On 25 June 2002, the Copyright Act and the Performers’ Protection Act were amended to introduce needle-time rights. The term “needle-time rights” refers to the right of an owner of a sound recording (embodying a musical work) and the performer of the musical work, to receive a royalty in respect of the broadcast, or performance, of that sound recording.

“In the music industry, the parties entitled to payment of needle-time royalties, are the owners of the copyright in the sound recordings (usually the recording company) and the performing artists. It is important to note that, prior to the amendment of the Copyright Act and Performers’ Protection Act, performers enjoyed no copyright protection in respect of musical works. In other words, copyright protection in respect of musical works was limited to composers and authors,” says Mariette du Plessis, senior partner, Trademark litigation at Adams & Adams.

“The amount of needle-time royalties to be paid by the user of a sound recording was not specified in the respective Acts and had to be determined by an agreement between the user of the sound recording, the performer and the owner of the copyright, or between their respective collecting societies. This made the process incredibly intricate.”

Says Jani Cronje, senior associate, Trade Marl Litigation – “ As it was impossible for the relevant parties to agree to an applicable royalty, it was necessary for the matter to be referred to the Copyright Tribunal.”

With respect to the referral to the Copyright Tribunal, SAMPRA represented the owners of the copyright in sound recordings embodying performances of musical works. SAMRO represented the performers of the musical works who are entitled to share in the royalties collected by SAMPRA. The NAB represented the 32 broadcasters who have been called upon by SAMPRA to pay needle-time royalties to the owners of the copyright in the applicable sound recordings and the performers of the musical works.

The Copyright Tribunal convened on 21 November 2011 for two weeks to hear evidence submitted by the respective parties as to the formula which had to be used to calculate the amount of royalties payable by the NAB. As the matter could not be finalised at that stage, the hearing continued for two days on 23 February 2012. The Commissioner of the Copyright Tribunal reserved his decision at that stage.

“We have, however,” says du Plessis, “just been notified that the Commissioner of the Copyright Tribunal will be handing down his decision on Wednesday, 30 May 2012.

“Considering the impact that the outcome of this referral will have on the livelihood of musicians and the liability of broadcasters, it is with great anticipation that we await the ruling,” concludes du Plessis.

Contact:
Megan Larter, Crayon Public Relations – lartermegan@yahoo.com
Adams & Adams – Mariette du Plessis – 012 432 6000