Copyright Act, 1978 (Act No. 98 of 1978)RegulationsCollecting Society Regulations, 2006Chapter 2 : Obligations of collecting societies7. Licensing |
| (1) | A collecting society shall make available, on non-discriminatory terms, for any potential user of public playing rights the complete repertoire of records in respect of which the public playing rights are owned by the South African and foreign rightholders that it represented by it. |
| (2) | A collecting society may enter into framework agreements with representative trade association and user groups concerning the use of the repertoire by potential users affiliated to them. Based on any framework agreement, or in the absence of a framework agreement by way of negotiation, the collecting society may enter into non-exclusive licence agreements with individual users or user groups. Framework agreements and individual non-exclusive licence agreements shall contain such terms and conditions as are necessary to enable the collecting society to comply with its obligations under the Copyright Act, 1978, Performers' Protection Act, 1967, and these Regulations, |
| (3) | As part of a framework agreement or a non-exclusive licence agreement, the collecting society may negotiate with trade associations and representative bodies of potential users or user groups, or with individual users, a tariff that determines the amount and the manner of payment of the royalties in respect of the use in question, as well as the conditions of use and the information to be furnished to the collecting society to enable the proper distribution of any payments received. |
| (4) | A tariff accepted by the collecting society and the trade association in question, or by the representative bodies or user groups, as the case may be, may jointly be submitted to the Registrar for approval and publication in the Government Gazette and South African Intellectual Property Law Journal for notification. Any potential user falling within the scope of the tariff as published and complying with its terms shall be granted a licence by the collecting society upon assuming the obligation of the payment of the royalties established under the tariff. Should a dispute regarding the applicability of a tariff concerning an individual user or user group arise, application may be made for appropriate relief to the Copyright Tribunal in terms of sections 31 to 33 of the Copyright Act, 1978. |
| (5) | Should a tariff proposed by the collecting society not be accepted by the trade associations and representative bodies or the potential users, user groups, or individual users, such potential users and user groups shall have the option to pay the amount demanded by the collecting society into an escrow account, pending the outcome of a referral to the Copyright Tribunal or, if the parties so agree, pending the outcome of a referral for arbitration under the Arbitration Act, Act no. 42 of 1965, as amended. Any potential user or user group in respect of which a deposit is being made and who furnishes the required information to the collecting society to allow for the later distribution of the funds placed in escrow, shall provisionally be allowed by the collecting society to engage in the use that is subject to the payment of a royalty as provided for in section 9A of the Copyright Act, 1978, and Section 5(1)(b) of the Performers' Protection Act, 1967. |
| (6) | The collecting society may, pending any referral to the Copyright Tribunal or, if the parties so agree, pending any arbitration proceedings, apply to the Copyright Tribunal or the designated body in accordance with the provisions of the Arbitration Act, for a ruling requiring any potential user or user group to make payments to an escrow account of the amount demanded by the collecting society and to furnish information that will permit the later distribution of the funds to be placed in such escrow account once the Copyright Tribunal or the designated arbitration body has rendered its final decision or award in the matter before it. |