Since the advent of democracy the government has attempted to find solutions to the problems plaguing the music industry.
To this end the then Minister of Arts, Culture, Science and Technology, DR Ben Ngubane, appointed a Music Industry Task Team (MITT) to investigate problems pertaining to the music industry.
The MITT was tasked, among other things, with examining the inadequacy of the legislative framework governing the industry and to make recommendations concerning this.
After holding public hearings across the country, the MITT compiled a report and made a number of recommendations. One of the recommendations was for the amendment of copyright legislation to allow for the introduction of what is termed “needletime rights” (rights relating to the playing of recorded music).
This led to the amendment of the Copyright Act and the Performers Protection Act of 2002 to secure the right of recording artists and record companies to be paid when their recorded music is used or performed in public.
The legislation was amended on the understanding that the needletime rights royalty would be split equally between the record company that produced the recording and the musicians featured in the recording.
In addition, Regulations on the establishment of Collecting Societies in the Music Industry (the Regulations) came into effect on 1 June 2006. The regulations state that any licencing body acting as a collecting society for needletime rights needs to be accredited by the Companies and Intellectual Property Registration Office (Cipro).
The South African Music Performance Rights Association (SAMPRA) was accredited to administer these rights on behalf of recording artists. This means that, in respect of sound recordings that it controls, SAMPRA will administer 50% of the needletime royalties, while SAMRO will administer the 50% recording artists share for its members (the recording artists or musicians) who performed in such sound recordings.
SAMRO established the Performers Organisation of South Africa Trust (POSA) to ensure the efficient administration of needletime rights and to distinguish this administration from SAMRO’s historical administration of musical works (on behalf of authors, composers and publishers).
In terms of the legislation and the regulations, SAMPRA, as the society representing record companies, has the exclusive right to licence and to collect money from music users.
The general understanding is that SAMPRA also has the obligation to pass over the recording artist’s share to SAMRO or POSA for distribution to those recording artists represented by these organisations.
The law appears, however, to be vague and ambiguous on this issue and this lack of clarity has led to different interpretations of the law by different organisations.
SAMPRA interprets the law as saying that it has to pay over the recording artists’ share of royalties to record companies, and not to SAMRO or POSA. SAMPRA insists that record companies can decide on a different split and that they also have the right to deduct expenses, including advances, from the artists’ share of the Needletime rights royalties.
SAMRO, POSA, and CIPRO argue that SAMPRA should only distribute their 50% share to record companies and that these companies do not have the right to deduct anything, including advances from the recording artists’ share. SAMRO, POSA, and CIPRO insist that the share belonging to recording artists represented by SAMRO and POSA will in turn distribute the royalties to the relevant recording artists.
This impasse has led to CIPRO refusing to approve the SAMPRA distribution plan because approving this in its current form would lead to a situation where CIPRO would not have control over how the royalties meant for recording artists are handled by record companies.
This is because accredited needletime rights societies are required to account to CIPRO regarding their handling of received royalties, as part of the accreditation conditions. CIPRO wants SAMPRA to change its distribution plan and policy to state that 50% of the royalties collected by it will be paid over to SAMRO or POSA because it represents the musicians, and not the record companies.
CIPRO threatened to withdraw SAMPRA’s accreditation in January 2010, if it did not comply with the CIPRO requirements. SAMPRA responded by taking CIPRO and the Minister of Trade and Industry to court.
While the POSA Board of Trustees respect the different positions adopted by the different parties on this issue, and while we acknowledge that the ambiguous and vague legislation is the root cause of the impasse, we wish to bring it to SAMPRA and CIPRO’s attention that the non-distribution of needletime rights royalties is a violation of recording artists’ rights.
It is unjust that Needletime rights royalties cannot be distributed due to legal wrangling that can be resolved out of court through negotiations and the amendment of the legislation.
POSA urges all the parties involved to find a speedy and amicable solution to the impasse so as to allow for the distribution of needletime rights royalties to recording artists.
In our view, this has become a human rights issue. The income of hardworking and long-suffering recording artists is now compromised by and ambiguous and vague piece of legislation that does not seem concerned with the welfare of those it seeks to benefit.
While the wrangling continues, it is the hard-working recording artist, the driver of the music industry who suffers. It is therefore necessary to protect and promote the interests and rights of recording artists. The speedy resolution of the impasse on the royalties presents one such opportunity.
