A webinar exploring online rights, royalties and obligations was recently hosted by the National Arts Festival, with an expert panel delving into the legal issues of putting content online.

If you missed it, you can view a recording here.

The panel, facilitated by NAF Executive Producer Nobesuthu Rayi, comprised:

• Elroy Bell – Supervisor: Theatricals, Visual Arts and General Licensing at DALRO
• Chola Makgamathe – General Manager: Legal Services, SAMRO
• Nothando Migogo – Copyright, Licensing and Royalties Specialist: Sosela Africa
• Jade Bowers – UJ Arts & Culture, Jade Bowers Design & Management – producer, director and designer

Your questions answered

During the session, attendees were invited to submit questions. While we are able to answer some of them directly, we could not get to all of them. So here’s a full list of all the questions that were asked, with answers that we hope you find helpful.

• Stuart Palmer

In place of doing our usual educational theatre in schools we at Lunchbox Theatre have produced 10 short Covid 19 informative videos that we have released on Facebook and YouTube. They have been viewed over 100 000 times online. I am happy for the videos to be shared and encourage it, but I would like to know how we can ‘secure’ these so that others cannot abuse them by claiming them as their own, using excerpts or falsely capitalising on them. 

Posting work on a social media platform, means that you agree to abide by their terms of use – and people need to be aware of what they are getting into when they upload onto these types of channels. While historic evidence of a chain of ownership may be able to be used in the case of claims against illegal usage, this would be difficult and costly to effect. It is best to use a protected platform or your own platform.

• Emma Durden

Does putting this work on public platforms in any way negate the copyright of the work? Are there ways to “watermark” these videos so that people can’t cut clips without acknowledging the makers? 

Yes – there are ways to watermark both images and video clips which will inhibit widespread unauthorised ‘scraping’ or usage of work.  However, licensing organisations rather encourage the use of protected platforms which will allow for the monetisation of viewings online and will prevent unauthorised downloading, copying and other usage. The platform being used for vNAF 2020 is a protected platform – all work presented on the vNAF platform will be for a contractually defined period of time through an encrypted streaming server.

• Lungisani Mavundla 

We work on mentoring with emerging writers and (reciting) poets. Which of these organisations is relevant in protecting their work as some of their work is on Youtube and thus at risk for unauthorised usage.

DALRO would be the relevant organisation to contact regarding this – www.dalro.co.za. Work must be registered or notified with DALRO (or music with SAMRO) in order that they can collect royalties on your behalf. If you don’t register work, these organisations can’t collect royalties on behalf of artists.

• Jessica Denyschen 

What are the terms of the contract with NAF for the festival in terms of copyright? Is it the same for all disciplines?

The NAF contracts are being updated to be relevant for the virtual domain and we are still ensuring that we have all the copyright and royalty details correct and up-to-date of the Virtual NAF. That said, essentially, for work curated by NAF we require that the performance rights are acquired by the artist or presenting company. NAF covers the SAMRO licensing fees.

• Andile Qongqo 

Do web-based platforms subscribe to copyright rules like physical venues? Are our music royalty collecting societies equipped to collect from platforms like Facebook, YouTube, Twitter?

Yes, they are equipped to collect from these platforms. Web-based platforms should subscribe to copyright rules in the same way as physical venues and should obtain licences from the relevant organisation.

Please explain how web platforms work with regard to mechanical rights and sync fees for an artist performing recorded music via a streaming platform, both original music and cover versions. Apparently percentages being charged are high and not really negotiable and, I am told that when there is a sponsor, whose logo appears on screen during the performance these fees are even more prohibitive. 

There are various digital model licences that organisations can issue, depending on the type of digital service provider (DSP) and the agreement negotiated between the DSP and the licensing organisation. The DSPs are required to provide usage information to licencing organisations on which royalties will be calculated. The calculation and distribution of royalties to artists will be dependent on the type of agreement reached – i.e. it may be per view / a percentage / a flat fee etc. As each platform has a different agreement, it is best to make sure you understand and are aware of the T&Cs of the platform before uploading work or live-streaming from it. If you require assistance, please contact the relevant licensing body.  NB: Licensing organisations can only collect and distribute royalties for work that has been registered with them or members (see query from Lungisana Mavundla above).

• Anonymous

Theatre plays that have been recorded for publicity reasons have been flagged to be uploaded on YouTube and/or other sites (and online arts-festivals). As a writer, you are paid as per the contract for the original run. The contract allowed for the recording. The recordings are owned by the production companies. How lawful is the uploading of these recordings and what are the producers’ rights vs. the creators’ rights if the broadcasting of the recording was never implicitly mentioned in the contract, other than for publicity purposes?

The production company only has the right to use the work for the intention described in the contract (i.e. the original stage production). Recording of the work for publicity purposes does not convey licensing for broadcast or digital purposes – the company would require an adaptor / enabling licence to screen the recording. See also answer to Steven Stead query below.

• Julian Hails

We have our own compositions to perform but also songs of other artists….do we need permission to perform such songs?

If the songs are yours – you do not need a licence for them unless:

• • They are co-written by yourself and others, in this case you may need permission from all the writers. 

• • If a contract has been signed for licensing of any music, you need to make sure that the rights to the composition or song still belong to you.

For songs or compositions that belong to others, you will need a licence to perform these songs. Contact SAMRO – www.samro.org.za

• Anonymous

If our recordings are played on radio stations in South Africa should we be paid royalties?

This will depend on the agreement you have entered into with the radio station and/or whether the work has been registered with a licensing organisation. Contact SAMRO or CAPASSO for more info.

• Lakin Morgan-Baatjies / Jay Sikhakhane

What is the turn-around time for getting licences and rights? What does this mean for us in 50 days’ time (i.e. before vNAF starts)? 

Each case will differ based on complexity – it is best to make enquiries as soon as possible. DALRO undertakes to respond to initial enquiries within a maximum of 48-hours.

• Thandi Ntuli 

Does SAMRO have an online document we can access that gives a guideline as to what to expect in terms of usage royalty calculations in the digital space?

The calculations vary depending on the type or platform and licence that they have been granted. It is best to make enquiries directly with SAMRO – call 086 117 2676

• Steven Stead

If the NAF is totally online this year, does this mean that any works ‘performed’ that are not original creations will need to get performance rights AND enabling rights? And what happens to a recorded production after the festival? How is the integrity of the production protected?

In this case, non-original work would be adapted for presentation on an alternative platform. An adaptation right is an enabling right. It is important for anyone wishing to adapt work for any kind of presentation, whether on stage or online, to seek permission before commencing with the adaptation. The adaptation right gives the adapter the legal authority to change, translate or adapt the work as per the terms and condition outlined in the adapter agreement between the rights holder and the adapter.

• Kirstin Moffatt 

Chola mentioned that in order to be a member you have to have one work. I was once informed that this work needs to be somewhat active on broadcast / live, is this true? 

SAMRO protects the rights of people involved in the creation of musical works. This includes composers, authors, lyricists and music publishers. As long as your musical works are active – which means they have been commercially recorded or performed in public, or broadcast on television or radio, you may qualify for SAMRO membership. Forms are available on the SAMRO website – www.samro.org.za.

• Steven Sack

Are our current IP legislation, and  Collection Agencies  adequate to the task of managing the expanded market and legal particularities of online content?

From a legal framework, the legislation has lagged behind a bit in South Africa, hence the Copyright Amendment Bill currently in process. But the organisations have gone ahead of the legislation and even though we don’t yet have the enabling legislation for online licensing, South Africa has been licensing digital service providers – and we have obtained favourable agreements.  So, from a practical point of view SA is pretty on top of things and despite the legislative lag, the industry has remained robust enough to keep pace with the developments in this area.

• Jackie Rens

When people use songs on YouTube and include song credits in the description or a disclaimer that “I do not own the rights” – does this make it permissible to use the song without the license/rights?

No. While you may not own the rights, you still need permission to use the work. The disclaimer does not free you from your obligations in terms of copyright law. You also need to be aware of the platform T&Cs as some platforms may prohibit the use of these disclaimers.  

• Traver Mudz  

What new publishing rights perspectives have emerged out of this Covid-19 unusual season in relation to current Copyright Amendment Bill and is there a way to have them factored in?

The Virtual National Arts Festival is looking at including a discussion on the Copyright Amendment Bill during the Festival – this question will be considered in that forum.

Is the NAF now taking into account embedding publishing rights in their standard contracts as part of creatives commercialising their IP even after a festival performance with NAF remitting royalties to them? 

The NAF is doing everything possible to engage with digital rights to protect and promote artistic works and ensuring compliance with the existing copyright regime. The NAF does not anticipate administering royalties as part of the digital festival, but will work closely with rights organisations like SAMRO and DALRO to ensure that works are appropriately registered and tracked during the course of the Festival as we would do in the live version. Similarly, as our open access platform is  created and artists generate revenue we will provide the necessary information to the relevant organisations for administration.

Is NAF partnering with organisations and or postgraduate students in IP research and innovation?

No. The core business of the National Arts Festival is to present arts festivals so we rely on others who have the relevant expertise to formulate legislation and discussion on IP issues. Having said that, we do encourage and support widespread engagement with research and discussion around intellectual property and the education of the arts sector on these matters.

Queries

Still have a question? Contact these institutions directly:

• SAMRO – samro.org.za
• DALRO – dalro.co.za
• CAPASSO – www.capasso.co.za
• Sosela Creative Legal Advisory – sosela.africa

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