Page 32 - Q&A Book.indd

Copyright Amendment Bill: Unsound proposals
in relation to sound recordings

Veruska van Wyk
June 2017

“I am a musician and own a number of my sound recordings
which I have independently produced and manage. I’m
Commercial troubled by the latest Copyright Amendment Bill which now
seems to require me to join a collecting society if I want to
ensure that my sound recordings are played on air by radio
stations. Is my interpretation of the Bill correct?”

The latest revised Copyright Amendment Bill was published on 16 May
2017 (“Copyright Bill”). The Copyright Bill aims to address concerns raised
in respect of the previous draft Copyright Amendment Bill published in
2015. Although some concerns have been addressed, some remaining
issues still need to be ironed out, including the broadcasting of sound
recordings.

A ‘sound recording’ is defined in the Copyright Act 98 of 1978
(“Copyright Act”) as “any fixation or storage of sounds, or data or
signals representing sounds, capable of being reproduced…” A sound
recording must be distinguished from the underlying musical work,
which is independently the subject of copyright. A sound recording
may be captured and/or stored on record, tape, compact disk or
digital media.

Section 9A (the provisions dealing with royalties) of the Copyright
Bill proposes that a sound recording can only be broadcasted by
for e.g. a radio station, if the broadcaster obtained prior consent for
such broadcast. However, the Copyright Bill does not clearly stipulate
from whom such consent should be obtained, and lists a number of
options, which seem to also potentially include the copyright user
(broadcaster), creating a nonsensical loop. What is probably intended
is a requirement that permission should be obtained from the copyright
owner, in this case you, for the broadcasting of the sound recording.
Such an approach does not however take into account the practicalities
of daily broadcasting by radio stations, who often broadcast sound
recordings on a request basis. If in each event prior permission is
required for such broadcasting, the radio station would be unable
to play sound recordings for which they don’t have prior consent.
Taking it a step further, such a requirement would probably ‘force’ radio
stations to exclusively broadcast only sound recordings of collecting

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