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

every case (or a determination if such an agreement is absent). This has resulted in problems with regard to thedistribution of royalties collected and to differences between the Registrar and SAMPRA. The CRC wasinformed that those who drafted the 2002 Act departed from what the industry and the performers agreed wasthe appropriate division because of a fear that such a provision would be unconstitutional in that it mightinterfere with contracts between the parties concerned. The CRC is of the view that this fear is groundless. OurConstitution (unlike the American Constitution: see Article I, 10 thereof) does not contain a ‘contract clause’ andthe proposed provision is not likely to be struck down by the Constitutional Court.3.3.9. It also became apparent to the CRC that the present statutory provisions dealing with the Copyright Tribunalrequire substantial amendment to enable the Tribunal to perform effectively in the various matters that may comebefore it.3.3.10. In a memorandum submitted to the CRC, the Registrar of Copyright stated that the delays in finalising the twomatters before it relating to needletime royalties were “the result of unclear and vague regulations, which do notprescribe the procedure to be followed”. He recommended that a new set of rules be drafted to regulate theprocedure of the Tribunal and that such rules should create effectiveness and efficiency, and where possibleprovide for the tariff of fees payable by unsuccessful litigants to be lower than in the High Court. Herecommended that the Tribunal's jurisdiction be extended to cover infringement cases and all other copyrightdisputes, including those relating to cinematograph films. In addition, he recommended that the Tribunal bedistinguished from the court of the Commissioner of Patents, and that the Judge President of the North GautengHigh Court, who designates the Commissioner of Patents and therefore the presiding judge in the Tribunal,should designate a full-time commissioner to make the Tribunal a specialised copyright court.3.3.11. The CRC recommends a more extensive amendment of the provisions relating to the Tribunal than thatproposed by the Registrar. In its opinion, the Tribunal should consist of:(i) a President and a Deputy President, both of whom should be High Court judges appointed by thePresident of the Republic on the recommendation of the Judicial Service Commission (JSC); and(ii) three other members appointed by the President of the Republic on the recommendation of the JSC, eachof whom have at least five years’ experience at a high level in industry, commerce, business, publicadministration education or the practice of a profession.The sittings of the Tribunal should be held at such places and times as the President of the Tribunal determines.A quorum of the Tribunal should be constituted by one member, unless a party to a matter before the Tribunalrequests that it be constituted by more than one member, in which event it should be constituted by not lessthan two members, one of whom should be the President or the Deputy President. (The proposals in thisparagraph are based on the provisions of the Australian Copyright Act of 1968.)3.3.12. The CRC is of the view that the Registrar's other suggestions (together with a proposal first made to the HoexterCommission that there should be a special intellectual property court) should be referred to the StandingAdvisory Committee for consideration.3.3.13. The Commission recommends that the Copyright Act be amended to place an obligation on persons makinguse of the statutory licences (granted by Section 9A of the Copyright Act and Section 5 (1) (b) of the Performers'Protection Act) to provide collecting societies that control recordings used by such statutory licensees with- 27 -