Johnny FIANDEIRO BSc Eng (Elec) LLB Afrika/Nuus/Oos-Randse-inwoners-vas-oor- dwelm-fabriek IP ASPECTS OF LOCAL CONTENT DEVELOPMENT

PERFORMERS PROTECTION ACT 1967 (as amended by Act No. 8 of 2002) PROVIDES FOR THE PROTECTION OF PERFORMERS OF LITERARY AND ARTISTIC WORKS Section 4 entitles a performer to prevent a person from: Broadcasting or communicating to the public a live performance; Making a recording of a live performance; Making a reproduction of a recording of the performance, if the original recording was without the performer’s consent, or for a purpose other than that for which the performer had given consent; or

Broadcasting or communicating the performance to the public for commercial purposes, without the payment of a royalty to the performer. Section 5 lists the restricted acts which only the performer is entitled to in relation to a performance (actors, singers, dancers, musicians, etc). Section 5(1)(b) provides that no person shall by any means of a fixation of a performance published for commercial purposes, without payment of a royalty to the performer concerned:

(i) broadcast the performance; (ii) cause the performance to be transmitted in a diffusion service, unless it is a lawful broadcast and operated by the original broadcaster; or (iii) cause any communication of the performance to the public. Section 5(3) provides that the amount of royalty shall be determined by agreement between performer and broadcaster or communicator or between their respective collection societies. If no agreement, Copyright Tribunal or Arbitration

Section (4)(a): A performer who has authorised the fixation of his/ her performance shall, in the absence of agreement to the contrary, be deemed to have granted the person who arranges the fixation to be made the exclusive right to receive the royalties in respect of any broadcast, transmission, communication to public: Provided that the performer is entitled to share in any payment received in manner as agreed between the parties or representative collection societies. No agreement? Copyright Tribunal or Arbitration

COPYRIGHT ACT NO. 98 OF 1978 The following works, if they are original, shall be eligible for copyright: (a) Literary works (novels, stories and poetical works, dramatic works, stage directions, cinematograph film scenarios and broadcasting scripts); (b) musical works (music, exclusive of any words or action intended to be sung, spoken or performed with the music); (c )artistic works (paintings, sculptures, drawings, engravings and photographs, works of architecture); (d) cinematograph films; (e) sound recordings (any fixation or storage of sounds, or data or signals representing sounds, capable of being reproduced); (f) programme-carrying signals; (g) published editions; (h) computer programs.

(2)Any work, except a broadcast or programme-carrying signal, shall not be eligible for copyright unless the work has been written down, recorded or represented in digital data or signals or otherwise reduced to a material form NATURE OF COPYRIGHT IN LITERARY OR MUSICAL WORKS Copyright in a literary or musical work vests the exclusive right to do or to authorise the doing of any of the following acts in the Republic of: (a) Reproducing the work in any manner or form; (b)publishing the work if it was hitherto unpublished; (c)performing the work in public; (d)broadcasting the work; (e)causing the work to be transmitted in a diffusion service, unless such service transmits a lawful broadcast, including the work, and is operated by the original broadcaster

(f)making an adaption of the work. NATURE OF COPYRIGHT IN SOUND RECORDINGS Copyright in a sound recording vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic: (a) making, directly or indirectly, a record embodying the sound recording; (b) letting, or offering or exposing for hire by way of trade, directly or indirectly, a reproduction of the sound recording; (c) broadcasting the sound recording; (d) causing the sound recording to be transmitted in a diffusion service, unless that service transmits a lawful broadcast, including the sound recording, and is operated by the original broadcaster; (e) communicating the sound recording to the public.

ROYALTIES (1)(a) In the absence of an agreement to the contrary, no person may broadcast, cause the transmission of or play a sound recording as contemplated in section 9 (c), (d) or (e) without payment of a royalty to the owner of the relevant copyright. (b) The amount of any royalty contemplated in paragraph (a) shall be determined by an agreement between the user of the sound recording, the performer and the owner of the copyright, or between their representative collecting societies. (c) In the absence of an agreement contemplated in paragraph (b), the user, performer or owner may refer the matter to the Copyright Tribunal referred to in section 29 (1) or they may agree to refer the matter for arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).

(2)(a) The owner of the copyright who receives payment of a royalty in terms of this section shall share such royalty with any performer whose performance is featured on the sound recording in question and who would have been entitled to receive a royalty in that regard as contemplated in section 5 of the Performers’ Protection Act, (b) The performer’s share of the royalty shall be determined by an agreement between the performer and the owner of copyright, or between their representative collecting societies. (c)In the absence of an agreement contemplated in paragraph (b), the performer or owner may refer the matter to the Copyright Tribunal or they may agree to refer the matter for arbitration in terms of the Arbitration Act. (d) Any payment made by the user of the sound recording in terms of this subsection shall be deemed to have discharged any obligation which that user might have to make any payment in respect of his or her use of a corresponding fixation in terms of section 5 of the Performers’ Protection Act, 1967.

NEEDLE TIME RIGHTS (aka Pay to Play Royalties) The 2002 amendments to the Copyright Act and the Performers’ Protection Act introduced needle-time rights. The term “needle-time rights” refers to the right of an owner of a sound recording (embodying a musical work) and the performer of the musical work, to receive a royalty in respect of the broadcast, or performance, of that sound recording. Prior to the amendments, performers enjoyed no copyright protection in respect of musical works. In other words, copyright protection in respect of musical works was limited to composers and authors. In the music industry, the parties entitled to payment of needle-time royalties, are the owners of the copyright in the sound recordings (usually the recording company) and the performing artists i.e. music performers, vocalists, recording artists, instrumentalists. The playing of recorded music to the public will generate royalties, and affect many industries:

GYMS © 2009 photobucket inc. all rights reserved

HAIRDRESSERS Copyright © LiveJournal, Inc. All rights reserved

SHOPPING CENTRES AND RETAIL OUTLETS z.about.com/.../2/palin-shopping-credit-card.jpg ©2009 About.com, a part of The New York Times CompanyThe New York Times Company

WEDDING ORGANISERS All Rights Reserved. © First Showing, LLC

CLUBS/ BARS/ RESTAURANTS arvind1187.files.wordpress.com/2007/09/funny-pics

COLLECTING SOCIETIES Collecting societies exist to administer the copyright in these types of works by negotiating licences (and assisting in the protection of copyright) and collecting and distributing royalties to the owners of the copyright. A collecting society may require that certain rights be assigned to it i.e. the collecting society becomes the copyright owner which entitles it to issue the required licences to music users. There are two major collecting societies in South Africa, namely the South African Music Rights Organisation (SAMRO) and the South African Music Performance Rights Association (SAMPRA). South African Music Rights OrganisationSouth African Music Performance Rights Association Both of these societies have been established in terms of the Copyright Act and have the necessary accreditation in terms of the Regulations to the Act. SAMRO is the largest organisation in Africa involved in the collective management of copyright and administers a variety of different rights on behalf of its members which include performers, lyricists, composers etc.

There are certain requirements for becoming a SAMRO member, but it is essentially open to any artist (or publisher) to become a member. SAMPRA represents the recording industry of South Africa. It collects and distributes royalties to the members of the Recording Industry of South Africa (RiSA). Only members of RiSA are therefore entitled to membership of SAMPRA. While RiSA’s members are mainly record companies, artists who distribute their own recordings may become RiSA members (and, in turn, SAMPRA members).

THANK YOU