Copyright Review Commission Report - ICT Law and Regulation ...

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xxi.The report considers developmental aspects relating to the local music industry and the need foreducation about copyright matters of both the public (which has to be persuaded as to the legitimacy and valueof copyright and performers' rights) and musicians (so that they can avoid being exploited). See Chapter 12.xxii.The CRC recommends the establishment of an interdepartmental steering committee, which should be led bythe dti with representatives from the Department of Arts and Culture (DAC) and the Department ofCommunications (DOC) or ICASA, to drive the implementation of key aspects of this commission. Thiscommittee should include the Registrar and heads of all relevant collecting societies. See Chapter 13,paragraph 13.6.2.xxiii.The question of introducing a blank tape levy, which was recommended by the Music Industry Task Team(MITT), is being considered by the Task Team appointed by the DAC and was not dealt with by the CRC in thisreport.xxiv.A comparative study was conducted with Brazil, France, India, Norway, Senegal, Switzerland and the UK. Keyfindings include: With regard to the maturity of the industry, South Africa lags behind when compared with the developedcountries; India and Brazil face similar challenges around the collection of royalties; South Africa is the highest importer of music despite the fact that it is the only country with a formal musicquota system; With regard to the efficiencies around collections processes, significant improvements are required; Only Brazil and France have fair competition among the collecting societies with regard to membership;and No country has fair competition with regard to the music users’ market. See Chapter 14.xxv.The CRC recommends that ICASA include as a condition in broadcasters’ licences that repeated failure bybroadcasters to comply with needletime and copyright obligations will lead to the cancellation of such licences.See Chapter 11, Table 26 (e).- 6 -
1 INTRODUCTION1.1 ESTABLISHMENT OF THE COMMISSION1.1.1. On 18 November 2010, the Minister of Trade and Industry, Dr Rob Davies, MP, established the CopyrightReview Commission (CRC) to assess concerns and allegations about the collecting societies model that is inplace for the distribution of royalties to musicians and composers of music. The CRC, which is accountable tothe Minister of Trade and Industry, was instructed to advise and make recommendations for the Minister’sconsideration on 19 terms of reference, set out in 1.3 below.1.2 MEMBERS OF THE COMMISSION1.2.1. The following persons were appointed as members of the Commission: the Honourable Mr Justice IG Farlam(chairperson), Mr Oupa Lebogo, Mr Nala Mhlongo, Prof. Tana Pistorius, Dr Jean Swanson-Jacobs, and Prof.Musa Xulu.1.3 THE COMMISSION’S TERMS OF REFERENCE1.3.1. Assess the effectiveness of the structure of collecting societies in South Africa, including those that belong toauthors, composers, recording companies, musicians/artists and others. The CRC should makerecommendations to improve the collective management of copyright.1.3.2. Assess the relationship of collecting societies in South Africa to determine the extent of and access to royaltiesfrom public and private broadcasters and how these royalties are distributed to artists.1.3.3. Assess the nature of private and public agreements that radio and TV stations have with local and internationalcollecting societies, and determine how royalties are distributed and the pattern of receiving for local vis-à-visinternational rights owners.1.3.4. Assess the nature and extent of the use of music by mobile telephony companies and whether these companiesare paying copyright royalties to the rightful owners.1.3.5. Assess the distribution of royalties and determine the percentages distributed nationally vis-à-vis outside SouthAfrica.1.3.6. Assess tariffs associated with these licensing agreements.1.3.7. Assess licensing agreements that universities, other institutions of higher learning and training institutions havewith collecting societies regarding royalties for copyright or literary work; and how these royalties are distributedto collecting societies and from there on to artists, composers, authors and/or publishers.- 7 -
Page 2 and 3: TABLE OF CONTENTSLIST OF ABBREVIATI
Page 4 and 5: 11.8 RECOMMENDATIONS ..............
Page 6 and 7: LIST OF TABLESTable 1: Cases of Non
Page 8 and 9: NORMOSPsPOSAPPLPPL (India)ProLitter
Page 10 and 11: These problems are addressed in the
Page 14 and 15: 1.3.8. Determine whether all money
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Page 18 and 19: 2.3 SUBMISSION BY THE DEPARTMENT OF
Page 20 and 21: Aspects of Intellectual Property Ri
Page 22 and 23: (1) Subject to the provisions of th
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Page 26 and 27: society, the South African Recordin
Page 28 and 29: 3.2.14. With the liquidation of SAR
Page 30 and 31: the final rate or rates to be appli
Page 32 and 33: (a)that payment is to be made to th
Page 34 and 35: information as to their use to enab
Page 36 and 37: The WCT and WPPT oblige members to
Page 38 and 39: Once the handset technology changed
Page 40 and 41: 4.3.16. In 2009, in what was coined
Page 42 and 43: 4.4.6. In exchange for the above li
Page 44 and 45: operators are licensed by NORM to p
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8.1.4.2. Needletime royalties are n
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8.1.7.4. For the past five years, V
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PRS (UK)SPRE (FRANCE)SUISA(SWITZERL
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DetailsPerformance RightsSound Reco
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8.2.7 Comparative Study Performed b
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y a collecting society. A rights ho
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agency, its rights being derived fr
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Mr Robinson said DALRO assumed the
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10.1.6. The distribution to publish
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10.4.4. Most of the other collectin
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10.6.3.4. South African English-lis
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10.10 CONTRACTUAL RELATIONSHIPS BET
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10.12.2. The Regulations should rec
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licence that the licensee comply wi
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11.4.6. The details of ICASA’s ta
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RecommendationsTimelines for Recomm
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enterprises. There was a suggestion
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Copyright as it relates to copyrigh
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13.4 DEPARTMENT OF ARTS AND CULTURE
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Table 28: Comparative Study’s Key
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KEY ITEMS BRAZIL FRANCE INDIA NORWA
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KEY ITEMS BRAZIL FRANCE INDIA NORWA
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about 30%, which is the highest amo
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15.1.3. The Copyright Tribunal’s
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15.1.20. Local music content requir
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for the selected artists. The outco
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King III Report by Institute of Dir
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Paranagua Pedro, “Strategies to I
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Copyright Amendment Act of 1984Copy
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APPENDIX 1(B): SUMMARY OF ORAL REPR
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Due to the fact that the existing c
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Mr BrottelProtection of copyright m
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1.1.3. LIST OF ENTITIES VISITED AND
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In the 2009 Annual Report of ABRAMU
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The implementation of this law led
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ecordings. In respect of audio-visu
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In 1995, ECAD distributed 72% of it
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niches in the market to ensure fair
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Proprietary rights allow authors to
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International royalty distribution
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3.2. Relevant LegislationsThe prese
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IPRS uses the standard tariffs in r
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Ad-hoc workshops on copyright are c
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meaningful living out of their crea
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4.1.3. LICENSING AND LEGAL REGIMESI
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Ballet teachers; Teachers in the fi
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It was founded in 1928 by the Norwe
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6.2. STRUCTURE OF COLLECTING SOCIET
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6.5. COLLECTION OF MUSIC ROYALTIEST
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1957, when the Managing Director of
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16.4.14 SWISSPERFORM: CHF4 millionI
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Cross-border licensing of digital r
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algorithm could be used to determin
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Collecting societies in the UK all
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APPENDIX 3: RECOMMENDATIONS BY MITT
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1.PREAMBLEThe Music Industry Task T
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The environment in which the music
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3.1.3 IMPLEMENTATION AND ACCESSION
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In this regard, the Minister should
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3.5.6 OMBUDSMANThe music industry s
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RECOMMENDATION 23:The MITT recommen
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The MITT further recommends that DA
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APPENDIX 4A: EXTRACTS FROM COPYRIGH
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(f)(g)doing, in relation to an adap
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(i)requiring notice of any intended
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(b)any organization claiming to be
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PERFORMERS’ PROTECTION ACTNO. 11
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the parties may agree to refer the
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ANNEXURE 5: COPY OF SARRAL’S CONT
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ANNEXURE 6: SARRAL’S AUDIT REPORT
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TERMS OF REFERENCESNO’SREQUIREMEN
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