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operators are licensed by NORM to provide downloads of sound recordings and ringtones to consumers, andonly Vodacom has concluded a mechanical rights licence with SAMRO. This means that the majority of mobileproviders (and, by implication, consumers) are dealing in infringing sound recordings and may be held criminallyliable for copyright infringement;2) Secondly, South African copyright and performers’ protection legislation is outdated and does not provide for allforms of digital exploitation;3) A third problem is the reluctance on the part of the self-regulatory body for mobile entities, WASPA, to play apro-active role in ensuring that all content providers pay the necessary royalties;4) ISPA is opposed to the adoption of a ‘3 strike’ rule to curb piracy; and5) Lastly, representations were made to the CRC that the collecting societies do not have the requisite knowledgeand insight to protect adequately their members’ interests in the digital environment.4.8 RECOMMENDATIONS4.8.1. All MNOs and WASPs should be barred by the Minister of Communications from distributing content unless theyare licensed by the relevant collecting societies.4.8.2. South Africa should amend its Copyright Act by adopting provisions suitable for the digital environment inter aliathe right to communicate literary and musical works to the public and the right to make available copies ofsound recordings. This should be done regardless of whether South Africa decides to ratify the Internet treaties.4.8.3. WASPA should amend its Code of Conduct to provide for the suspension of members that fail to conclude alicence with the collecting societies and/or pay the necessary royalties.4.8.4. The ECT Act and the Guidelines for Recognition of Industry Representative Bodies of Information SystemService Providers should be amended to require ISPs to adopt a graduated response for repeat infringersculminating in the suspension of access services of an individual.4.8.5. Collecting societies should take proactive measures to ensure that they efficiently collect royalties for the digitalexploitation of the works they administer.5 STRUCTURE OF COLLECTING SOCIETIES IN SOUTH AFRICA5.1 BACKGROUND5.1.1. Copyright confers exclusive rights that are vested in the owner, giving the owner the right to forbid others toexploit his or her work without authorisation. In theory, these rights can be exercised on an individual basis byagreement between parties.5.1.2. There are, however, certain rights that are difficult, if not impossible, to exercise individually and so rightsowners have banded together to exercise these rights on a collective basis. The need for such collective- 38 -
administration of rights was felt by composers and music publishers from the end of the second quarter of the19th century as regards the performance of non-dramatic music works in places of public entertainment.5.1.3. The establishment of the first collective licensing body predates the adoption of the Berne Convention for theProtection of Literary and Artistic Works in 1886. In France in 1852, SACEM (a society of authors, composersand music publishers) was established to administer public performance rights in musical works. Following theadoption of the Berne Convention, which recognises the public performance as a principal feature of theprotection to be afforded to all authors from the Berne Union countries, it became apparent to authors in manyother countries that in practice it was impossible to safeguard such a right on an individual basis. By the turn ofthe century, technical developments led to the advent of new categories of works protected by copyright.Following the recognition of public performance rights in sound recordings, collecting societies were establishedto represent authors and performers in countries that recognise these rights. The emergence of radio andtelevision broadcasting as a major user of copyright works in the first half of the 20th century, as well as othernew technologies that have developed in the interim and given rise to new users of work (such as reprography,satellite transmission and cable distribution, commercial rental, computer storage of protected works indatabase, digital storage and distribution of works via Internet) have led to the extension of collecting societiesto new areas.5.1.4. The term ‘collecting society’ is generally used to describe the organisations set up by the various categories ofrights owners to administer their rights collectively. The EU and UK definitions differ, but still amount to thesame thing. The EU definition reads “any organisation which manages or administers copyright or rights relatedto copyright as its sole purpose or as one of its main purposes”. In the UK, the term ‘licensing body’ is used todescribe a society or other organisation which has as its main purpose the negotiation or granting (either asowner or agent for the owner) of copyright licences, and whose objectives include the granting of licencescovering works of more than one author.5.1.5. In the UK and some EU member states, collecting societies or licensing bodies are private organisationsestablished and controlled by the rights owners themselves. However, in other countries, for the protection ofthe public, there is some kind of government supervision or control over the practices of these societies. The1988 Act of the UK provides a regulatory framework for the operation of the licensing bodies in certain areasand also provides for the Copyright Tribunal. In general, whether collecting societies are governmentsupervisedor privately owned, some degree of control by the government is imminent as is evident in a countrylike South Africa. Overall, collecting societies are established on six key principles:1) To do for members of collecting societies what they cannot practically and economically do for themselves,by providing a service to enable rights owners to enforce and administer certain of their copyrightseffectively and cheaply;2) To provide a service to users by facilitating access to copyright works and making it possible for users tocomply with their obligations under the copyright law;3) To guarantee users immediate access to the licensor’s repertoire;4) To keep administration costs incurred by users and owners as low as possible;5) To provide for the use of copyright of recordings that have yet to be made; and6) To meet the needs of owners and users whatever the scale of their business.5.1.6. The CRC is satisfied that the establishment of collecting societies is the best available mechanism for licensingcopyright works.- 39 -
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 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 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
Page 84 and 85: 10.10 CONTRACTUAL RELATIONSHIPS BET
Page 86 and 87: 10.12.2. The Regulations should rec
Page 88 and 89: licence that the licensee comply wi
Page 90 and 91: 11.4.6. The details of ICASA’s ta
Page 92 and 93: 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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