One of the core goals of South Africa’s Copyright Amendment Bill is to provide a right to fair remuneration for all authors and performers. This objective was motivated by the experiences of numerous famous South African creators who, despite their success in the creative industry, died as paupers. The problem that the Bill seeks to address is that the distributors of copyrighted work are dominated by multinational monopolies that are able to exact enormous concessions in their contracts with South African creators. Among the tools to address this problem in the Bill is a new right to a “fair royalty” for authors and performers, which applies to existing as well as future contracts. This provision is among those sent back to Parliament by the President for violating the Constitution. The President and others specifically criticize the retroactive effect of the royalty right with respect to existing contracts. This Article analyzes the Bill’s royalty rights and its potential constitutional infirmities, considers how other jurisdictions, especially the European Union has implemented fair remuneration rights, and proposes modest amendments that can help the Bill achieve its compelling purposes without running afoul of constitutional guarantees.
Forere, Malebakeng Agnes. Reforming the Right to Remuneration in the South African Copyright Amendment Bill. (2021) PIJIP/TLS Research Paper Series no. 67. https://digitalcommons.wcl.american.edu/research/67