No. 37148
GOVERNMENT GAZETTE, 10 December 2013
Act No. 28 of 2013
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Intellectual Property Laws Amendment Act, 2013
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(4) Any person who intends to acquire rights pertaining to doing any of
the acts referred to in section 28E in respect of an indigenous work after the
commencement of the Intellectual Property Laws Amendment Act, 2013,
must comply with section 28B(4).
(5) If any commercial benefit is derived from acts contemplated in
subsections (2) or (4) the person who derived such benefit shall pay a
royalty, or a benefit, or both such royalty and benefit, to the author as set out
in section 28H(3).
(6) Any person deriving commercial benefit from the use of a traditional
work, the value of which is less than the prescribed value shall be excluded
from the requirements of sections 28B(4), 28C and 28H.
(7) A traditional work may be used without obtaining prior consent of the
copyright owner, if it is for the purpose of—
(a) private study or private use;
(b) professional criticism or review;
(c) reporting on current events;
(d) education;
(e) scientific research;
(f) legal proceedings; or
(g) the making of recordings and other reproductions of indigenous
cultural expressions or knowledge for purposes of their inclusion in an
archive, inventory, dissemination for non-commercial cultural heritage safeguarding purposes and incidental uses:
Provided that only such excerpts or portions as is reasonably required are
used and that the copyright owner’s name is acknowledged.
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Royalties and benefits
28H. (1) The content of sections 6, 7, 8 and 9 shall with the necessary
changes required by the context, apply to traditional works, in so far as they
can be applied to the specific traditional work.
(2) In the absence of an agreement to the contrary, no person may—
(a) broadcast, cause the transmission of or play a sound recording as
contemplated in section 9(c), (d) or (e); or
(b) show, broadcast or cause the transmission of a cinematograph film
recording a traditional work, or include a traditional work in a
cinematograph film or a television broadcast as contemplated in
section 28E(1),
without payment of a royalty, a benefit, or both such royalty and benefit, to
the owner of the relevant copyright.
(3) The amount of any royalty, benefit, or both such royalty and benefit
due for the use of traditional work shall be determined by —
(a) an agreement between the user of the traditional work and the owner
of the copyright in such work, or between their representative
collecting societies; or
(b) in the absence of an agreement as contemplated in subsection (a) being
reached, the amount or value of the royalty, benefit, or both such
royalty and benefit, shall be determined by—
(i) an institution accredited by the Commission as contemplated
in section 28K(1);
(ii) the Copyright Tribunal referred to in section 29(1); or
(iii) arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of
1965):
Provided that if the persons referred to in paragraph (a) cannot agree on
which referral to follow in terms of this subsection within a reasonable
period, any of the persons may refer these disputes for resolution in terms
of section 28K.
(4) Agreements concluded in terms of sections 28G(3), 28G(4) and
subsection (3)(a) must be submitted to the Council, who shall—
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