The Follow up - Oh the Dj license... ^Featured

So I took it on further investigation to confide and ask an opinion from a person who has been dealing with our label “Multi-Racial Records” and many other prominent Dj/Prodcuer’s labels  legal copyright Royalty affairs, Graeme Gilfillan of NISA an organisation which is devoted to the local entertainment industry and bases themselves on a wealth of experience in negotiating royalty and distribution agreements for local talent based, primarily on copyrights and performing rights. He has drafted an opinion based on this DJ license matter  from a "SAMPRA’s MOBILE DJ License" point for me which I would like to share with all of you’s on this platform, Ive taken it upon myself to draft summary points on his opinion as his opinion stretches out over 40 pages of insightful knowledge,but I have also attached a link where one can download and read the full replied opinions set out by Graeme.

These are  my summary and understanding of the his opinions put through .

The Argument?

The argument brought forth is how the requirement/demand/enforcement by a Collection Society of a copyright infringement (breaking the copy right law) upon the performing Dj career which identifies them as “public goods” taking into consideration that many professional Dj ’s are themselves performers and producers and that the licence in question is a “Mobile Dj(Featured music) license” Also questioning how these annual license fees demanded from the Dj’s will be split among the labels and their Artists , and also questioning how those respective rights from the copyright owners were received ?

What does the Law say?

Sound recordings(records / tracks) are protected by the Copyright Law , the owners(being the persons by who the track was made by) own the a number of rights for the track , and the law states that a royalty must be paid if certain acts(stipulated in the Copyrights Act 98 of 1978)  of the tracks are exercised(by any person) which include:

• Brodacasting the Sound recording

• Communicating(performing) the sound recording to the public

• causing the sound recording to be transmitted in a diffusion service, unless that service transmits a lawful broadcast, including the sound recording, and is operated by the original        broadcaster.

These royalties get further broken between authors,performers & successors which are explained in more detail in  Graeme’s linked  opinion at the bottom of this article.

What actually is the Collecting Society’s argument ?

The Collection society’s argument is that within the law the communicating (performing) of a sound recording to the public is a restricted act and that a license from the Collection Society for the use of sound recording within its collection of members is required. In their argument in particular to the Mobile Dj’s licence, Dj’s require their own license to cover INDIVIDUAl or ONCE OFF EVENTS and as Dj’s are responsible for “the communicating of sound recording to the public as featured Music” known as the "MOBILE DJ LICENSE".They make  it clear that this license does not cover nightclubs or similar venues, permanent regular engagements , consecutive events held in the same venue, and they acknowledge that if further info can be supplied to the collection society that the necessary license can be arranged for those specific venues or promoters. More in depth view on the link document

So what’s wrong then with the Collecting Society’s argument.....and why the need for this opinion?

In holding a DJ responsible for a license the Collecting Society is targeting the wrong party, because Dj’s(Proffessional & Ametuers) work by contract service, this means they operate as individuals and  are contracted for their services to perform at a “place of entertainment”(nightclubs, permanent regular engagements)by an “independent contractor”, similar to trying to hold accountable a radio Dj for a license when the DJ is playing music on the radio. The person or entity purchasing the Dj’s services should be responsible for the license. further in-depth opinions are set forth in the linked opinion.The distinctions made by the Collecting Society are subjective, arbitrary and inconsistent and are put in the minds of the few, outside of the public domain , it also in opinion that the Collection Society does not own the rights to represent sound recording owners, that it claims it does. It is also discovered that the Collection Societies are not compliant with the laws that regulate the Collecting Society’s behaviour explained further in the opinions document.

There has also been no consultation whatsoever with the DJ sector of this country for an understanding of agreement to be reached, in the transparency of rules and distribution monies collected. The importance of the buy in of the DJ community can not be understated and this should be gained through proper consultation.Most Dj's who applied for the Dj license have done so out of fear  rather than the understanding and acknowledgement of right doing, hell I thought we live in a democracy? 

Is the Collection Societys Claims against Dj’s forceable by law?

Without the rights in sound recordings and without compliance with the laws that regulate the Collecting Society, this is unenforceable in law , the collection society can not prove its rights, which should not be argued about but rather be engaged in and remedied through a resolution. 

Does a DJ presently need a Mobile DJ (featured music) license from SAMPRA or other Collection Society?

NO!!!!!!!

Until there is resolution, what does this argument mean to the DJ?

Conduct yourself in a professional manner … meaning DON’T blatantly rush off and go get yourself a Mobile Dj license from one of the collection societies which artifices you through fear into subscribing to it but rather prep yourself  when confronted by un-knowledgeable law enforcement personnel who wants to arrest you and produce a signed booking agreement with the following clause “Both parties accept that the public performance and communication to public of music at a place of public entertainment requires a license from the copyright owners or their respective collecting societies, both in respect of the sound recordings played by the DJ and in respect of the songs on those sound recordings. In respect of the event that the DJ is booked to perform the PURCHASER warrants and represents that it has secured all necessary public performance and communication to public rights from the copyright owners or their representative societies to enable the DJ to legally perform in public. The PURCHASER accepts that the aforementioned license compliance requirement is obligatory and indemnifies the DJ and the AGENT in the event that the PURCHASER fails to secure the requisite licenses, from any claims of any kind. Further neither the DJ nor the AGENT will have any liability or loss of fee in the event that the DJ’s performance is disrupted or stopped due to the reason of the PURCHASERS failure to secure the requisite and necessary public performance and communication to public licenses for the event” 

This carries over to having a signed booking agreement that is proper in law regardless if you play for money or for free , protect yourself

When, if ever, does a DJ need a Mobile DJ (featured music) license?

Never

When, if ever, does a DJ need a license to communicate to the public?

If the venue doesn’t hold a collection society license, but the  smart choice is not to accept to play at that unlicensed venue.

Other issues of compliance DJ’s need to be aware of …

Be aware of rules and regulations of the game  after all Djing in itself is business , invest in it by sourcing your music in the legal manners(don’t pirate) infringing on copyrights could get you into a lot of trouble, keep receipts, any form of communication  if you receive promos.

So in my understanding

Dj’s(Professional or Amatuer) should not be cohursed through fear to apply for a Mobile DJ license but should rather conduct themselves in a professional manner by ensuring that they have a signed booking contract with the specific clause stating that the person booking them is aware of the public performance and communication rights and that it has secured those rights for the venue or event indemnifying the Dj and your booking agent .And once again steering away from piracy and making sure the music you carry with you as all been obtained without infringing copyright laws.

Graeme has even gone as far to make these opinions brought to attention to those that sit in the Department of Trade and industry in order to get someone in the Registrar of Copyright in order and maybe get the Dj sector engaged in this Dj license confusion