Icasa offers hope to independent producers

Regulation & Policy

A discussion document issued on Friday by the Independent Communications Authority of SA (Icasa) could result in new regulations aimed at protecting independent producers who have cried foul about unfair treatment by broadcasters.

The producers, led by the Independent Producers Organisation, have been calling on Icasa to level the playing field. Broadcasters, especially the SABC, and producers have been at loggerheads over who owns the property rights to productions. The public broadcaster's argument has been that whoever puts up the money owns the rights. This has made it impossible for producers to resell programmes to other broadcasters and platforms, such as the internet and cellphones, for additional income.

According to Icasa, negotiations around the commissioning of programmes remain largely skewed towards the broadcasters, who dominate contractual negotiations and thus undermine the bargaining power of the independent producers.

The SABC has not fully exploited its rights, by failing to selling some of its TV programmes to other broadcasters, because of language barriers. According to Icasa, however, some broadcasters believe local TV programmes are not marketable internationally or that they look cheaper on the international market than their cost. As a result, they do not put much effort into selling programmes.

Icasa said this was exacerbated by the fact that some of the production companies were small and lacked the skills to market their products, so they relied on broadcasters to help them with run their businesses. Although Icasa acknowledged that the industry was plagued by challenges, it did not believe it was necessary to over-regulate the sector. Instead, a guiding framework was required to ensure a coherent development path. Icasa has proposed a self-regulatory approach to address the challenges and constraints that are behind the current legislative discourse.

"Whatever intervention is agreed to at the end must serve the relevant purpose and not punish any of the parties as they need each other," said the broadcasting regulator. The introduction of new pay TV providers and new channels, brought by the move to a digital network, would increase the demand for locally produced television content.

Icasa said agreements on intellectual property rights between broadcasters and producers were guided by the Copyrights Act. It did not have a clear legislative basis to act outside this legislation. In this way it differed from the practice of UK regulator Ofcom, which was mandated to deal with property rights issues.

The SABC, the Independent Producers Organisation and the SA Screen Federation have established a joint research project to look at international best practices on procurement for local content by public broadcasters and the issue of intellectual property rights. It aims to ensure that commercial opportunities are fully exploited. The production industry was estimated at R3 billion last year, of which the bulk was from the SABC. Interested parties have until January to submit comments on Icasa's discussion document.