Gender equality in South Africa’s creative sector through the regulation of collective management organisations

Since the end of the apartheid regime, discriminatory laws in South Africa have been replaced with several new laws specifically aimed at addressing gender discrimination. However, inequality persists in many forms and in various sectors of South Africa’s economy despite the achievements of agencies such as the Commission on Gender Equality and the adoption of the United Nations Sustainable Development Goals 2030.

This article examines how the regulatory framework for collective management of copyright in South Africa may be deployed to facilitate gender equality in the creative sector.

Collective management of copyright

Within the collective management framework, authors authorise organisations referred to as collective management organisations (CMOs) to monitor the use of their works, negotiate with and grant licences to prospective users of such works, collect payment for such licences (royalties) and distribute same among authors. The arrangement between CMOs and authors is possible because copyright law confers exclusive rights on authors of copyright works over their creative works (e.g. music, books, photographs, films etc.), subject to specified limitations and exceptions.. In order to exercise and exploit these exclusive rights, authors of copyright works may assign all or some of their exclusive rights to CMOs. In South Africa, CMOs include Southern African Music Rights Association (SAMRO), South African Music Performers Rights Association, Dramatic, Artistic and Literary Rights Organisation etc.

The role of CMOs is integral to the creative economy in South Africa and in other jurisdictions. They not only collect and distribute millions in royalties to copyright owners; they also provide copyright education and management; collective bargaining with large corporate users for better royalty payment conditions, lobbying government agencies to effect policy changes in the creative sector, organizing events to promote cultural creativity; etc.

Regulatory framework for collective management

On the basis of their handling finances on behalf of authors and copyright owners and generally representing copyright owners’ interests, collecting societies have usually been subject to regulation within the copyright law system and sometimes, from a competition law standpoint. This is the case, not just in South Africa but also in other jurisdictions such as Nigeria, Kenya, UK, the US, Australia, etc.

The Copyright Act 1978 as amended, Performers Protection Act 1967 as amended and the Collecting Societies Regulations 2006 (CS Regulations) constitute the principal regulatory framework for CMOs in South Africa. Within this regulatory framework, matters relating to the membership, royalty rate setting, and distribution etc. of CMOs are addressed. Also, because CMOs are established as companies, the provisions of the Companies Act 2008 relating to incorporation, corporate governance, winding-up, etc. constitute an ancillary regulatory framework for their activities.

The CS Regulations deals with matters relating to the establishment, composition, funding and functions of CMOs established to deal with “needletime rights”. Under the CS Regulations, the Registrar of Copyright is empowered to accredit needletime CMOs before they can validly operate as such. Aspiring CMOs are required to apply in writing to the registrar and must comply with the accreditation requirements.

The CS Regulations do not apply to non-needletime CMOs but the Companies Act 2008 require that all CMOs, where they permit having members, may not restrict membership in such a way that amounts to unfair discrimination on grounds of sex, ethnic or social origin, colour, among others.

Perpetuating gender inequalities

From various perspectives, the regulatory framework for collective management of copyright is largely gender blind as it does not take into consideration the effects of the regulatory framework and the resulting CMO activities on women and men in a differential way. This is because the current regulatory framework was formulated largely in response to concerns about accountability and transparency. This has resulted in a regulatory framework that is overly focused on the economic and legal functions of CMOs. The regulatory framework aim at ensuring that authors are able to join CMOs when they wish to, royalty rates are set based on appropriate and specified criteria, and royalties collected are managed and distributed in a transparent manner. However, the differential impact of the membership, royalty rate setting, and royalty distribution processes are not explicit factors under the regulatory framework.

Tied to and resulting from this are internal governance rules set by the collecting societies themselves that replicate the economic focus and gender neutrality of the regulatory framework. A good example is the Southern African Music Rights Organisation's (SAMRO) distribution rules for musical arrangements, which sparked debate in 2019.

Currently, the accreditation requirements under the CS Regulations do not require gender-disaggregated data from CMOs. Also, even though, the relevant provisions of the Companies Act, require that CMOs, where they permit having members, may not restrict or regulate membership in such a way that amounts to unfair discrimination on various grounds, there is no requirement for membership lists to contain gender disaggregated data.

The same malady affects the regulatory reforms proposed in the Copyright Amendment Bill recently returned to the Parliament for constitutional revisions. Even though the reforms seek to bring all categories of CMOs within the same regulatory umbrella, the accreditation and other requirements are in many ways, gender blind.

Promoting gender equality through the regulation of CMOs: recommendations

There are many aspects to gender equality as shown from the SDGs: equitable access and use of resources; equitable participation in relationships, the household, the community, and political arenas, and safety or freedom from violence. The gender inequalities noted in the creative sector in South Africa, the UK, the US and several other countries cut across several of these aspects. It is argued that given their economic and social relevance to the creative economy, CMOs can do more to address gender inequality and the regulatory framework can provide much needed impetus.

Firstly, the accreditation and accreditation renewal requirements established for CMOs should require CMOs to provide membership lists with gender disaggregated data as well as submit a plan (in the case of aspiring CMOs) and/or progress report (in the case of renewal) relating to the promotion of gender equality. This should also extend to gender balance in the boards of CMOs. In this regard, Kenya’s Copyright (Amendment) Act 2019 (section 34), which relates to guidelines on the gender representation of marginalised groups on the boards of CMOs, provides a good example.

Secondly, CMOs distribution plan, which includes plans for members’ welfare, is an ample opportunity to promote gender equality. In extending the CS regulations to apply to all CMOs, the current requirement to retain about 10% of royalties collected and apply same towards promotion of members’ welfare may be extended to apply to the cause of gender equality.

Tariff setting is another unutilised opportunity to further the cause of gender equality. In setting tariffs, needletime CMOs are required to make their complete repertoire available on non-discriminatory terms to prospective users. It is suggested that CMOs could offer more favourable terms to copyright users where they use the work of large numbers of women. This may encourage other copyright users to follow suit. Further, the regulatory framework may within the requirement for a gender equality plan, support the implementation of policy measures to encourage copyright users that use the work of large numbers of women.

Where correctly captured, demographic trends can assist in the appropriate allocation of resources and cost savings. Accordingly, requiring CMOs to provide gender disaggregated membership lists, distribution plans, gender preferential royalty rates, and gender disaggregated data in relevant reports can assist with planning and may likely result in policies that address and prioritise relevant inequalities.

The on-going parliamentary constitutional review of the Copyright Amendment Bill could be an appropriate time to deploy a regulatory framework for CMOs that can effectively improve gender equality in the creative sector.

The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.

(Main image by viinzography/Flickr, licensed under CC BY 2.0)

2 October 2020