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

(a)that payment is to be made to the copyright owner or collecting society as required at no lessthan quarterly intervals in arrears;(b) that the amount to be paid is to be as settled by the Copyright Tribunal or, where no suchdetermination has been made, in accordance with the proposal made by the copyright owner orthe relevant collecting society;(c) where the potential user alleges that the amount proposed is unreasonably high, the potentialuser is to pay:(i) the amount which the potential user alleges is appropriate to the copyright owner orcollecting society; and(ii) the difference between that amount and the amount proposed (or such portion of suchdifference as the Tribunal considers is reasonable in the circumstances) into the trustaccount of an attorney nominated by the copyright owner to be held in trust until adecision is given by the Tribunal on the appropriate royalty to be paid (or the partiesagree that it may be paid out in the manner agreed), after which such amount shall bepaid over to the copyright owner or collection society as represents the difference, ifany, between the amount determined as the appropriate royalty and the amountalready paid to the copyright owner or collecting society, any balance left over to berepaid to the potential user.(d)If the amount paid into the trust account is insufficient to cover the amount determined as theappropriate royalty, the balance outstanding must be paid by the potential user to the copyrightowner or collecting society.(e)Amounts paid to the collecting society in terms of sub-paragraph (c) (i) may be distributed by thecollecting societies to which they are paid, even if the appropriate royalty has not yet beendetermined.3.3.7. The CRC recommends that it should not be necessary (as Section 9A (1) (b) of the Copyright Act presentlyrequires) for the determination of the royalty payable under Section 9A (1) (a) that the performer, or a collectingsociety acting on his or her behalf, should agree thereto. In this regard, the CRC accepts the contention ofSAMPRA that the current provision is likely to lead to substantial problems in practice because of the difficulty ofprocuring the participation of a significant number of performers in a multiplicity of tripartite negotiations withpotential users and copyright owners. The CRC agrees further with the contention raised by SAMPRA thatcommercial reality will lead the copyright owners to seek an optimal royalty and that the performers' rights willbe fully protected by virtue of their entitlement to share in all such royalties.3.3.8. The CRC further recommends that Section 9A 2 (b) of the Copyright Act be amended to provide that theroyalties payable for the use of sound recordings be divided equally between (a) the copyright owner or owners,and (b) the performer or performers. It was common cause before the CRC that the representatives of recordcompanies and performers had agreed before the Portfolio Committee that such a provision be included in theAct. It was not, and instead the present provision was included whereby the division of royalties is to be made inaccordance with an agreement between the parties or, in the absence of such an agreement, with adetermination by the Tribunal or an arbitrator. This provision is impractical because it requires an agreement in- 26 -