Copyright Amendment Bill: Unsound proposals in relation to sound recordings

“I am a musician and own a number of my sound recordings which I have independently produced and manage. I’m troubled by the latest Copyright Amendment Bill which now seems to require me to join a collecting society if I want to ensure that my sound recordings are played on air by radio stations. Is my interpretation of the Bill correct?”

The latest revised Copyright Amendment Bill was published on 16 May 2017 (“Copyright Bill”). The Copyright Bill aims to address concerns raised in respect of the previous draft Copyright Amendment Bill published in 2015. Although some concerns have been addressed, some remaining issues still need to be ironed out, including the broadcasting of sound recordings.

A ‘sound recording’ is defined in the Copyright Act 98 of 1978 (“Copyright Act”) as “any fixation or storage of sounds, or data or signals representing sounds, capable of being reproduced…” A sound recording must be distinguished from the underlying musical work, which is independently the subject of copyright. A sound recording may be captured and/or stored on record, tape, compact disk or digital media. 

Section 9A (the provisions dealing with royalties) of the Copyright Bill proposes that a sound recording can only be broadcasted by for example a radio station, if the broadcaster obtained prior consent for such broadcast. However, the Copyright Bill does not clearly stipulate from whom such consent should be obtained, and lists a number of options, which seem to also potentially include the copyright user (broadcaster), creating a nonsensical loop. What is probably intended is a requirement that permission should be obtained from the copyright owner, in this case you, for the broadcasting of the sound recording. 

Such an approach does not however take into account the practicalities of daily broadcasting by radio stations, who often broadcast sound recordings on a request basis. If in each event prior permission is required for such broadcasting, the radio station would be unable to play sound recordings for which they don’t have prior consent. Taking it a step further, such a requirement would probably ‘force’ radio stations to exclusively broadcast only sound recordings of collecting societies with whom they have prior agreements in place regarding broadcasting of sound recordings which meet the requirements of the Copyright Bill. Although stations invariably already make extensive use of collecting societies which amongst others manage matters relating to rights in copyright works and negotiates, collects and distributes royalties and benefits on behalf of its members and copyright owners, the proposed amendments would effectively slam the door on independent managers or copyright owners not belonging to such collecting societies, as a radio station would not want to run the risk of a claim or dispute over copyright infringement for playing a sound recording for which it does not have prior consent. 

The Copyright Bill also leaves room for interpretation as to how and to whom the royalty payments for the broadcasting of sound recordings must be distributed. Again, it seems to drive the broadcaster into the arms of the collecting society with which clear royalties and fees have been established rather than run the risk of having to identify and approach the various parties indicated in the Copyright Bill regarding consent.

Although the Copyright Bill does not force anyone to join a collecting society, you are correct in that it does by implication create more hurdles for a broadcaster to work with independent managers or copyright owners and could therefore impact on radio stations playing your music. 

The Copyright Bill has not been finally promulgated and one can only hope that the Legislature will look carefully at some of the provisions that still raises concern. In the interim we would advise you to monitor the situation and acquaint yourself with the procedures for how a broadcaster must notify and obtain consent from a copyright owner.

July 14, 2017

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