Section 23 of the Copyright and Neighbouring Rights Act 2000 is unusual: it does not give a right to prohibit, but a right to be paid.
Section 23(1) — the remuneration right
Where a sound recording published for commercial purposes, or a reproduction of such a recording, is used directly for broadcasting or other communication to the public, or is publicly performed, a single equitable remuneration for the performer or performers and the producer of the sound recording shall be paid by the user to the producer.
Three uses trigger the obligation: broadcasting, other communication to the public, and public performance.
Public performance is defined in section 2 to include, for a sound recording, making the recorded sounds audible at a place where persons outside the normal circle of the family and its closest acquaintances are or can be present.
So playing recorded music in a hotel, a bar, a restaurant, a shop, a bus, a gym or a nightclub is a public performance, and section 23 makes a payment due. It is not optional and it does not require a licence negotiation — the obligation to pay arises from the use itself.
Section 22 gives the producer exclusive rights over reproduction, importation, first sale, rental and making available online. It gives no exclusive right over broadcasting or public performance.
Section 23 supplies the substitute. The user does not need permission; the user needs to pay. That structure keeps radio, television and background music workable while ensuring the people who made the recording share in the value.
Note the words “a single equitable remuneration”. One payment covers both the performers and the producer, and it is paid by the user to the producer — so a business dealing with the producer discharges the whole obligation under section 23.
Section 23(2) — the split
Unless otherwise agreed between the performers and the producer, half of the amount received by the producer under subsection (1) shall be paid by the producer to the performer or performers.
The 50–50 split is a default, displaced by agreement. A recording contract may provide for a different share.
That makes section 23(2) one of the clauses a performer should look for. It works with section 21(5), which preserves the performer’s right to agree by written agreement on such terms and conditions as are most favourable to him.
Note the direction of the obligation: the producer collects and then accounts to the performers. Performers should therefore ensure the contract also deals with reporting and payment mechanics, not only the percentage.
“Published for commercial purposes”
A sound recording that has been made available to the public by wire or wireless means in such a way that members of the public may access it from a place and at a time individually chosen by them shall be considered as if it has been published for commercial purposes.
The definition of published in section 2 requires tangible copies made available to the public in a reasonable quantity. A recording released only online would not meet it.
Section 23(4) closes the gap. A recording made available on demand is treated as published for commercial purposes, so its subsequent broadcast or public performance attracts the remuneration right.
Recordings that are not published for commercial purposes — a private recording, an archival tape, a demo never released — fall outside section 23 altogether. Broadcasting or performing those engages the producer’s and performers’ ordinary rights instead.
The other payments in the same transaction
| Right holder | Right engaged | Nature |
|---|---|---|
| Composer and lyricist (or their assignee) | Public performance — s 6(1)(h); broadcasting — s 6(1)(i); communication to the public — s 6(1)(j) | Exclusive right — permission required |
| Producer of the recording | Section 23 remuneration | Right to be paid — no permission required |
| Performers | Half the section 23 remuneration, unless otherwise agreed | Paid through the producer |
| Broadcasting organisation | Where a broadcast is being relayed — s 24(1)(b), communication to the public of the broadcast | Exclusive right |
This is the point most often missed. Section 23 deals with the recording. The musical and literary work recorded is protected by copyright, and its owner holds exclusive rights of public performance, broadcasting and communication to the public under section 6(1)(h), (i) and (j).
A venue that pays the producer under section 23 still needs authorisation from the owner of the copyright in the songs. And a venue relaying a broadcast — a television or radio feed — also engages the broadcaster’s exclusive right under section 24(1)(b).
Section 23(3) — duration
The right subsists from the date of publication until the end of the fiftieth calendar year following the year of publication — or, where the recording has not been published, from the date of fixation until the end of the fiftieth calendar year following the year of fixation.
The same measure as the producer’s rights under section 22(2) and the performers’ rights under section 21(6). After that the recording may be broadcast and performed without payment under section 23 — though the underlying musical work may still be in copyright, since its term runs for the life of the author and 50 years from death.
Section 23 is not subject to section 25 in its opening words, unlike sections 21, 22 and 24. But the limits in section 25 are directed at those three sections, and section 23 is confined by its own terms to commercial recordings used for broadcasting, communication to the public or public performance.
Note finally that under section 32, the provisions of any international treaty on copyright and related rights to which Papua New Guinea is party apply to matters dealt with under the Act, and prevail to the extent of any inconsistency — relevant because remuneration rights of this kind are commonly the subject of reservations and reciprocity conditions in international instruments.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 6, 17, 21–25, 32
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.