Public must pay to play
If you play music outside of your home or car and there are other people around to hear it, technically you owe the Southern African Music Rights Organisation (Samro) money. And it doesn’t matter if the music is recorded or from the radio.
The same holds true if you run a business and want to have the radio on in your office or store. In fact, if you have a television in your company’s reception area where the public may hear music, you owe Samro a licensing fee, too.
Samro inland regional sales manager Alan Gustafson says the industry body is simply fulfilling its mandate of enforcing the Copyright Act of 1978. "Audibility is the crucial word," Gustafson says. "Any music, however derived, played outside your car or home constitutes a public performance."
Music played in supermarkets, shopping malls, restaurants, taxis and buses requires a licence from Samro. "You are taking a format and entertaining your clientele," he says.
There are a few exceptions to the rule. Where music is being taught, for example, there is no need for a licence. But if there is a recital, where students perform for the public, then a licence is required.
Similarly, any music played during a church service is exempt, but anything played in the church before or after the service is not. Samro has 53 different tariffs for various uses. "The tariff for shops considers the floor space and the staff complement — because we can’t expect stores to know how many members of the public have come in and out," Gustafson says.
In an office environment, Samro considers only the number of staff. In the case of a restaurant, the organisation considers the number of seats and calculates the annual fee accordingly.
"It's not about how many people sit on a seat, but how many there are. Some restaurant owners say their restaurants aren’t always full and that it’s unfair, but I think its very reasonable considering it’s a single annual fee," Gustafson says.
In the case of a concert, Gustafson says the promoter is charged a fee based on gross ticket sales "to keep it as simple as possible". Some of the most flagrant infringers of Samro's licensing requirements are deejays. "In addition to a venue needing a licence, all deejays must be licensed, too. They are charged a fee of R836 for their first year and must then keep a list of all events and venues they play, which is then used to work out their fee for the following year. Gustafson says the penalties for noncompliance vary, but that it is not Samro’s goal to shut companies down if they break the rules.
"Our main aim is to negotiate compliance. We go as far as possible to get compliance. If you refuse, we go the legal route."
Samro can backdate infringements for up to three years and can confiscate deejay' or venues' equipment.
However, policing infringers is a problem as Samro has only 12 "relationship consultants" countrywide.
Gustafson says some of the organisation’s 8 000 members have also reported transgressors in the past. Another problem, he says, is getting the South African Police Service to assist. “We’ve been trying to get them on our side, and they’ve done some work on clamping down on piracy, but it’s tough. To take someone and charge them for piracy costs the police around R1 200 in resources, but three hours later the person is back on the street and has paid a fine of only R300.”
In public transport, Gustafson says enforcement is particularly difficult to deal with, especially when it comes to minibus taxis. Taxi owners claim that drivers install sound systems themselves and that it’s almost impossible to get individual drivers to pay up.
“We managed to get about 100 taxis licensed for a year in Gauteng, but just try catch them again for the second year,” he says. “We’re trying to figure out how we can go to the taxi associations and offering a flat fee per taxi, and we’re looking at what other [copyright] societies are doing around the world. We are fighting the police on this, too, because they aren’t enforcing the law and they’re backing the taxi drivers.”
Wide-ranging Samro’s rules are so wide-ranging that, in practice, playing music on a radio in a public park with friends constitutes a public performance. So does playing music loudly in a parked car. However, Gustafson admits that the organisation isn’t likely to try and enforce those rules.
It’s crucial, he says, that the public realises that the majority of Samro licence fees go back to artists as royalties. “How many of our artists have died as paupers? We cannot keep on stealing from our musicians,” he says. — (c) 2012 NewsCentral Media