Jerusalema + Covid-19 = a conversation we’ve been too scared to have

Ha! I called it!

Half a year ago I said artists would eventually realise the potential of licensing fees as a revenue stream when touring and performing was stopped because of Covid-19 and just look at this now. Master KG and his label, Warner, have come to collect – and rightly so.

Two things we’ve become accustomed to having for free are news and music. Yet nobody sourcing those things for free seems to concern themselves with the creators of those things and their well-being.

In case you’ve missed it, local companies who have been using the Jerusalema hit to do videos as part of the #JerusalemaChallenge have been hit with bills for its use. If you’ll be so kind as to excuse the pun, I think it’s glorious!

What would be even more glorious is if this goes on to solidify what copyright means and how people understand it.

One might say that to use a copyrighted work without permission is stealing, but that’s not exactly legally correct.

It’s not quite theft because the artist will always own it. Even if others use it the Copyright Act still protects it. So if you’re not “stealing” but you’re using it without permission, what is the crime?

That’s the thing, it’s not a crime and people believe that if it’s not a crime, then they can do it freely. It’s just that some things can’t be done even if they’re not crimes.

Not leaving a club upon request despite the “right of admission reserved” sign isn’t a crime, but the bouncer can still kick you out. Not paying your university fees is not a crime but the university can still deregister you.

And now, South Africa will finally learn that using another person’s music without permission is not a crime, but the song owner can still charge you for it.

I believe it’s the mark of a growing industry when one starts to commercialise intangible assets and, for the music industry to grow in South Africa, that needs to happen.

Now it could and should be argued that by initiating the “challenge” Master KG tacitly provided his consent to use the song and if I was a small time club or school class, I would probably raise that argument if I got hit with a bill. But then what of the big corporates who have used the song for financial gain and goodwill?

Moreover, our law is pretty clear about how matters of copyright need to be in writing.

The problem is, since we’ve never really spoken about this. Many people have gotten away with claiming ignorance and relying on the fact that artists and, in many instances, their labels, just don’t have the resources to track and bill all the uses of their music.

What many now see as a major artist backed by a major label flexing at the expense of whoever, is actually a step in an important direction.

If this escalates the debate on copyright and forces Parliament to actually put some mental effort into the new Copyright Bill that’s been jumping back and forth between them and the president’s desk, we may just realise the power of music and then the power of content.

Australia accomplished something amazing by forcing big platforms like Facebook and Google to share revenue with news media on their platforms.  That matters because one should not be able to sneakily exploit the work of another to gain any favour without at least permission, if not paying for it.

If this ends here, yeah, maybe it will be something like a big artist flex, but if it goes on, as I hope it does, it will be huge for artists in South Africa. It will be the start of opening the doors for artists to be paid for the way their work complements brands, platforms, and companies.

If you look at any major law-changing Constitutional Court case, it takes somebody with a lot of drive and resources behind them to change the law to make it better for those who don’t have the means.

This is why we have access to ARVs, why the government provides housing and why queer people can marry. Oh, and also why you can smoke your joint while reading this at home.

When a major artist makes noise about why they are entitled to revenue, it’s not just about them, but the entire industry which will benefit.

And digital use is obviously the way of the future so that must be monetised. Anybody who disagrees can send me a photo of all the CDs they bought in the last 12 months. No? Didn’t think so.

Richard Anthony Chemaly. Entertainment attorney, radio broadcaster and lecturer of communication ethics.

For more news your way, download The Citizen’s app for iOS and Android.