For the first time in South Africa, there is the possibility of a statutory mechanism that secures the economic content of the rights that performers are routinely required to transfer to the producer. Through the Copyright Amendment Bill we have a realistic hope of negotiating equitable contracts.
Are you going hungry on the fruits of your labour?
The South African Guild of Actors is in the process of negotiating with various stakeholders on contractual matters, particularly those governing the further commercial exploitation of the work of performers in the broadcast media. And do you know what? We are being heard.
When performing in live-theatre, an actor will continue to receive their negotiated fee for as long as the show continues to draw audiences and the producers are convinced of it’s ongoing financial viability. But what happens when a performance is filmed or recorded for broadcast in perpetuity? The out-of-work actor looks on while their creative contribution and their ‘likeness’ continues to generate income for others, be they producers, broadcasters, distributors or sellers of popcorn. An actor who finds success in a particular role may even battle to find subsequent work, being indelibly associated with a character that lives on to haunt them. It is therefore vital that any actor, particularly when performing a principal role, secures a stake in the future exploitation of their work.
Internationally, actors have enjoyed the protection of the Rome Convention since 1961, but in South Africa there has been little attention given to residual rights. With the more recent advent of the internet and the development of sophisticated digital technologies, the scope for copying and digital manipulation of performances has increased vastly and the industry has become truly global. The World Intellectual Property Organisation’s ‘Beijing Treaty’ of 2012 addressed this reality, but South Africa’s signature is notably absent from that document. The truth is that our local IP legislation is outdated and, in the current environment, it is vital that actors secure the necessary rights through the particulars of the contracts they are willing to accept.
The standard SABC contract is currently being updated in consultation with SAGA, with the broadcaster agreeing to a transparent process for calculating actors’ compensation where programs are sold to other countries. Also on the table is a standardised schedule of minimum rates which, it is proposed, will be re-negotiated every three years. While negotiations on a new contract proceed, it has emerged that certain external producers commissioned by the broadcaster to create programs have been unilaterally amending provisions contained in the existing performer’s contract; a law unto themselves. However SAGA is now insisting that the SABC actively enforce the contractual terms throughout the commissioning chain. Well, the Independent Producers Organisation (IPO) is currently reviewing the Guild’s proposals and we await their response.
On another front, ETV’s free satellite offering has seen a slow uptake of decoders, with the ‘Openview’ platform not yet sustainable through advertising revenue. Nevertheless, the broadcaster is obliged to continue to create content, even though it is anxious to limit its financial exposure; wouldn’t you be? But when a recent production attempted to omit entirely the contractual provision for commercial exploitation and repeat broadcasts, SAGA dug in its heels. Together with the PMA we stood firm and the broadcaster listened. In the interests of stimulating local production, however, the Guild has agreed to consider a certain ‘window period’, yet to be defined, which closes when an agreed number of decoders has been sold. Once that threshold is reached, principal actors are automatically eligible for recurring payments each time the production is aired. Given the preponderance of ‘repeats’ on this particular channel, actors can look forward to a reasonably constant residual stream of income.
The South African Guild of Actors has been receiving valuable legal advice from our union partner UASA, the quality of which has undoubtedly contributed to the relative willingness of both broadcasters to commit to open channels of communication. And, of course, SAGA continues these discussions secure in the knowledge that we enjoy the support of our growing membership.