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information as to their use to enable the societies concerned to distribute the royalties payable as a result ofsuch use.4 COPYRIGHT AND THE LAW4.1 THE RISE OF THE DIGITAL MUSIC DELIVERY4.1.1. Digital music has been hailed by many as ‘the future of music’. Digital channels now account for 29% of globalmusic industry revenues. One of the vital elements of the European music industry’s digital strategy is thepartnerships that record companies, ISPs and mobile operators have forged. New ventures, such as ‘cloud’music, offer licensed services that grant users access to music stored on remote servers for use on a wide arrayof devices.4.1.2. According to new data from PricewaterhouseCoopers’ (PwC) first edition of its South African Entertainment andMedia Outlook: 2010-2014, the South African recorded music market has experienced a physical decline overthe past two years, losing 17,3% in 2009. Vicki Myburgh, Director of Entertainment and Media for PwC SouthernAfrica, said:Spending on physical formats is expected to decrease to R810 million in 2014 from R1,4 billion in 2009, a 10,4%compound annual decline.4.1.3. The licensed digital market has developed relatively slowly in South Africa due to bandwidth limitations. Mobileconnectivity has greater penetration in South Africa and mobile downloads continue to dominate the market.Matt Stone (www.trrdigital.com) notes that with the proliferation of smart phones and other mobile devicescapable of high-speed connections, digital content cannot only be accessed by mobile, but also paid for throughthe mobile service provider. Mobile content is also more affordable. PwC’s Myburgh notes that:Prices for digital formats are significantly lower than that for physical formats and this will result in a shift in theconsumption between the two.4.1.4. It has been noted in an article in Business Report (cited in the list of books and articles at the end of this report)that despite the digital music market infancy, spending in South Africa is expected to treble to R425 million in2014, from R130 million in 2009, representing an average compound annual growth of 26,7%.4.1.5. For any digital content provider aiming to capture a large audience on this continent, a mobile solution is a keyinstrument.4.1.6. Statistics for royalty income for digital music sales pose a dark picture for South Africa. It is of the utmostimportance that mobile royalties be managed efficiently, particularly in light of the increasing importance of thedigital delivery of music. As will be noted infra, South Africa’s antiquated legislation has led to uncertainty andhampered the efforts of collecting societies to license digital content providers. A second factor is the low levelof compliance by mobile service providers. Although some mobile service providers have obtained thenecessary copyright licences to offer online music products, the majority remain unlicensed.- 28 -
4.2 DIGITAL COPYRIGHT LAW4.2.1. Traditional understandings of music performance, reproduction and distribution face new challenges in a worldof podcasts, webcasts and the streaming of music.4.2.2. The ‘analogue’ reproduction right is translated to the digital era with ease. The downloading of a work on amobile device is, for example, a reproduction and one of the exclusive rights reserved for the copyright owner.4.2.3. However, the digital transmission of copyright works on networks falls outside the traditional notion of ‘makingworks available to the public’ (performing, broadcasting and diffusion), and the interactive nature of digitaltransmissions exacerbates the problem.4.2.4. An additional factor that distinguishes the digital from the traditional, physical distribution of music is the‘incidental’ or ‘cached’ reproductions that are made while digital music travels to its final destination. (In the US,music publishers have demanded royalties for these ephemeral reproductions – see Day 2010 204-206; Cardi2007 at 855-856; Loren 2003 at 702-703.)4.2.5. To deal effectively with digital acts of exploitation, such as the uploading of a work to a server or the streamingof sound recordings, a new right, namely ‘communicating the work to the public’ was devised. In December1996, WIPO adopted two new treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performances andPhonograms Treaty (WPPT), together commonly referred to as the ‘Internet treaties’.4.2.6. The WCT and WPPT entered into force in March 2002 and May 2001 respectively. Key aspects of thesetreaties are: the right of authors of literary and artistic works to authorise the communication of works to the public; the right of making available a performance and a phonogram; performers are granted moral rights; the management of rights information and the anti-circumvention provisions; and the extension of limitations and exceptions to the digital environment.4.2.7. The WCT and WPPT oblige members to provide legal remedies against the circumvention of technologicalmeasures to protect the rights of the copyright holders. Copyright owners are increasingly taking advantage oftechnical protection measures (TPMs) to protect their intellectual property. TPMs include: measures for access control and anti-copy devices; proprietary viewer software; encryption; passwords; watermarking; fingerprinting (user-authentication); metering and monitoring of usage; digital registration of the works at various institutions; and remuneration systems.- 29 -
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 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 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
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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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