking the phenomenon of digital music publishing to the next level with our a mobile MP3 player. Embed it anywhere, and make friends with Overtone, one of the fastest-growing South African music portals. We host the music, and quality SA music gets streamed all over the web. And whether you like it or not, you’re making a statement: I support local music, not because it’s local, but because it’s good. Then, in 2007, the music industry died. We’re not gonna waste our breath justifying it: there’s enough reading out there.
All these stuffs are personal.
- Net Vibes
- My Space
Future of Portals
API Development allows two networks to communicate together.
Music Portals in South Africa:
What should we be building?
- Entertainment Africa
- Rhythm music store
- Tune gum
- Something that leverages the ADI available, is social and allows people to interact.
SESSION: HOW DO THE PRESENT CHALLENGES FACING SABC IMPACT ON THE MUSIC INDUSTRY?
- Last fm
- My Space
- Band manage
Facilitator: David Chislett
SPEAKER: Sipho Sithole – SABC - Head of Strategy
Kgomotso Motswenyane – Tom Pictures
Last year we were excited when we presented what we thought was a revolutionary music policy. Let me answer the question on how this is going to impact the music industry. The key issue is here what type of music we play at SABC?
On the Top 100 play-list from the Media monitor (Week 35).
17 August – 23 August (Week 33)
- Only 13 Songs are South African
- No.1 is Played – 144 times (The International composer is smiling all the way to the bank)
- No.99 is Played – 34 times
SABC has 18 radio stations and being in South Africa we should not be apologetic about being African.
- Only 10 Songs are South African
- No.19 is Played – 77 times
- No.1 is Played – 180 times
A quote from a speech by Guinea President ”To take a part in the African revolution, is not enough to write a revolutionary song, you make search it with the people, if you search it with the people the song will come naturally.
Policy development was through a consultative process by a forum called SABC MUSIC Advisory group. The group consisted of Steve Hofmeyr, Sbongile Khumalo, Yvonne Chaka-Chaka and so on.
National Cultural under colonialism is a contested culture where most distraction comes forth in a systematic fashion. Very quickly culture is condemned with secrecy. Too African is not cool. SABC will lose a lot of money, but what they forgot is that according to Frank “ Colonialism tried to disarm National demand”. Let’s remember – Hunger with dignity is preferred above bread with slavery.
The policy was abandoned due to few individuals who think they are custodian of the cultural liberation struggle and are able to dictate who should do what and who should not do what. The policy at SABC is gathering dust at the moment. The individuals we do not know who they are working for, it is individuals or the industry? The other factor was the previous Board, fortunately or unfortunately the Board was fired.
The policy focuses on 13 points and we need a go-ahead on implementation:
Our hope is that the policy will be implemented with the change on the political landscape. We are advocating fair play. We are saying we will increase the quota system. We do not want to be dictated by ICASA by its minimum - we can do better than that. The quota system increases its target for three years:
- Airplay regulation
- Compilation of music
- Introduction of a quota system
- Artists for interview
- Promotion of artists on air
- Pay for play / payola
- Broader Participation
- Needle Time
- Approach to music societies
- Commissioning of music
- Establishment of overall Intellectual Framework
Commercial stations - 25 - 45
Public Broadcaster - 40 - 75
Kgomotso Motswenyane – Tom Pictures
Most of our productions are directly from SABC. Since YIZO YIZO, there are two form of music engagement as production houses. When I sign a contract with SABC it includes a composer element because I do not know yet whom I will work with at the time.
We engage with record companies although I wish I had the same privilege as musicians to be paid royalties for my creativity, so that my children can benefit from what I do. Unfortunately there is 100% commission period.
Production houses like to engage directly with recording companies.
QUESTIONS AND ANSWERS
I am not sure where your discussiion is getting to as the SABC has a say on what to broadcast and its your choice, there is no evil external force.
Another point is Needletime. SABC has paid zero towards it. You do not pay records companies for Needletime rights and we have been waiting for it since February 2007. I would like you to comment since it involves a significant amount of money.
I agree that the top 100 songs is something the SABC is party to and that’s what it is. Policy will assist a great deal to change the status quo.
Needletime issue the SABC is willing to go to the tribunal for adjudication because will never agree as to how much it must pay for Needletime. When that happens we will comply.
Andre Le Roux: Moshito - chairperson
I can understand that the Board can halt implementation of music policy but I can’t understand how one individual can halt implementation of policy. Graeme was not speaking on our behalf. According to us as Moshito, we want the policy to go ahead.
Post 1994, would you say the production industry has transformed or still dominantled by whites? What will be the ratio be if you say it has transformed?
Transformation is appalling in the Production industry, what is a black company? One black person in the Board of a company does it make it black?
SABC policy is clear on BEE especially Production. We are currently involved in capacity building on black producers and we spend R1-billion on local content.
Protection of Indigenous Knowledge Systems (IKS) for the development of cultural/musical diversity
Owen Dean: Spoor & Fischer, Director
Festus Khuyundi: University of Fort Hare, Archives
Prof. Festus Khuyundi started his presentation by giving an overview of how the world view the Indigenous knowledge. He said that there was growing interest at national and international community in the role that Indigenous knowledge plays in participatory approaches to development. Research was generating more and more data showing the relevance of Indigenous knowledge for sustainable development. This data, however, must be systematically shared with fellow researchers and with practitioners, and research efforts could be stepped up further. Active networking was needed if we were to make the most of that still largely untapped resource.
The international community is now slowly acknowledging that indigenous peoples had been discriminated against and deprived of their rights and freedoms for far too long a time.
These millions of indigenous peoples live in more than 70 countries worldwide. Indigenous peoples are the inheritors and practitioners of unique cultures and ways of relating to other people and to the environment. Indigenous peoples have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live. Despite their cultural differences, the various groups of indigenous peoples around the world share common problems related to the protection of their rights as distinct peoples. Indigenous peoples around the world have sought recognition of their identities, their ways of life and their right to traditional lands and resources; yet, throughout history their rights have been violated. Indigenous people are arguably among the most disadvantaged and vulnerable groups of people in the world today. The international community now recognizes that special measures are required to protect the rights of the world's indigenous peoples.
Characteristics of our Cultural Heritage and Indigenous Intellectual Property are:
Our common colonial past has created many obstacles. Indigenous traditional cultural expressions have been colonized in more or less the same manner as indigenous land. In the same way as with land rights, indigenous peoples have not been regarded as having any right to their cultures that could outweigh the interest of the western way of life. Our traditional cultural expressions, previously referred to as folklore, such as handicrafts, songs and dances, have until now been viewed as primitive, and not comparable to the masterpieces of western artists and composers. Indigenous traditional knowledge has been disregarded as having no scientific or cultural value, at least not in comparison to western scientific knowledge.
- A Living Tradition
- Holistic nature
- Communal ownership
- Responsibility and custodianship
- Collective Consent to use Indigenous Cultural and Intellectual
- Inter-generational transfer
Questions from the floor
Question: How can indigenous peoples protect their indigenous knowledge?
Answer: For indigenous peoples’ protection of their knowledge, not excluding ourselves, is an intrinsic part of respecting rights to land, culture and to an adequate livelihood. Without the land and the knowledge that comes mainly from use of the land, we as indigenous peoples cannot survive. Thus, for indigenous peoples, as well as for most of the countries in which we live, particularly developing countries, indigenous knowledge is also our most valuable and sustainable asset for development. For the world as a whole, furthermore, indigenous knowledge holds out the hope of greatly accelerating the struggle to improve human health and nutrition and to protect the environment. In my opinion, all humanity shares an interest in guaranteeing that indigenous peoples maintain, add to, and share our distinctive forms of scientific knowledge. For our part, indigenous peoples have made it clear that we will share what we know, if we are rec