"Shaky and ill-prepared": public performance law in South Africa

Public performance of Punch and Judy?
No: it's just lawyers coming to blows
as to what "public performance" means

Earlier this month, in "Two may be company, but can one be a crowd?", here, the 1709 Blog hosted a letter from an anxious reader, writing on behalf of a friend, about what constitutes "public" for the purposes of performance in public.  The post was popular, attracting 14 comments. It has also drawn this substantial piece from South African copyright live-wire Graeme Gilfillan (Nisa Global Entertainment), who writes:

A cursory review of the meaning applied used/provided/defined for “public performance” in the South African Copyright Act 98 of 1978 as amended (“the Act”), at the South African Music Performance Rights Association (SAMPRA) website and Southern African Music Rights Organization (SAMRO) website, confirms that the concept and definition applied to the “public performance” is shaky and ill-prepared for a dispute or legal challenge. Indeed it would appear that there is no case law precedent on this in South African law history (I stand to be corrected on this), and a dispute concerning “public performance” in South Africa would have very specific consequence on musical and literary works, rather than sound recordings and films.

A detailed search of the South African Copyright Act 98 of 1978 (“the Act”) yielded the following results:

a.       The word ‘public’ is not defined in the Definitions section (or anywhere else) in the Act, though the word ‘public’ is used in the following contexts in the Act:

a.       Of, to and by the public

b.      A public delivery

c.       A public place

d.      Performing in public

e.      Place of public entertainment

b.       The phrase “performing the work in public” appears once in the Act, in Ch 1 Sec 6 (c);

c.       In the Act provides in Ch 1 Sec 9 (e) for “communicating the sound recording to the public” and the entire Section 9 makes no reference to ‘perform or performance’. The word “communicating’ appears nowhere else in the Act, and neither it nor ‘communicate’ are defined in the Act.

d.      The phrase “public performance” does not appear in the Act.

e.      The word “performance” is defined in the Definitions (xxxii) of the Act as follows:

““performance” includes any mode of visual or acoustic presentation of a work, including any such presentation by the operation of a loudspeaker, a radio, television or diffusion receiver or by the exhibition of a cinematograph film or by the use of a record or by any other means, and in relation to lectures, speeches and sermons, includes delivery thereof; and references to “perform” in relation to a work shall be construed accordingly: Provided that performance” shall not include broadcasting or rebroadcasting or transmitting a work in a diffusion service”

f.         The word ‘perform’ is not defined in the Act

g.       In terms of the nature of works eligible for copyright, the Act makes reference to ‘perform’ or ‘performing’ or ‘performance’ only in

a.       Sec 6 (musical and literary works),

b.      Sec 9 A(royalties i.r.o. sound recordings)

c.       Sec 11 B (computer programs)

No other works eligible for copyright include, or make reference to, the words ‘perform’ or ‘performing’ or ‘performance’

At the local performance rights (in musical and literary works) collection society SAMRO’S website, the 1709 Blog reader’s friend would be advised, inter alia the following:

“According to copyright law not only the person performing music in public is liable, but also the proprietor of the premises who permits their permises to be used for such performance in public.”

“Please be aware that a licence issued by the SABC does not entitle the holder to give a performance in public of SAMRO’s copyright music included in broadcast programmes. The agreement between SAMRO and the SABC for the broadcasting of copyright music covers only the reception of such music within the domestic circle. Where broadcast music is rendered audible in public, a separate licence from SAMRO is necessary”. 

“As a user of copyright music it is a requirement under the South African Copyright Act that you pay for the music that is broadcast, performed or “diffused” by your establishment. SAMRO’s Licensing Department is a hugely important aspect of the society, designed to ensure that music users in South Africa, of whatever size, are properly licensed for the performance of copyright music”  

“Music users are broken down into different groups: 

·         Essential users (which are entities like broadcasters, promoters and others);
·         Necessary users (like piano bars, discotheques, nightclubs, etc);
·         background users (like restaurants, retail estabishments and hotels);
·         Incidental users (like cafes,and hair salons). 

Remember that the licence issued by SAMRO is a blanket one authorising the broadcast, performance or “diffusion” of any of the million musical works that SAMRO controls on behalf of both our own members and those of its affiliated societies worldwide. The licence is usually in a form of a contract, which runs from year to year and due to the many ways in which musical works are performed, the fees payable under SAMRO’s licence can vary. There are around 46 different tariffs established to ensure we cater for all different types of music users. (see tariffs in this section).”

At the local collection society for owners of sound recordings SAMPRA’s website, the 1709 Blog reader's friend would be advised inter alia the following:

“Is there any legal requirement to pay SAMPRA licence fees?  

The Copyright Act imposes an obligation on those who wish to broadcast, communicate to the public or diffuse copyright sound recordings, to pay a licence fee to the relevant copyright holder(s). SAMPRA is authorized by the members of RiSA to grant licences to and collect licence fees from users of their copyright sound recordings. If you do not obtain a licence from SAMPRA, you will be infringing these copyrightholders' rights when you broadcast, diffuse or communicate to the public, any of their sound recordings” 

“What does "communicating to the public" mean?  

Communicating to the public is the playing of a sound recording in public (i.e. a non-domestic environment). Just because music is rendered audible for free, the audience is small, there is no admission fee, or the communication to the public is confined to members of a club, or a limited area, it does not mean that it is not a communication to the public. Music rendered audible at an event such as e.g. an office party or a year-end function constitutes a communication to the public. People often reason that "If it is my CD, why can't I play it whenever and wherever I want?" Ownership of the physical CD or Cassette does not confer any rights in the copyright material contained in the sound carrier onto the purchaser or holder in good faith, other than the right to be a licensed user of the copyright material contained on the sound carrier for personal use only” 

“Under section 9 of the Copyright Act 1978 ("the Act"), the copyright in relation to a sound recording is the exclusive right to do all or authorize any of the following acts, amongst others:·         Broadcasting the sound recording
·         Causing the sound recording to be transmitted in a diffusion service, unless the service transmits a lawful broadcast, including the sound recording, and is operated b the original broadcaster
·         Communicating the sound recording to the public".

Crystal clear?  We hope so!