VANSA Submission to the dti on Draft IP Policy

In response to the draft Policy on Intellectual Property gazetted by the Department of Trade and Industry in September, VANSA developed a submission on significant areas of concern regarding the implications (or lack thereof) of the policy for the visual arts and the position of artists.

1. Introduction

The Visual Arts Network of South Africa welcomes this opportunity to make a submission on the draft Policy on Intellectual Property issued by the Department of Trade and Industry (dti). We have limited out comments largely to those areas of the document that have direct relevance for the visual arts sector, and which we have some limited competence to address based on our work in this area. Please also find attached a position on the copyright administration in the visual arts released earlier in the year, together with research that we were recently involved in commissioning which ahs relevance for the IP policy.

2. About VANSA

VANSA operates as a development agency seeking to engage with and serve the interests of the visual arts sector in South Africa. The membership that we seek to serve includes visual artists, curators, academics, arts managers, gallerists and a variety of businesses and organisations operating in the contemporary visual arts sector. We do so through considered engagement in strategic projects that seek to address one or more of the following goals:
1. Wider access to opportunities and networks for individual and organisational development
2. Improved levels of professional and ethical practice among individuals, businesses and organisations working in the visual arts
3. New ideas, new practices and new audiences for contemporary art practice in South Africa
4. New market opportunities and buyers for South African contemporary art
5. An enabling policy and regulatory environment for visual arts professionals, businesses and organisations

Our engagement with the issue of copyright relates principally to goals 2 and 5. Informed by the findings of the 2010 Human Sciences Research Council report on the visual arts sector, VANSA initiated a process of dialogue with DALRO and public consultation on the specific issue of copyright in the visual arts in 2010. During the course of 2012, VANSA undertook wide-ranging consultations, developed resources and convened workshops and meetings across all nine provinces aimed at raising awareness among artists and other stakeholders in the visual arts on the application of copyright law to the visual arts in South Africa.

3. Summary of Key Issues

Our principle issues with the document may be summarized as follows:

3.1 The draft policy does not articulate a clear strategic intent and set of objectives

In its present form, the overall intent of the document document is difficult to decipher/engage with as the objectives outlined in the “Objectives” section of the document are so wide-ranging, with no less than eighteen stated objectives. Many of these stated objectives lack specific strategic intent and detract from the reader obtaining a clear impression of what the policy seeks to fundamentally achieve. We believe that a policy of this kind should capture no more than 4-6 principal and fundamental objectives, which would then provide a clear conceptual and strategic armature for the balance of the document.

3.2 the draft policy is largely silent on the question of position and rights of creative artists

In its current form the policy makes little or no reference to one of the fundamental purposes of intellectual property law: to protect and incentivise the creative outputs of various kinds of creative artist through granting them a limited monopoly related to the exploitation of their work in one form or another.

Other than very brief reference on pages 14 and 15 to the implications of copyright law for creative artists, the document makes no further reference to the interests of creative producers, and makes no clear recommendations that would seek to enhance or clarify the position of creative artists in this regard. The document further appears to conflate the policy issues raised by creative artists generally with those pertaining musicians, performers and composers alone.

The document contains no clear statement of strategic intent with regard to the strengthening of the position of creative producers, or consideration of the policy issues that would need to be addressed in doing so.

Specifically, in the visual arts arena, the document makes no reference to current international trends in the field with regard to the introduction of the “artist resale right”, a right that has been introduced in over 50 national contexts and which seeks to address the relatively disadvantaged position of visual artists as compared with creative practitioners in other art forms such as literature and music, with regard to their ability to monetise their creative rights in their work. Over the last two years, we have noted with concern the difficulties that have attached to the enforcement of copyright law in the visual arts field in South Africa, and have proposed that the introduction of some form of the resale right and the concomitant reform of copyright legislation as it applies to the visual arts, would go some way towards addressing these problems. We have attached a statement that we released earlier in the year to this end, which we hope would inform a dti position on the future on the future development of IP law and regulation in this specific area.

3.3 the document fails to engage seriously with the question of the extension of the term of copyright

The document further contains a casual and unsubstantiated dismissal of the proposition that South Africa should follow international practice in extending the term of copyright from 50 to 75 years. We see no reason why this the extension of the term of this right should not be applied in the South African context, and the document itself provides no argument not to promote the extension of the term of this right, other than the blank assertion that the present 50 year period is “enough to recoup the benefits before it gos into the public domain”. There is no argument or reference to any other body of knowledge that would substantiate such a proposition.

3.4 the document is unclear with regard to a policy position on collecting societies

The document contains a set of vague statements relating to the strengthening of the framework in which collecting societies operate, producing uncertainty and lack of clarity around the framework for collective rights management in South Africa. On the one hand the document acknowledges that “the best way to control ownership and exploit copyright is to be a member of collecting societies [sic]”, and is then followed by the blank assertion that “collecting societies are fragmented”. There is no differentiation between sectors (such as music) where there is a strong existing organisational infrastructure for addressing collective rights management, and areas such as the visual arts, where there is an emergent capacity for collective rights management, and what the differentiated needs of these sub-sectors might be with regard to strengthening rights protection for creative producers.

There is then the suggestion that rights management should be enforced through a single rights management organisation. The manner in which this is articulated leave much to be desired:
"The Farlam Commission on Copyright Review [sic] suggests that one collecting society must be administered by one powerful collecting society"

It is not really clear what this statement means, or how a single collecting society would effectively address the differentiated needs and circumstances of literary and dramatic authors, visual artists, musicians, craftspeople and so on.

The document then, in a contradictory manner, makes vague reference to the need to “avoid the Boards of such collecting societies being constituted by members one sector, usually the one that has the financial power.”.

While we support the idea that government should play a role in regulating the activities of collecting societies in the interests of promoting and protecting the position and the rights of creative producers, we do not believe that the present landscape can be re-engineered in the top-down manner that the document appears to be proposing, with the model of a single collecting society applied across all art forms seemingly being promoted.

4. Conclusion

In conclusion, we believe that the Department should return to the proverbial drawing board in developing a policy position that is both more legible and more comprehensive, and one which (among other priorities) much more clearly articulates a commitment to enhancing the position of creative producers.

We also note with concern that the policy appears to largely speak to an intra-governmental framework and conversation and makes little reference to a variety of pressing questions and stark realities raised both by the Copyright Review Commission report and other recent research.

For example, research that we have recently commissioned (also attached to this submission) shows very clearly that South Africa enjoys a massively negative balance of trade with the rest of the world in the import and export of rights. In 2010, the value of ‘imported’ foreign IP (across all forms of IP) was reported as being US$1,9 billion versus only US$59 million for ‘exported’ rights related to South African IP. In a related vein, the Copyright Review Commission reported that only 2% of SAMRO’s collections in 2010 came from foreign/international users, whereas 43% of its distributions went to international rights-holders.

The document appears to be almost entirely silent on these fundamental imbalances and areas of underperformance in our creative and intellectual rights economy, and on the kinds of support measure that might be put in place by the state to begin to address these. We believe that the further development of the draft policy should engage in a more robust and focused way with addressing these realities.

Links to downloads:

1. VANSA position on rights management for the visual arts

2. Commissioned Research on International Trade in Creative and Cultural Goods and Services


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