POSA presents petition to the Minister of Trade & Industry
13/06/2011

On 6 June 2011, the Board of the Performers Organisation of South Africa Trust (POSA) presented a petition to the office of the Minister of Trade and Industry, requesting an amendment to legislation which will allow unpaid needltime royalties to be paid out to recording artists and record companies.

POSA is a trust which was formed by the South African Music Rights Organisation (SAMRO) to facilitate the administration of needletime royalties on behalf of its members. SAMRO is the largest organisation in Africa involved in the collective management of copyright in musical works and administers a variety of rights on behalf of its members, including mechanical rights, performing rights and needletime rights. SAMRO’s members include performers, authors, composers etc.

Needletime royalties are royalties (remuneration) which are due to a performer, as well as the owner of the copyright in a sound recording, as a result of the public performance of the sound recording. This happens, for instance when the sound recording is broadcast by a radio station.

POSA’s petition for an amendment of the relevant legislation has stemmed from, essentially, a severe delay in the payment of needletime royalties to performers and record companies as a result of different interpretations of the relevant legislation by the major role players.

POSA’s petition seemingly seeks to resolve the issue of unpaid needletime royalties by requesting the Legislature to address the alleged ambiguities and/or discrepancies in the legislation.

The relevant legal provisions with regard to needletime royalties, are Section 9(A) of the Copyright Act, Section 5 of the Performers Protection Act and the Establishment of Collecting Societies in the Music Industry Regulations (“Collecting Society Regulations”).

The provision for needletime royalties was re-introduced in South African law by an amendment of the Copyright Act in 2002. The Collecting Society Regulations which were intended to give effect to the provisions of the Act were promulgated in 2006.

Since then, the collection and distribution of needletime royalties have been the subject of litigation between SAMRO, CIPRO and SAMPRA (the South African Music Performance Rights Association). SAMPRA is another collective licensing society in South Africa which represents, essentially, the recording industry of this country. It collects and distributes royalties to the members of the Recording Industry of South Africa (RiSA).

The reason for the protracted litigation boils down to different interpretations of the abovementioned legislation by the parties involved. The effect of the litigation has been that no needletime royalties have been paid out to performers or record companies since the amendment of the Copyright Act in 2002. The amount of outstanding royalties is therefore immense and keeps building as time ticks by. According to POSA, the needletime royalties due to the interested parties at this time is about R100 million.

Without going into the detail of all the rights and royalties which flow from a musical work and/or a sound recording, it will suffice to say that none of the “conventional” royalties went into the pockets of performers of songs. Needletime royalties were therefore intended to, and should have resulted in, the ability of musicians to make a living from their music. However, despite this, nearly ten years after the amendment of the Copyright Act, performers are still empty-handed.

Seeing that this issue affects every recording musician (and recording company) in this country, it will be interesting to see what the Department of Trade and Industry’s response will be to POSA’s petition.