Although most of us are aware of the fact that much of the audio we listen to is protected by copyright, do we really know what this entails? This article will focus mainly on how music, and more specifically sound recordings, is protected in the work place.
Copyright is regulated by the Copyright Act 98 of 1978 (“the Act”) which identifies the types of works eligible for copyright. These works include literary works, musical works and sound recordings, all three of which may be applicable when listening to most music. Sound recordings is defined as “any fixation or storage of sounds, or data or signals representing sounds, capable of being reproduced, but does not include a sound-track associated with a cinematograph film.”
Ownership of copyright, according to the Act, vests in the author of the work. Section 6, provides that the copyright in musical and literary work vests the exclusive right to, amongst others, perform it in public (or to authorise such performance) while section 9 vests the exclusive right to, also amongst others, communicate a sound recording to the public. In terms of section 23, one infringes copyright when, while not being the owner thereof and without the licence of such owner, doing or causing any other person to do any act which the owner has the exclusive rights to do or to authorise.
Performance, for purposes of the Act “includes any mode of visual or acoustic presentation of a work (music) including any such presentation by the operation of a loudspeaker, a radio, television or diffusion receiver… or by the use of a record or other means..”. Secondly, when considering the meaning of “public” for purposes of copyright law the court in SOUTHERN AFRICAN MUSIC RIGHTS ORGANISATION LTD v SVENMILL FABRICS (PTY) LTD 1983 (1) SA 608 (C) confirmed that one has to consider the relationship of the audience to the owner of the copyright and not the relationship of the audience to the performers. The difference, the court found, between performance in private and one in public is that, in private, the entertainment forms part of the domestic or home life of a person who provides it, while in public the entertainment forms part of the nondomestic or outside life of the audience. In the last mentioned case the court found that a company (factory), who provided music for the entertainment of its employees at work by relaying music from a radio station through extension speakers was conducting a performance in public, and without the required licence, was infringing on copyrighted works.
Infringements of copyright are not only actionable by the owner of the copyright but are also a statutory offence in terms of section 27 of the Act. According to the said section, a person convicted there under shall be liable, in the case of a first conviction, to a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years, or to both such fine and imprisonment, for each article to which the offence relates.
The Act provides that no person may communicate a sound recording to the public without the payment of royalty to the owner of the copyright. The amount of any such royalty shall be agreed upon between the user of the sound recording, the performer and the owner of the copyright, or between their representative collecting societies. An employer may therefore play music at its offices if the required royalties are paid. This is where Collecting Societies plays an important role.
Since June 2006 accredited collecting societies have been authorised to receive payment of the required royalties in terms of section 9A of the Act. The collecting societies must administer the rights of its members (copyright holders) as well as the proceeds of the exercise of such rights. Its aim is to administer public playing rights effectively and efficiently to maximise the economic exploitation of the rights entrusted by the right holders for their direct benefit (regulation 6). These societies must, in accordance with regulation 7, make its complete repertoire or records available for any potential user of public playing rights of which the rights are owned by the members represented by the society. Collecting societies may enter into a framework agreement or non-exclusive licence agreements with users of public playing rights which shall contain such terms and conditions as are necessary to enable the collecting society to comply with its obligations under the Act.
As part of the framework or non-exclusive licence agreement the collecting society may negotiate a tariff with the users that determine the amount and manner of payment of the royalties in respect of a particular use. Should the tariff proposed by the collection society not be accepted by the users, the users may pay the required tariff into an escrow account pending a referral of the dispute pertaining to the tariff to the Copyright Tribunal. The collecting society may also, pending such referral to the Copyright Tribunal, apply to the Copyright Tribunal for a ruling that any potential user make payments to an escrow account of the amount demanded by the collecting society pending the final decision of the Tribunal.
Prior to playing music in a public environment, whether it is at the office, factory or workshop, one must apply for the required licence. Failure to do so might lead to legal consequences. If uncertainty remain as to whether a licence is required or where and how to apply for one, it is advisable to contact an attorney for guidance.
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Andries Stander is a director at Barnard Incorporated Attorneys in Centurion.