No. 37148 GOVERNMENT GAZETTE, 10 December 2013 Act No. 28 of 2013 22 Intellectual Property Laws Amendment Act, 2013 22 (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. 5 10 15 20 25 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— 30 35 40 45 50 55