4 GOVERNMENT
No.
GAZEITE,
23555
Act No. 8.2002
25 JUNE 2002
PERFORMERS’PROTECTIONAMENDMENT
ACT, 2002
in a country which isa member of the World Trade Organization: Provided
that the right conferred on performers in section 5 ( l ) ( b )shall, in the case of
performances in the Republic, but emanating from a country which is a
member of the World Trade Organization, only be granted to them to the
extent that performances emanatingfrom theRepublic enjoy corresponding 5
protection in that country, and such performancesof foreign origin shall not
enjoy any wider protection in the Republic than is enjoyed in that country
by performances emanating from the Republic.”.
Substitution of section5 of Act 11 of 1967
3. The following section is hereby substituted for section 5 of the principal Act:
10
“Restrictions on use of performances
5. (1) Subject to theprovisions of this Act, no person shall(a) without the consent of the performer[(u)]@
broadcast or communicate to the public [a] anunfixed performance of such performer, unless the performance used in the 15
broadcast orthe
public communicationis
itself already a
broadcast performance [or is madefromafixationofthe
performance or from a reproductionof such a fixation];or
[(b)](ii) make a fixation of the unfixed performance of such performer; or
[(c)] (iii) make a reproduction of a fixation of a performance of such 20
performer[(i)] (aa) if the original fixation, other than a fixation excluded by
section 8 from the necessity for obtaining the consent
of the
or her consent; or
performer, was itself made without his [(ii)] (bb) if the reproduction is made for purposes other than those in 25
or her consent to
respect of which such performer gave
his the making of the original fixation or of a reproduction
thereof; or
[(iii)](cc) if the original fixation was made in accordance with the
provisions of section 8, and the reproduction is made for 30
purposes not covered by those provisions; g
(b) by means of a fixationof a performance published for commercial
purposes, without payment of a royalty to the performer concemed(i) broadcast the performance;
(ii) cause the performance to be transmitted in a diffusion service 35
defined in section 1 of the Copyright Act, 1978 (Act No. 98 of
1978),unless such service transmitsa lawful broadcast, including
the performance, and is operated by the original broadcaster; or
(iii) cause any communication of the performance to the public.
( 2 ) In the absence of an agreement to thecontrary, a performer’s consent 40
to the broadcasting of his or her performance shall be deemed to include his
or her consentto the rebroadcasting of his
performance, the fixation
of his & performance for broadcasting purposes, and the reproduction
for broadcasting purposes of such fixation.
(3) ( a )The amount of any royalty contemplated in subsection (1)(6) shall 45
be determined by an agreement between the performer and the person who
broadcasts or transmits, or causes communication of, the performance. as
the case may be, or between their representative collecting societies.
( b ) In the absence of an agreement contemplated in paragraph (a). any
party may refer thematter to the Copyright Tribunal established in terms of 50
section 29( 1) of the Copyright Act, 1978 (ActNo. 98 of 1978),or the parties
may agree to refer the matter for arbitration in terms of the Arbitration Act,
1965 (Act No. 42 of 1965).
(4) ( a ) A performer who has authorized the fixationofhis
or her
performance shall, in the absence of any agreement to the contrary, be 55
deemed to have granted to the person who arranges for suchfixation to be
made the exclusive right to receive the royalties contemplated in subsection ( l ) ( b )in respect of any broadcast, transmission or communication
of such fixed performance: Provided that the performer is entitled to
share in any payment received by the person who arranges for thefixation, 60