A statement released by the South African Broadcasting Association (SABC) in early November declaring that its board had “reviewed and approved’ the SABC’s Intellectual Property (IP) policy and that it will “come into effect immediately’ has caused concern among members of industry umbrella body SASFED (South African Screen Federation), who say they were not consulted in the process.
South Africa’s independent production sector has been lobbying the SABC on the issue of IP since 1999. To date the SABC has retained 100% rights on all programming it has commissioned and funded, thus preventing producers from exploiting the IP of programmes they have conceived and produced.
The SABC statement reads: “Producers must be empowered to the point where they can share more of the financial risk of production and not to be overly dependent on the SABC for funding. SABC will continue to 100% commission, co-produce and license content. In order to manage costs effectively more focus will be given to co-production and licensing of content.’
Screen Africa requested further clarification regarding the IP policy and the SABC’s consultation process with the industry from SABC spokeperson Kaizer Kganyago. He responded: “In 2008, the SABC together with the Independent Producers
Organisation (IPO) and SASFED commissioned Mkhabela Huntley Adekeye Inc. Spoor and Fisher Attorneys and Justine Limpitlaw to research international best practice, legal and commercial imperatives and procurement models around the world in order to make recommendations regarding SABC’s Intellectual Property Framework and its procurement relationship.
“The SABC initially met with the TV Industry Emergency Coalition (TVIEC), which was later disbanded. We then continued discussions with the IPO, mainly around operational matters. Our new group chief executive officer (GCEO) Lulama Mokhobo made it her key deliverable to present the revised IP Policy and as such, on 10 July 2012, she met with the IPO and the Young Producers Forum to discuss the delay in the IP review and various other relationship matters. On 11 July 2012, the SABC’s TV and Legal department met with the IPO and SASFED to discuss broad guidelines for SABC’s IP policy review and its progress. It was explained that the SABC is governed and regulated by various policies and frameworks, and one such is its Delegation of Authority Framework, which requires the business to get approval from the SABC board through the SABC group executive committee on any substantial policy reviews before it is issued out for consultation.
“The statement from the GCEO confirms that our governance processes has been followed. Through its TV division the SABC is now drafting the stakeholder and regional presentation.’
As to the potential benefits for producers of the revised IP policy, Kganyago said: “The SABC’s revised policy seeks to introduce relaxations particularly around exploitation of commissioned work. We will continue to commission within the Copyright Act of 1978 but will work with the independent producing sector to create an environment where producers are able to utilise various business models and risk share to unlock economic value.’
According to SASFED co-chair Marc Schwinges, the Spoor & Fisher report was never interrogated or work-shopped with SASFED. “There were certainly some things in the report that we were not happy with at the time and we expected to negotiate with SABC. The Terms of Reference for the report were agreed to by SABC, SASFED and the IPO (at the time the IPO was not a SASFED member but subsequently joined the organisation).
“Another issue of concern is that the SABC board has announced the revised IP strategy before they consulted on it, yet alone published it. They say it is effective “immediately’ yet nobody knows or can tell us what is effective,’ said Schwinges.
Producer and SASFED member David Forbes believes SASFED should reject the policy. “It is wholly inadequate and vague and they never consulted us. They have also misrepresented their consultations with us.’
SASFED’s Harriet Meier adds: “I suspect that nothing will change as far as IP is concerned. The only relaxation in policy they have actually made is to concentrate more on co-productions and licensing, ie. less investment from their side and more risk on the outside, for which they will share the relevant equity.
“There is no indication how they will allow producers to exploit their work any further, nor is there any mention of how the writer, who is the creator of the work and initial IP holder, will benefit in the long term.’
screen africa magazine january 2013
