During ongoing discussions about the MOI over the last few weeks, an important question has come up: why does the MOI refer to IP Rights instead of Copyright? To be specific, according to the MOI, each member assigns his or her “IP Rights” to SAMRO.
IP Rights are very specifically defined in the MOI as follows:
“(i)ncludes all applicable Performing Rights, Reproduction Rights, Needletime Rights, and similar rights under any IP Related Legislation in the Principal Territory or anywhere else in the world, subsisting now or in the future.”
Before we answer the question, let’s look at how the outgoing Articles of Association (i.e. the document that the new MOI will replace) described the assigned rights.
1. The old Articles of Association don’t speak of copyright either
In the old Articles, the rights to be assigned by each SAMRO member are listed separately as Performing Rights, Mechanical Rights and Film Synchronisation Rights. This “bundle” of assigned rights is not referred to collectively as Copyright.
2. Is using the term IP Rights not going too far?
It is important to understand that the term is very clearly defined in the MOI and does not refer to Intellectual Property (IP) in the broad sense of the term. In other words, SAMRO will not be getting involved in any of your other IP assets (e.g. trademarks, patents etc.) Importantly, Dr. Owen Dean, widely accepted as South Africa’s foremost authority on copyright law, confirmed the definition of IP Rights as it stands in the MOI and as such we are confident that not only is the definition sufficient, it also does not go beyond SAMRO’s traditional mandate.
3. Ok, if the term IP Rights doesn’t go much further than just Copyright… why not just use the term Copyright?
If one is to define the word Copyright strictly, it does not include Neighbouring or Related Rights, such as Needletime rights. This is because although closely linked to Copyright (which is the right enjoyed by a creator), Neighbouring/Related Rights are distinguishable from traditional Copyright. For example in the case of Needletime, the right belongs to a performer and not creator.
The use of the term IP Rights, strictly defined, allows for inclusion of Neighbouring Rights and removes the danger of SAMRO being deemed to be acting beyond its mandate by administering Needletime Rights.
(Of course, the question of whether or not we should even be administering, and thus making provision for, Needletime Rights is one we are very aware of, and will be addressing in our next pre-AGM letter to you. Watch this space!)
