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Calculating performers' royalties - formula out this week
The Copyright Tribunal convened on 21 November 2011 to hear evidence submitted as to the formula to be used to calculate the amount of royalties payable by the NAB to the owners of the copyright in the applicable sound recordings, and the performers of the musical works. Following a further two-day hearing in February 2012, the Commissioner of the Copyright Tribunal was to hand down his decision yesterday, Wednesday 30 May 2012.
The parties involved are SAMPRA, representing the owners of the copyright in sound recordings embodying performances of musical works and SAMRO, representing the performers of the musical works who are entitled to share in the royalties collected by SAMPRA. The NAB represented the 32 broadcasters who have been called upon by SAMPRA to pay needle-time royalties.
Needle-time rights
On 25 June 2002, the Copyright Act and the Performers' Protection Act were amended to introduce needle-time rights. The term 'needle-time rights' refers to the right of an owner of a sound recording (embodying a musical work) and the performer of the musical work, to receive a royalty in respect of the broadcast, or performance, of that sound recording.
"In the music industry, the parties entitled to payment of needle-time royalties, are the owners of the copyright in the sound recordings (usually the recording company) and the performing artists. It is important to note that, prior to the amendment of the Copyright Act and Performers' Protection Act, performers enjoyed no copyright protection in respect of musical works. In other words, copyright protection in respect of musical works was limited to composers and authors," explains Mariette du Plessis, senior partner, trademark litigation at Adams & Adams.
Waiting with anticipation
"The amount of needle-time royalties to be paid by the user of a sound recording was not specified in the respective Acts and had to be determined by an agreement between the user of the sound recording, the performer and the owner of the copyright, or between their respective collecting societies. This made the process incredibly intricate," says Du Plessis.
Jani Cronje, senior associate, trademark litigation adds, "As it was impossible for the relevant parties to agree to an applicable royalty, it was necessary for the matter to be referred to the Copyright Tribunal."
"Considering the impact that the outcome of this referral will have on the livelihood of musicians and the liability of broadcasters, it is with anticipation that we await the ruling," concludes Du Plessis.
