Performers’ Rights After the 2026 Copyright Ruling

Key takeaways

• South African performers should continue to use the Performers’ Protection Act 11 of 1967, as amended, together with their contracts and any separate copyright or collecting-society arrangements. The Constitutional Court’s judgment of 26 June 2026 did not bring the Performers’ Protection Amendment Bill into force and did not itself create the Bill’s proposed written-contract terms, expanded economic and moral rights, sale or rental remuneration, reporting duties or 25-year sound-recording transfer limit.
• Current law already restricts specified unauthorised broadcasts, public communications, fixations and reproductions of performances. It also provides for royalties when a commercially published fixation is used in specified broadcasts, diffusion services or communications to the public. The person entitled to receive and share those royalties, the amount, deductions, reporting and dispute route can depend on the Act, the recording arrangement, contracts and collecting-society position.
• Do not assume that a favourable court statement about part of a Bill means every performer now receives new royalties or back-pay. Identify the performance, recording, use, contract, copyright owners, royalty channel and date before making a claim or signing a release.

Status at a glance

This article owns the performer-specific transition question. The copyright glossary explains the separate exclusive rights in works and recordings, while the broader reform-status article addresses fair use and the Copyright Amendment Bill generally.

First separate the rights in the performance

A singer, actor, musician, dancer or other performer may participate in several legally distinct assets:

• the live or unfixed performance;
• the recorded performance;
• the underlying song, script, choreography or other work;
• the sound recording or audiovisual production;
• a broadcast or other transmission;
• a name, image, voice or promotional appearance; and
• a contract right to a fee, royalty, credit, statement, audit or approval.

Being the performer does not automatically make the person the copyright owner of the song, script, film or sound recording. Being paid a session fee does not by itself answer every future-use question. A collecting society’s role also does not replace the recording, producer, publishing, employment or commissioning agreements.

Create a rights map before asserting “my copyright” or “my royalties”. The intellectual-property glossary helps distinguish these layers.

Rights available under the current Act

Consent for specified acts

Current section 5 restricts specified conduct without the performer’s consent. In broad terms, it covers broadcasting or communicating an unfixed performance to the public, fixing an unfixed performance, and reproducing a fixation where the original was unauthorised, the reproduction exceeds the consent given, or an exception does not cover the purpose.

The exact consent matters. A consent to one recording, episode, platform, edit, territory or promotional use may not answer a later reuse. Conversely, section 5(2) contains a default rule for consent to broadcasting in the absence of a contrary agreement. Do not extract one sentence from a deal memo; read the entire agreement, schedules, release, union or collective terms and amendments together.

Royalties for specified commercial uses

Current section 5(1)(b) prohibits specified broadcast, diffusion-service transmission or communication to the public of a commercially published fixation without payment of a royalty to the performer concerned. Section 5(3) provides for the amount to be agreed between the relevant parties or their representative collecting societies. If no agreement exists, the Act provides a Copyright Tribunal or agreed arbitration route.

Section 5(4) adds an important allocation rule. Where the performer authorised the fixation, the person arranging it is, absent a contrary agreement, deemed to hold the exclusive right to receive the specified royalties, but the performer is entitled to share in the payment in the manner agreed with that person or between their collecting societies. If there is no sharing agreement, the section provides a Tribunal or agreed arbitration route.

That is why a royalty question cannot be answered from a streaming screenshot alone. Identify who arranged the fixation, who owns the sound recording, which collecting society or licensee administered the use, what the contract says, and whether the claimed use falls within current section 5.

Term of protection

The 1997 amendment extended the section 5 protection period to 50 years calculated from the end of the calendar year in which the performance occurred or, if incorporated in a phonogram, was first fixed there. A term calculation still requires the correct event, date, recording and applicable version of the law.

Current exceptions

The Act contains exceptions, including specified private, criticism, review, current-events, teaching, research, legal-proceeding and equipment-demonstration contexts, plus a controlled broadcaster-fixation provision. These are not universal labels. The exact use, amount, acknowledgement, purpose, recording and consent must fit the operative wording.

What the Constitutional Court decided in 2026

The case was Ex parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill, [2026] ZACC 26.

The Court reviewed provisions referred by the President before enactment. Its order concerned proposed copyright sections on author remuneration, fair use, specific exceptions, education, software interoperability and cultural institutions. It then stated that the orders also apply to corresponding provisions of the Performers’ Protection Amendment Bill.

The majority held proposed fair use and several targeted exceptions constitutional within the scope of the referral. It declared the corresponding broad educational and academic exceptions in proposed section 12D(1)–(5) unconstitutional. It also held part of the referral concerning proposed author-remuneration sections 6A, 7A and 8A incompetent because the constitutional referral sequence had not been met for the broader challenge.

The judgment did not:

• sign or publish the Performers’ Protection Amendment Bill;
• set a commencement date;
• insert the Bill’s proposed economic, moral, contract or remuneration provisions into the current Act;
• decide the constitutionality of every clause in the Bill;
• award a performer royalties, damages or back-pay;
• rewrite the provisions found unconstitutional; or
• decide whether a particular recording, broadcast, stream, film use or contract infringes a performer’s rights.

The Court stressed that a section 79 referral is not general certification of an entire Bill. Post-enactment constitutional challenges would remain possible. A performer, producer, platform, broadcaster or collecting society should therefore treat the judgment as part of the legislative process, not as a replacement contract or payment statement.

What the Bill proposes—but does not yet provide

Parliament’s B24D-2016 text proposes a wider framework. Among other things, it would:

• state expanded economic rights for performances fixed in sound recordings or audiovisual fixations;
• extend moral-right language to audiovisual performances;
• require consent to fixation to appear in a written performer-producer agreement;
• require that agreement to contain prescribed compulsory and standard terms and state royalties or equitable remuneration;
• provide a transfer mechanism and a proposed maximum 25-year duration for specified exclusive rights in a sound recording;
• give a performer and sound-recording producer equal remuneration for specified uses, subject to an agreement to the contrary;
• extend specified rights and remuneration to sale, commercial rental, making available and distribution;
• require records and reports for specified commercial uses; and
• allow regulations on compulsory contract content and consent guidance.

Those proposals explain why contracts, reporting and royalty allocation are central to reform. They are not a checklist of current mandatory rights. The final text may change in response to the judgment, and some provisions depend on regulations. Do not label a voluntary contract term “required by the new Act” until the final Act and commencement position support that statement.

What a performer contract should record now

A careful current contract can address uncertainty without pretending the Bill has commenced. Record:

1. Parties and capacity: the performer, producer, recording owner, commissioning party, employer, agent and any collecting society or administrator.
2. Performance: the work, role, session, venue, recording title, dates, versions and whether the performance is live, unfixed, audio, audiovisual or both.
3. Consent and fixation: what may be recorded, by whom, and whether retakes, edits, dubbing, synchronisation or excerpts are authorised.
4. Uses granted: broadcast, public communication, reproduction, distribution, sale, rental, on-demand access, promotion, archive, platform, territory and media.
5. Duration and exclusivity: start and end dates, options, exclusivity, holdbacks, reversion, termination and continuing uses.
6. Payment: session fee, buy-out, royalty or equitable-remuneration basis, percentage, calculation base, recoupment, deductions, tax, currency and payment date.
7. Statements and evidence: usage reports, cue sheets, track identifiers, platform reports, frequency, supporting records, audit rights and query deadlines.
8. Credit and integrity: billing, name and role, credit placement, permitted edits, objection or approval process and treatment of voice, image or likeness.
9. Separate copyrights: ownership or licences for the composition, lyrics, script, choreography, film, sound recording, artwork and promotional material.
10. New uses and technology: whether synthetic voice, digital replica, training, localisation, clips or later platforms are included, excluded or require further consent.
11. Disputes and exit: notice, correction, accounting, mediation, Tribunal, arbitration, court, governing law, breach, takedown and termination mechanics.

These are drafting questions, not assumptions that every performer should receive the same commercial terms. The copyright ownership checklist helps organise creators, works, contracts, assignments and licences, while the IP protection checklist supports a wider asset inventory.

How to audit a royalty or reuse concern

Build an evidence file before alleging underpayment or unauthorised use:

• the signed contract, schedules, releases, amendments and invoices;
• the exact performance and recording, including title, version, identifiers and dates;
• proof of the performer’s role and the fixation arranged;
• credit, cue-sheet, liner-note, call-sheet or session records;
• the allegedly unauthorised broadcast, stream, upload, sale, rental, synchronisation or reuse;
• screenshots or recordings with dates, URLs, territory and platform details, preserved lawfully;
• collecting-society membership, mandate, repertoire and distribution statements;
• royalty, producer, label, broadcaster or platform statements and payment records;
• correspondence about consent, ownership, credit, reporting or objections; and
• a calculation that separates contract fees, performer royalties, copyright royalties, expenses and tax.

CIPC states that collecting societies license, collect and distribute specified music royalties and are regulated under the Copyright Act, Performers’ Protection Act and collecting-society regulations. That does not prove that a particular use was licensed, reported or payable to a particular person. Verify the society, mandate, repertoire, period, usage data and distribution rules directly.

Use the lawyer consultation preparation guide to index the evidence before a focused review.

Red flags that require closer review

• a release describes every future medium and territory but does not identify the performance or payment basis;
• a party calls a payment a “full buy-out” without explaining which performer, copyright, likeness or contract rights are included;
• the producer, label, broadcaster, platform and collecting-society roles are conflated;
• royalty terms omit the calculation base, deductions, statements or audit mechanics;
• a promise of “equal royalties under the new law” is made without an operative Act or contract term;
• a demand for retrospective royalties does not identify a current section, agreement, use and accounting period;
• consent to record is treated as consent to every reproduction, edit, platform and promotional use;
• credits or usage data differ across versions, identifiers or territories;
• a contract signs away rights for a minor or represented performer without verified authority; or
• a demand, takedown or public accusation is sent before preserving the use and ownership evidence.

When focused legal advice is useful

Obtain current advice before signing a long-term, exclusive, cross-border, buy-out or catalogue agreement; where a performance is used in both sound and audiovisual productions; where the recording, composition and performer rights have different owners; where a collecting-society mandate or distribution is disputed; or where an urgent release, takedown, broadcast, stream or accounting deadline exists.

Use the lawyer directory to identify practitioners with relevant performer, copyright, music, film, contract or dispute experience. Ask the adviser to separate current statutory rights, proposed reform, contract rights, collecting-society administration and the proof required for each claimed use. No adviser should guarantee new legislation, a royalty amount, back-pay or a dispute outcome.

Sources and review note

This article was checked on 21 July 2026 against the Performers’ Protection Act 11 of 1967; the Intellectual Property Laws Amendment Act 38 of 1997; the Performers’ Protection Amendment Act 8 of 2002; Parliament’s B24D-2016 Bill text and status page; the Presidency’s 2024 referral; Ex parte President [2026] ZACC 26; the Copyright Act; and CIPC collecting-society information. Assent, Gazette publication, commencement, regulations, transitional effect, performer status, consent, fixation, reproduction, broadcast, communication to the public, term, exceptions, royalties, equitable remuneration, recipient and sharing rights, collecting-society mandates, copyright ownership, contracts, moral rights, credits, likeness or voice use, digital replicas, cross-border rights, evidence, Tribunal or arbitration procedure, remedies, prescription, back-pay and every likely outcome require source/legal review for the specific facts before reliance.

FAQs

Related Lexuno paths