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the final rate or rates to be applied. If the amount for the arrears differed from that computed in terms of theTribunal's determination, there would be either a partial refund by RiSA or an extra payment by the SABC.Despite the fact that the SABC's representatives confirmed that the two agreements were not linked, it appearsthat the SABC's refusal to implement the undertaking it gave to the CRC in respect of the arrears is based onRiSA's refusal to accept the SABC's proposals based on future use and its insistence on extra terms, which theSABC does not find acceptable.3.2.23. The CRC hopes it is not too late for the parties to resume negotiations on the issues outstanding and resolvethem satisfactorily.3.3 LESSONS TO BE LEARNED FROM EVENTS SINCE THE ENACTMENT OFNEEDLETIME LEGISLATION3.3.1. The fact that nine years after the enactment of the needletime legislation, not a cent has been paid to thosewhose sound recordings have been broadcast shows that the provisions in the Copyright Act and Performers'Protection Act dealing therewith, as well as the Collecting Societies Regulations, are defective and requireamendment.3.3.2. Section 9A (1) (a) of the Copyright Act and Sub-sections (1) (b) and (3) of Section 5 of the Performers' ProtectionAct put in place a statutory licence for those who intend to perform the acts referred to in Section 9 (c), (d) and(e) of the Copyright Act without the permission of the rights holders. Unlike the legal rules relating to rightsenjoyed, for example, by composers, which from a jurisprudential point of view can be described as ‘propertyrules’, the rules relating to the use of rights (Section 9 (c)-(e)) subject to the payment of royalties in terms ofSection 9(A(1)(a)) of the Act can be described as ‘liability rules’. ‘Property rules’ describe how an owner ofproperty may control the use of his or her property by a stranger, subject to the power of the Copyright Tribunal,under Section 33 (3) and (5) of the Copyright Act, to overrule a refusal by an owner to give permission for the useof the property or the grant of permission on unreasonable terms (in which case the permission is granted by theTribunal and must exist before the stranger uses the property). ‘Liability rules’ permit a stranger to use the rightswithout the owner's permission, but subject to the incurrence on the user's part of liability to pay the owner of theright a royalty, to be quantified by agreement with the owner of the right or determined by the Copyright Tribunalor an arbitrator. The distinction between property and liability rules was expounded by Guido Calabresi and ADouglas Melamed in “Property Rules, Liability Rules and Inalienability, One View of the Cathedral”, 85 HarvardLaw Review 1089 (1972). The statutory licence in respect of needletime does not adequately protect the positionof the holders of the rights to which the licence relates, and this lack of protection led directly to the unsatisfactorysituation outlined above. (In this respect, it differs markedly from the corresponding provisions in the BritishCopyright, Designs and Patents Act, 1988, as amended, on which many of the recommendations set out beloware based.)3.3.3. The Act simply requires the statutory licensee (the user) to pay a royalty when agreed or determined, withoutspecifying that the agreement or determination is to exist before the use, giving rise to the liability to pay theroyalty. If there is no agreement as to the royalty and no reference to arbitration, a reference to the CopyrightTribunal could take a long time before being finalised. The Tribunal's decision may be taken on appeal to a fullBench in the High Court and even to the Supreme Court of Appeal if the necessary leaves to appeal are granted,all of which could lead to further delays. This puts the performer in an even worse position. The performer does- 24 -
not have an unfettered right to prohibit the needletime use of his or her performance. Section 5 (2) provides aneedletime right for all fixed performances published for commercial purposes, subject to the payment of aroyalty.3.3.4. An attempt to provide some protection to the rights holder is contained in the regulations, but only applies if theperformer and copyright owner are members of a collecting society or societies and if such a society hasproposed a tariff in respect of the intended use. Where the proposed tariff is accepted by the intending user orhis or her representatives, and the user assumes the obligation to pay the royalty under the tariff, he or she isentitled to a licence (Regulation 7 (4)). In cases where the potential user does not accept the tariff proposed, heor she has the ‘option’ to pay the money into an ‘escrow’ account. Once the money is deposited, and theinformation furnished for the later distribution of the funds, the user is granted a provisional statutory licence(Regulation 7 (5)). If this does not happen, and the matter is referred to the Tribunal or arbitrator, the collectingsociety may apply to the Tribunal or arbitrator for an order that the potential user pay the amount demanded intothe ‘escrow’ account and provide the necessary information for later distribution (Regulation 7 (6)). (Thebroadcasters contend that these regulations are ultra vires.)3.3.5. Apart from whether these regulations are ultra vires, other questions arise: Why should a potential user have to pay what could be an exorbitant amount demanded by a collectingsociety in order to get a provisional statutory licence? Why should that portion of the demanded royalty that the potential user admits is reasonable, be retained inthe ‘escrow’ account and not be distributed to the rights holders?3.3.6. To address the above difficulties and ensure that the rights holders are adequately protected in cases wherepotential users wish to obtain statutory licences to perform the acts set out in Section 9 (c), (d) and (e), the CRCrecommends that the Copyright Act be amended to provide for the following:3.3.6.1. That before a potential user begins to perform any of the acts set out in Section 9 (c), (d) or (e) of the Act(unless an agreement exists with the copyright owner or the relevant collecting society), the potential usermust:3.3.6.1.1. Give the copyright owner or collecting society notice of the intention to perform the act in questionand ask the copyright owner or collecting society to propose terms of payment;3.3.6.1.2. After receiving the proposed terms of payment or the expiry of a reasonable period, give reasonablenotice to the copyright owner or collecting society of the date when the potential user proposes toperform the act in question and the terms of payment in accordance with which the potential userintends do so;3.3.6.1.3. Give notice to the Copyright Tribunal of the intention to perform the act and the date on which it isproposed that this will be done;3.3.6.1.4. Apply to the Tribunal to settle the terms of payment; and3.3.6.1.5. The conditions on which the potential user may provisionally be permitted to perform the acts are:- 25 -
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 12 and 13: xxi.The report considers developmen
Page 14 and 15: 1.3.8. Determine whether all money
Page 16 and 17: 1.4.9. The CRC derived considerable
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
Page 24 and 25: Copyright Tribunal or an arbitrator
Page 26 and 27: society, the South African Recordin
Page 28 and 29: 3.2.14. With the liquidation of SAR
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
Page 46 and 47: 5.2 FUNCTIONING OF COLLECTING SOCIE
Page 48 and 49: the grant of licences. Article 17 o
Page 50 and 51: 6.1.3. The CRC’s assessment of th
Page 52 and 53: 6.3.3. SAMPRA should be given one y
Page 54 and 55: Corporate Governance GapsKing II Re
Page 56 and 57: King IIIPrincipleKing IIIRequiremen
Page 58 and 59: King IIIPrincipleKing IIIRequiremen
Page 60 and 61: 8 COLLECTION OF MUSIC ROYALTIES8.1
Page 62 and 63: 8.1.4.2. Needletime royalties are n
Page 64 and 65: 8.1.7.4. For the past five years, V
Page 66 and 67: PRS (UK)SPRE (FRANCE)SUISA(SWITZERL
Page 68 and 69: DetailsPerformance RightsSound Reco
Page 70 and 71: 8.2.7 Comparative Study Performed b
Page 72 and 73: y a collecting society. A rights ho
Page 74 and 75: agency, its rights being derived fr
Page 76 and 77: Mr Robinson said DALRO assumed the
Page 78 and 79: 10.1.6. The distribution to publish
Page 80 and 81:
10.4.4. Most of the other collectin
Page 82 and 83:
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
Page 90 and 91:
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
Page 124 and 125:
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
Page 138 and 139:
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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Page 204 and 205:
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Page 206 and 207:
ANNEXURE 5: COPY OF SARRAL’S CONT
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Page 210 and 211:
ANNEXURE 6: SARRAL’S AUDIT REPORT
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Page 214 and 215:
TERMS OF REFERENCESNO’SREQUIREMEN
Page 216 and 217:
Page 218 and 219:
Page 220 and 221:
Page 222 and 223:
Page 224:
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