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Performers’ Protection Amendment Act, 2002 (Act No. 8 of 2002)

 Performers’ Protection Act, 1967 (Act No. 11 of 1967, as amended by Performers’ Protection Amendment Act 2002)

Government Gazette

REPUBLIC OF SOUTH AFRICA

Vol. 444 Cape Town 25 June 2002 No. 23555

THE PRESIDENCY

No. 885 25 June 2002

It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–

No. 8 of 2002: Performers’ Protection Amendment Act, 2002.

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2 No. 23555

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GOVERNMENT GAZETTE, 25 JUNE 2002

Act No. 8, 2002 PERFORMERS’PROTECTIONAMENDMENT ACT, 2002

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicateomissionsfrom existing enactments.

Words underlined with a solid line indicate insertions in existing enactments.

(English text signed by the President.) (Assented to 18 June 2002.)

ACT To amend the Performers’ Protection Act,1967, so as to definea n expression and to amend a definition; and to make new provision for restrictions on the use of performances; and to provide for matters connected therewith.

E ITENACTED by theParliament of the Republic of South Africa, asB f 0 m S : - Amendment of section 1 of Act 11 of 1967, as amended by section 19 of Act 38 of 1997

1. Section 1 of the Performers’ Protection Act, 1967 (hereinafter referred to as the 5 principal Act), is hereby amended-

(a) by the insertion in subsection (1) after the definition of “broadcaster” of the

“ ‘collecting society’ means a collecting society established under the CopyrightAct,1978 (Act No. 98 of 1978);”; and 10

(b) by the substitution in subsection (1) for the definition of “literary and artistic

‘‘ ‘literary and artistic works’ [include] includes musical. dramatic and dramatico-musical works and expressions of folklore;”.

foilowing definition:

works” of the following definition:

Substitution of section 4 of Act 11 of 1967 15

2. The following section is hereby substituted for section 4 of the principal Act:

“Extension of protection of performers’ rights toperformances in certain countries

4. The protection granted to performers by this Act shall be extended automatically [toperformers] in respect of [their] performances- 20

(a) taking place; (6) broadcast without a fixation; or (c ) first fixed,

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4 No.23555GOVERNMENTGAZEITE, 25 JUNE 2002

Act No. 8.2002 PERFORMERS’PROTECTIONAMENDMENT ACT, 2002

in a country which isa member of the World Trade Organization: Provided that the right conferred on performers in section 5( l ) (b)shall, in the case of performances in the Republic, but emanating from a country which is a member of the World Trade Organization, only be granted to them to the extent that performances emanatingfrom theRepublic enjoy corresponding protection in that country, and such performancesof foreign origin shall not enjoy any wider protection in the Republic than is enjoyed in that country by performances emanating from the Republic.”.

Substitution of section5 of Act 11 of 1967

3. The following section is hereby substituted for section 5 of the principal Act:

“Restrictions on use of performances

5. (1) Subject to theprovisions of this Act, no person shall- (a) without the consent of the performer- [(u)]@ broadcast or communicate tothe public [a] anunfixed perfor-

mance of such performer, unless theperformance used in the broadcast orthe public communicationis itself already a broadcast performance [or is madefromafixationofthe performance or from a reproductionof such a fixation];or

[(b)](ii) make a fixation of the unfixed performance of such performer; or [(c)](iii) make a reproduction of a fixation of a performance of such

[(i)] (aa) if the original fixation, other than a fixation excluded by section 8 from the necessity for obtaining the consentof the performer, was itself made without his-or her consent; or

[(ii)](bb) if the reproduction is made for purposes other than those in respect of which such performer gavehis-or her consent to the making of the original fixation or of a reproduction thereof; or

[(iii)](cc) if the original fixation was made in accordance with the provisions of section 8, and the reproduction is made for purposes not covered by those provisions; g

(b) by means of a fixationof a performance published for commercial purposes, without payment of a royalty to the performer concemed- (i) broadcast the performance; (ii) causetheperformance to be transmitted in a diffusion service

defined in section 1 of the Copyright Act, 1978 (Act No. 98 of 1978),unless such service transmitsa lawful broadcast, including the performance, and is operated by the original broadcaster; or

(iii) cause any communication of the performance to the public. ( 2 )In the absence of an agreement to thecontrary, a performer’s consent

to the broadcasting of hisor her performance shall be deemed to include his or her consentto the rebroadcasting of his performance, the fixation of his&performance for broadcasting purposes, and the reproduction for broadcasting purposes of such fixation.

performer-

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(3)(a)The amount of any royalty contemplated in subsection (1)(6) shall 45 be determined by an agreement between the performer and the person who broadcasts or transmits, or causes communication of, the performance. as the case may be, or between their representative collecting societies.

(b)In the absence of an agreement contemplated in paragraph (a). any party may refer thematter to the Copyright Tribunal established in terms of 50 section 29(1)of the Copyright Act, 1978 (ActNo. 98 of 1978),or the parties may agree to refer the matter for arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).

(4) (a) A performer who has authorized the fixationofhis or her performance shall, in the absence of any agreementto the contrary, be 55 deemed to have granted to the person who arranges for suchfixation to be made the exclusive right to receive the royalties contemplated in sub- section ( l ) ( b )in respect of any broadcast, transmission or communication of such fixed performance: Provided that the performer is entitled to share in any payment received by the person who arranges for thefixation, 60

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Act No. 8,2002 PERFORMERS’PROTECTIONAMENDMENT ACT, 2002 ~~

in the manneragreeduponbetweentheperformerand the person who arrangesforsuchfixation, or betweentheirrepresentativecollecting societies.

(b) In theabsence ofan agreementcontemplated in the proviso to paragraph (a),any party contemplated in that proviso may refer the matter to the CopyrightTribunalestablished in terms of section29(1) of the Copyright Act, 1978 (ActNo. 98 of 1978),or the partiesmay agree to refer the matter for arbitrationin terms of the ArbitrationAct, 1965 (ActNo. 42 of 1965).

( 5 ) Any payment madein terms of subsection (4) shallbe deemed tohave discharged any obligation by the person who broadcasts or transmits or causes communicationof the performance topay a royalty to the ownerof any copyrightsubsisting in that fixation interms of section9A of the CopyrightAct, 1978 (ActNo. 98 of 1978).

(6) In the event of any right toa royalty being assignedto any successor in title, either by contractual arrangement, operationof law, testamentary disposition or otherwise, any successor in title shall be entitled to enforce such right to a royalty against the person who in terms of this section is obliged topay or against his or her successorin title.”.

Amendment of section8 of Act 11 of 1967, as amended by section22 of Act 38 of 1997

4. Section 8 of the principal Act ishereby amended by the substitution for subsection

“(3) (a)A broadcaster may make by means of his or her own facilities a fixation of aperformanceandreproductions of such fixation withoutthe consent requiredby section 5, provided that, unless otherwise stipulated,the

(3) of the following subsection:

fixation or any reproduction thereof- (i) [the fixation and the reproductions thereof are used solely in the]is

intended exclusively for broadcasts[madeby the broadcaster]to which

(ii)

[(iii)

the performer has consented; [thefixationandanyreproductionsthereof] if they are notof an exceptional documentary character, are destroyed before the endof the period of six months commencingon the day on which thefixation was first made [; and] or such longer period as may be agreed to by the performer. thebroadcasterpaystotheperformer,whoseperformanceis so used, in respect of each use of the fixation or of any reproduction thereof,anequitableremuneration,which,intheabsence of agreement, shall be determined in accordance with the provisionsof the Arbitration Act, 1965 (ActNo. 42 of 1965),or alternatively,at the option of the performer, by the Copyright Tribunal established by the Copyright Act, 1978 (ActNo. 98 of 1978).]

(b)The fixation and the reproductionsthereof made under the provisionsof thissubsection may, on the grounds of theirexceptionaldocumentary character, be preserved in the archives of the [Corporation] broadcaster but shall, subject to the provisions of this Act, not be further used without the consent of the performer.”.

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5. This Act is called the Performers’ Protection AmendmentAct, 2002.