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Performers’ Protection

Would you rather see Dr John Kani perform the lead role in Athol Fugard’s play Sizwe Bansi is Dead, or me? This is a no-brainer, of course, and not only because (I am a useless actor and) he is world famous, but also because of his immense talent, ability and skill in interpreting dramatic works on stage. In short, his performance.

Before the days of sound recording, cinema, and radio broadcasting, actors and musicians were not given protection for their performances. This in itself was not problematic, because the only way the public could get to enjoy the performance – be entertained, in other words – was to buy a ticket to see the show. However, when technology made it possible for people to enjoy the show without having to go to the theatre to do so, performers obviously faced a reduction in employment opportunities. In time, they sought protection against the unauthorised exploitation of their performances.

In South Africa, this is what the Performers’ Protection Act 19671 is all about. The Act falls under the authority of the Minister of Trade and Industry. It contains a number of prohibitions, but none of them are criminal offences unless the person in question ‘knowingly’ commits the prohibited deed. Of course, if the performer consents, also, there is no contravention.

The protection is available to all types of performers: actors, singers, musicians, dancers, mime artists, etc.

A. Unfixed performances

A performance becomes ‘fixed’ when it is recorded on a storage medium. A live performance, as it is happening, is therefore ‘unfixed’.

  1. It is an offence to broadcast or communicate to the public anyone’s unfixed performance.2 3

  2. It is a crime to make a fixation of someone’s unfixed performance (i.e. a ‘bootleg’).4

B. Fixations of performances

  1. Any person who makes a reproduction of a fixation5 of a performance commits an offence if:
    • the original fixation was itself made without consent;6 or
    • the reproduction is made for purposes other than those for which the performer gave consent to the making of the original fixation (or of a reproduction thereof);7 or
    • if the original fixation was made in accordance with the fair use provisions,8 but the reproduction is for other purposes.9
  2. It is an offence to broadcast a fixation of a performance, which has been published for commercial purposes, without payment of a royalty to the performer concerned.10 11

  3. It is also a crime to cause the performance to be transmitted in a diffusion service12 (unless such service transmits a lawful broadcast and is operated by the original broadcaster) without payment of the royalty.13
  4. In fact, it is an offence to cause any communication of the performance to the public, without payment to the performer of the royalty.14

C. Making and selling

  1. Any person who sells, lets for hire or distributes any unlawful fixation of a performance (or a reproduction of such a fixation) commits an offence.15

  2. It is, in fact, a crime to make or have in your possession, a plate or similar contrivance for the purpose of making unlawful fixations of a performance or reproductions of such fixations.16

  1. As amended; the latest amendments effected by Act 28 of 2013. 

  2. Unless the performance is already a broadcast performance. 

  3. Section 5(1)(a)(i) read with Section 9(1)a. 

  4. Section 5(1)(a)(ii) read with Section 9(1)(a). 

  5. There are exceptions. Mostly they relate to fair use – for private research, study, etc. See Section 8 of the Act. 

  6. Section 5(1)(a)(iii)(aa) read with section 9(1)(a). 

  7. Section 5(1)(a)(iii)(bb) read with section 9(1)(a). 

  8. See Section 8. 

  9. Section 5(1)(a)(iii)(cc) read with Section 9(1)(a). 

  10. There are organisations who represent performers for purposes of collecting this royalty. Contact SAMRO, at www.samro.org.za, for example. 

  11. Section 5(1)(b)(i) read with Section 9(1)a. 

  12. Basically, a wired system for communicating the performance. Piped music in shopping malls would be an example. 

  13. Section 5(1)(b)(ii) read with Section 9(1)(a). 

  14. Section 5(1)(b)(iii) read with Section 9(1)(a). 

  15. Section 9(1)(b). 

  16. Section 9(1)(c).