The National Organisation for Reproduction Rights in Music in Southern Africa (NORM) has issued a multi-million rand summons against Exact Mobile.

The mid-August legal action sees South Africa’s music publishers and composers’ society take legal action to claim unpaid royalties due on digital downloads sold by Exact Mobile. Primedia Ltd has a controlling stake in the Johannesburg-based mobile content provider.

According to the summons, NORM has asked for an order in terms of which Exact Mobile must cease infringing the copyright of NORM’s members and pay a royalty of 7,5% which it regards as reasonable, backdated to 1 January 2006.

NORM is also asking for R2-million as additional damages as a result of the continued sale of mobile content containing copyrights controlled by 11 of its members, in contravention of the Copyright Act.

Says John Fishlock, NORM Board member and MD of Universal Music Publishing, “We have been patient with Exact Mobile for too long now and believe that legal action is the only remedy that we have open to us.”

At the centre of the dispute between NORM and Exact Mobile is the mechanical royalty rate that arises when the Wireless Application Service Provider records licensed works belonging to NORM’s members into digital files for use as ringtones on cellular phones.

According to NORM, 7,5% of the consumer price of a ringtone sold is reasonable and in keeping with international standards: currently the mechanical copyright rate for ringtones averages at 8.2% of end user price in Europe. Indeed, the 7,5% royalty rate has already been accepted by 14 Wireless Application Service Providers with whom NORM has already concluded Digital Agreements at the 7,5% rate. Included in the latter are several key players in the industry among them Musica and Pick & Play.

Initially NORM’s Digital Agreements – including that with Exact Mobile – operated on a cent rate up to 2005. After 2005, negotiations commenced with a number of service providers who then disputed the royalty rate claimed by NORM. This included Exact Mobile who had indicated its willingness in writing to pay NORM’s 7,5% rate. As members of WASPA (the Wireless Application Service Providers Association, established August 2004) Exact Mobile has reversed it’s position and now disputes this rate.

None of WASPA’s members are currently paying NORM at the 7,5% royalty rate claimed by the collecting body on behalf of its members.

Among the high profile South African composers and songwriters affected by non-payment of royalties are Thandiswa Mazwai, Mapaputsi, Leon Schuster, Springbok Nude Girls, Tuks, Freshlyground, Sipho “Hotstix” Mabuse, Nicholis Louw, Zamajobe, Dozi, Yvonne Chaka Chaka, Harris Tweed, Phuzekhemisi, Karen Zoid, Deborah Fraser and Steve Hofmeyr. A large number of international composers and songwriters are also affected.

“By selling ringtones with copyrights that belong to our members, without a licence is in effect piracy,” says Jay Savage, NORM Board member and MD of Sony ATV Music.. “The service providers are knowingly infringing the copyright in our works and are continuing to sell them whilst refusing to pay the reasonable royalty. And in effect subscribers who purchase music in good faith believe they are acquiring it legitimately - could conceivably be said to be receiving stolen goods”

As part of its action, NORM is calling on all composers to publicly voice their objection to the unauthorised use of their creative property.