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

a provisional licence fee of R27 577 756 to RiSA “to settle the past” and a provisional licence fee of R2 millionper quarter ‘moving forward’. The CRC was led to believe that this would happen by the end of July 2011.3.2.19. Subsequently, on 6 September 2011, Mr Lister, the chairperson of RiSA, wrote to the chairperson of the CRC,stating that the SABC had not complied with the undertaking given to the Commission in this regard andrequesting that the chairperson convene an urgent meeting with the parties involved to establish, as Mr Listerput it, “why the SABC had reneged on the undertaking”. The CRC considered Mr Lister's request and concludedthat it would not be able to accede to it, but would deal with the matter in its report and allow the facts to speakfor themselves.3.2.20. Copyright in music videos, being ‘cinematograph films’ as defined in Section 1 of the Copyright Act, is governedby Section 8 of the Act. Among the acts, in respect of which exclusive rights are conferred on the owners of thecopyright, is that of broadcasting music videos (Section 8(1) (c)). The definition of ‘cinematograph film’ inSection 1 (1) of the Act provides that “cinematograph film ... includes the sounds embodied in a soundtrackassociated with the film”. No compulsory licence is created so the broadcasting of a music video without thepermission of the copyright owner is an infringement.3.2.21. Before the end of March 2007, in terms of a licence agreement concluded with RiSA, the SABC made use ofmusic videos, the copyrights of which belong to South African and foreign owners who are members of RiSA.In November 2005, at the SABC's request, RiSA sent the SABC a video licence proposal providing for differentroyalty rates for the broadcast use of videos in different slots and dealing with different types of usage, i.e.whether as content in an editorial programme or as ‘fillers’ between programmes. Pending finalisation of anagreement in respect of the matters dealt with in the proposal, it was agreed that the SABC would makequarterly provisional payments to RiSA under the current agreement. By the end of March 2007, when thatagreement expired, the SABC had not responded to RiSA's proposal. The SABC executive managementrequested RiSA to grant the broadcaster an extension of the existing interim licensing agreement, to which RiSAagreed, providing that the SABC made further provisional payments from 1 April 2007. The SABC executivemanagement agreed to this, but the broadcaster failed to make any interim payments pending the finalisation ofthe new licence agreement. It, however, continued to make use of music videos controlled by RiSA. Numerousmeetings were held in an attempt to reach agreement on the terms of the licence, and other meetingsscheduled to discuss the matter were cancelled on short notice by the SABC. The negotiating teamrepresenting the SABC was frequently changed and negotiations often had to recommence from the beginning.Eventually, in April 2010, RiSA instituted an action in the South Gauteng High Court claiming payment of arrearinterim royalties for the broadcasts of music videos. The SABC defended the action, claiming that theexecutives who agreed to the extension of the licence and to the payment of provisional interim royalties (theChief Financial Officer and the Head of Content Enterprises) were not authorised to conclude the agreement.The SABC denied that RiSA's members owned the copyright of the videos that the SABC had continued tobroadcast without payment. After these defences were raised, RiSA launched an application for an interdictpreventing the SABC from broadcasting music videos, the copyrights of which are owned by members of RiSA.3.2.22. The undertaking given by the SABC to the CRC was that R27 575 756 would be paid “to settle the past” andfurther quarterly payments would be made “moving forward”. It appears that the negotiations between theparties have broken down over the contract in respect of future broadcasts. However, agreement wasreached on the terms of the contract “to settle the past” by the making of a provisional payment in respect of theuse of music videos from 1 April 2007 to 31 March 2010, pending the determination by the Copyright Tribunal of- 23 -