PATRICK LEE-THORP

The editor of herri asked me to review the book, Lion’s Share: Remaking South African Copyright, by Veit Erlmann. When I first dipped into the text, I immediately knew it was not going to be an easy read. Now that I have read it, though, I can say it is a remarkable piece of work. It covers research done from 2010 to 2018, and published in 2022 in the USA by Duke University Press.

The in situ study is a combination of broadly four different though related parts: a legal overview of copyright history in South Africa; a close look at the legal claim – full of twists and turns – pertaining to the song Mbube; a description of attempts to reform copyright legislation; and the collection society landscape of South Africa (SA). All four parts woven together with anthropological theory.  

My perspective is that of a music publisher and music business professional with experience in southern Africa and Europe. I am not an academic, and I soon realized that it would be better for me to make some personal observations on the issues raised by Professor Erlmann, rather than attempt an academic review.

The Quality of the Research

Lion’s Share is unquestionably well researched and very well referenced. The references are one of the book’s many valuable elements.

The title made me expect that I would be reading Erlmann’s take on the well-aired story of Solomon Ntsele Linda and his song Mbube. However, the book is really about the recent state of play in the South African copyright ecosystem. The latter is a more dry and complex topic, though not without considerable substance.

Erlmann says that South African copyright law is “a mess.”

This statement should not surprise anyone observing the state of many other institutions and organizations in SA. It strikes me that perhaps copyright is not the most pressing of SA’s problems right now.

Coincidentally, the book arrived on my desk in Hamburg on the same day that I was being interviewed by an Australian journalist about the life and demise of a very talented, lesser known Cape Town township jazz musician named Robert Sithole, who died in virtual poverty not long ago. I imagine this situation is not unfamiliar to the family of Solomon Linda.

As a researcher and observer from Europe, Erlmann rightly does not take sides when commenting on the post-apartheid period. The original concept of copyright law is European, and it has spread into the statutes of many countries, not only South Africa. That SA would attempt to decolonize that legislation is not a surprise, though it is doomed to fail in my view when the politics are distilled out of the discussion, as they should be when making law.

In the first part of his book, Erlmann deals with the philosophical and theoretical framework of his task: viewing copyright through a modern anthropological lens. This section is hard to follow for someone not versed in the discipline.

A Battle of Biblical Proportions

My favourite section was part two, the David-and-Goliath challenge, in which the lawyers representing the Linda camp took on the billion-dollar Disney corporation. Erlmann begins by gently mauling author Rian Malan’s popular Rolling Stone magazine article on the subject, which Erlmann later admitted played a role in inspiring the legal tussle.  

The stage was set by the publicity. The script is about the exploitation of the intellectual property rights of a young African performer/composer whose song went on to earn huge sums of money for a cold capitalist entertainment conglomerate, the Walt Disney Company. The drama is worthy of a TV miniseries.  Without the threat of litigation, very little of the loot would have been shared by Linda and later his family after his death.

The central questions – what an original work is and what might be considered a traditional work – are raised early in the story. I was not aware of how Linda might have been influenced or inspired by his exposure to the apparently highly successful Orpheus McAdoo, an entertainer from a US spiritual singing group that toured southern Africa at the end of the 1930s. This possible influence suggests that at least part of Linda’s composition was not “original” after all. This and other nuggets of information uncovered by Erlmann’s research are to be found throughout the book.

A version of Mbube was recorded by the American pop vocal group The Tokens, cementing the popularity of the composition in the US. At that point, the Johannesburg record company Gallo SA got Linda to sign some paperwork to allow them to share in the publishing revenue of the song. The Tokens version was not a one-to-one copy of  Linda’s recording, nor of the version by an American ensemble who had also picked up Linda’s melodies before them. The catchy vocalisations of The Tokens and their arrangement (and lyric changes) sent it on its way to the pop charts.

I want to point out here that the success of Solomon Linda’s song had a lot to do with those who took on the exploitation of the various recordings thereof. In my view those parties deserve to share in the proceeds of any success. When Disney got hold of the work, it was not the same Mbube recorded in Johannesburg in 1939. Yes, the original author deserved (the lion’s share of the) composer credit and reward, but should the daughters of the late songwriter be earning money from the Disney version of the composition over half a century after Linda’s death? 

Should one buy into the assumptions of hereditary benefit from intangible assets?  Should the great-grandchildren of Bach or Beethoven, or perhaps more realistically the family of, say, George Gershwin, be receiving royalties from the wonderful musical inspiration of their ancestors at all?

Erlmann goes into this and other ultimately legal questions and in a detailed and logical way unpacks many of the nuances behind the legal case against Disney. I will not be the spoiler here, though this being South Africa you can put money on it that race politics will play a role.

Updating Local Laws

With the imagination of the public having been piqued by reporting of the case, the politicians woke up and moved to the task of updating the South African Copyright and Performers law. Erlmann describes some of the complications of this process.

His portrayal of the sessions of the parliamentary select committee tasked with reviewing and redrafting the proposed new statutes is also noteworthy. That it often came down to divisions along party lines is no surprise to me. I was even mildly amused by the dark humour of some of the hearings he described.

His review of the whole question of the copyright law as it evolved from the time of the Union of South Africa, through the apartheid era, and into post-apartheid times is hugely informative.  

How does one make laws that take into account traditional or community intellectual property (IP)? What new definitions need to be found and what changes must be made to the colonial definitions in the legislation existing at the time? How would a new legal framework be adjudicated by a legal system essentially Anglo-American in tradition?  Erlmann offers a great deal of background to these questions. As one might expect, not always in plain English.

Theft and Piracy

Having catalogued some of what many believed to be theft of Linda’s rightful dues, there is a chapter on the enforcement of the law. If the politicians could agree on the lofty notions of protecting IP through applicable legislation, can rulers be relied on to enforce these laws? Looking at the state of lawlessness in SA today, I am doubtful.

Copyright piracy has been criminalised by SA law for many years. The problem is that the authorities have always lacked the will to enforce those laws. Erlmann discusses attempts to enforce the rights of composers, producers, and performers. Essentially, the enforcement has been left to the private sector in the form of The Record Industry of South Africa (RISA).

Again, my opinion is that the piracy laws are unenforceable partly because the public don’t think they are defrauding the creative people involved in the music industry. If anything, they think they are hitting back at the Disneys and Gallos who on the face of it seem to be doing okay despite rampant piracy.

I recall an episode in the 1980s with my own independent record label. About three weeks before the release of a new Jonathan Butler album, cassette tapes of the record were available for R5,00 (SA Rand) from a hustler with a table of cassettes of popular local and international repertoire at Bellville (Cape Town) station.

Erlmann describes some of the characters involved in the private enforcement raids managed by RISA, actions which were little more than the proverbial fingers being thrust into leaking dykes. These sorties were by individuals who were proxy law enforcement, interacting with the police, who in turn are ill-equipped and uninterested in applying the law to these milder misdemeanours.

Collection Societies

Beyond enforcement, there has to be a structure to collect the licenses enabled by a just legal framework around IP. This is where the collection societies come in. There are different organisations in SA, each dealing with separate sides of the licensing processes, set up to help to rightfully reward the Lindas, Gallos, and the rest of us who are part of the music business landscape.

Erlmann chose to look at the biggest of these, the South African Music Rights Organisation (SAMRO). His research is thorough and insightful. I have been a SAMRO member for over a quarter of a century as a music publisher. His work brings to light many elements that I had not worried about – or should I say, took for granted.

Following an “internship” with the organisation, he was able to describe many of the issues around what is fundamentally a very imprecise process of collecting and distributing the money due for licenses on behalf of IP owners. For example, he depicts the process and morality of the press gang tactics used by SAMRO staff to get the owners of small coffee shops to cough up some of their income for the pleasure of piping recordings over their little tannoys for the subliminal entertainment of their customers. Or, for that matter, trying to license the use of recorded music by a spaza shop owner who has a jukebox supplied by some third party in his converted shack. The reader should not get me wrong; I believe these licenses should be in place. That it is probably the big US publishers who benefit most does nonetheless jar somewhat.

The work of SAMRO is no small undertaking. It includes documenting, tagging, or categorising the music; listing the work’s creators and rights owners; and noting the nature of the usage. Live performances, DJs in clubs, radio stations, internet usage – as well as the licenses for big payers, the TV stations – all need to be monitored and categorised, and all qualify for different license rates. Then this revenue must be collected and paid out in a fair and legal way!

Add to this a dash of corporate corruption. Erlmann recounts the story of the Dubai swindle (my word) where the corrupt management of the organisation colluded with grifters (my word) from the Emirates to defraud SAMRO, and therefore many local musicians, of a sum of around R50 million via a copyright “investment” project.  In addition, the fixers in Dubai were paid monthly salaries of half a million Rand while they lied to SAMRO and others over several months, if my memory serves me, a part of the deal not even approved by the SAMRO board.

I have a little story to tell in relation to the above theft. I happened to be on a business trip to Cape Town at the time SAMRO was doing a countrywide roadshow to justify the plans of a certain Mr Dlamini to “invest in the Dubai copyright business”. My local office got an invitation to attend a meeting to introduce an “exciting” new program that the organisation seemed to have already decided to embark upon.

I rose at the meeting to question the wisdom of splashing out on this plan instead of overhauling what I complained about as SAMRO’s archaic computer system, as well as about the lack of a credible online portal for music users and creators.

Very quickly the chairman put me in my place, to the approval of some of the creatives in the audience. The meeting attendees were told how this idea was going to bring in substantial revenue to, amongst other things, the benefit of the “retirement and burial funds” for members – funds that are run by SAMRO!

Erlmann further discusses the history of the SA collection society scene, from the pre-apartheid days of the UK-based PRS, before SAMRO was established, through the changes after 1994, as well as the new management culture at the society in the New South Africa. My observation is that while the Broderbonders had their political priorities, they ran a tight ship, admittedly on a smaller scale in those days. I could get on the phone to Pat Botasso and get answers related to my catalogue within minutes. My license printouts came in big boxes of computer paper, but they came. The record companies were obliged to send out “stats” for publisher approval monthly. When it all fell into the hands of the new copyright czars, the old level of communication along with the obligations to small publishers seemed to evaporate.

Finally, Erlmann describes the arbitrary executive dealings with what we, as publishers, call Black Box Revenue. This is money that is collected relating to songs that can’t be allocated to IP owners or from the so-called DP categorization – the performance revenue on traditional works or works in the public domain. He tells of how the big international publishers take the lion’s share of this revenue, and the rest is allocated in an unknown way to local stakeholders.

If you are a publisher and can get your hands on this book, read the section on SAMRO.

Summary

Lion’s Share is an illuminating overview of a big part of the SA music business and how it fits into the global cultural industry. There is a fair amount of legal jargon and academic discourse. In an anthropological study I suppose there has to be. Still, Erlmann has delivered a remarkable book, packed with information, all very logically presented. Ultimately, he notes that the new lawmakers, lawyers, and industry players seeking change will be forced into a discourse in the language of the Global North and based on the colonial history of copyright itself.