COPYRIGHT AND NEIGHBOURING RIGHTS ACT (AS AMENDED) (e) in the course of a business, sells or lets for hire, offers or exposes for sale or distributes an illicit recording of a qualifying performance. (3) In any proceedings for an infringement of a performer’s right in terms of subsection (1), it shall be a defence for the person responsible for the alleged infringement to show— (a) in relation to an infringement specified in paragraph (a) or (b) of subsection (2), that he believed on reasonable grounds that the performer had consented to the recording or broadcast being made or to the performance being included in the cable programme service, as the case may be; (b) in relation to an infringement specified in paragraph (c), (d) or (e) of subsection (2), that he did not know and had no reason to believe that the recording concerned was an illicit recording. 71 Right of performer to remuneration for commercial use of sound recording of performance (1) Subject to this section, where a sound recording of a performance is used for commercial purposes, the performer concerned or, if there are two or more such performers, those performers jointly shall be entitled to half the royalty payable in respect of that use to the owner of any copyright in the sound recording. (2) The owner of copyright in the sound recording concerned shall be responsible for paying the performer or performers the amount payable to them in terms of subsection (1). (3) This section shall not apply to any performer who— (a) has waived his rights under this section; or (b) is entitled to a royalty in respect of the use of the sound recording concerned. (4) For the purposes of this section, a sound recording shall be regarded as used for commercial purposes if it is— (a) published; or (b) broadcast or included in a cable programme service; or (c) played in public; in the course of business or for the commercial or financial advantage, direct or indirect, of the person by or on whose behalf the recording is so published, broadcast, included or played. 72 Rights of holders of recording rights to performances (1) Subject to this Part, a holder of recording rights under an exclusive recording contract has the right to prevent the illicit recording of a qualifying performance or the exploitation of any such recording. (2) The right conferred by subsection (1) on a holder of recording rights is infringed by any person who, without his consent— (a) makes a recording of a qualifying performance; or (b) broadcasts a qualifying performance live or includes it live in a cable programme service; or (c) by means of an illicit recording, broadcasts a qualifying performance or includes it in a cable programme service; or Act 11/2001 - 42 Chapter 26:01