on one of the parties. This is also reflected in regulation 27 of the Copyright Regulations10 which deals with
the procedure at a hearing before the tribunal. This regulation provides that ". . . every party to the reference
or application shall be entitled to attend the hearing and to address the tribunal and call oral evidence".
Regulation 31 of the
Page 51 of [2016] 2 All SA 40 (SCA)
Copyright Regulations, which deals with the furnishing of evidence to the tribunal, provides that evidence:
". . . shall be given orally or, if the parties agree or the tribunal so orders, by affidavit, but the tribunal may at any
stage of the proceedings require the personal attendance of any deponent for examination and crossexamination."
In the context of the informal procedure envisaged by the Act, as well as the Regulations, it would be
incongruous to impose a formal onus of proof upon a claimant to satisfy the tribunal that its claim is well
founded.
[30] Consequently, all that is required of a claimant is to place evidence before the tribunal on the issue of
whether the claim is well founded. In other words, an evidentiary burden rather than a legal burden of proof.
At the end of the day for the claimant to succeed the tribunal is required to be satisfied, on all of the evidence
placed before it, that the claim is well founded.
Was sufficient evidence placed before the tribunal for it to be satisfied that the claim of the retailers was well
founded, and that the tariff proposed by SAMPRA was unreasonable?
[31] It is necessary at the outset to deal with the contention by SAMPRA that the retailers were obliged to lead
evidence of the rand value they derived from the use of sound recordings in their stores. SAMPRA submits that
the tribunal could only determine what is a reasonable tariff "in the circumstances" in terms of section 33(5)
(b) of the Act, once it was established that this value was disproportionately lower than the proposed tariff.
The discrepancy in value must be such as would cause economic harm to the retailer. In addition, the
argument went, it would have to be established that the retailers need to use the recordings offered by
SAMPRA under a blanket licence in order to sustain the viability of their businesses. Further, the argument
continued, it would have to be established that no available substitute would serve the retailers' economic
interests, even if such available substitutes are recordings of the same musical works as those offered under
a blanket licence by SAMPRA.
[32] The issue of whether the rand value to the retailers of playing music in their stores had been researched by
them, but not disclosed, played a significant role in the evidence led by SAMPRA. Mr Keith Lister, the chairman
of the board of SAMPRA, stated that the retailers knew the value of playing music in their stores and that the
report prepared by their experts that they do not, was "a work of fiction". He was of the view that the
evidence of the economist of the retailers, that no one knows the economic value of music and no one can
presently calculate it, is "complete nonsense". However, Mr Lauri Rechardt, an attorney in Finland and a
consultant to the International Federation of the Phonographic Industry, called by SAMPRA, stated that he
had not seen this type of evidence used in any court case. He said he had not seen any studies that
established that for a retailer to play original recorded music "the value is X amount of Euros or Dollars or
Rand . . ." although he would prefer it if there was such evidence. He assumed that this was because the
retailers would be unwilling to assist in collecting such information, which they would not wish to disclose.
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[33] These views were echoed by another expert called by SAMPRA, namely, Prof Charles Areni, to comment on the
use by retail businesses of atmospheric music to achieve commercial objectives. He was not, however, asked
to express an opinion on whether the SAMPRA tariff was reasonable. He agreed that no research had been
done anywhere to assess the global relationship between playing music in a retail environment and profits.
He also agreed that any such study would be prohibitively expensive and impractical, because it would take
too long. He said he would accordingly not criticise the retailers for not conducting this type of research. He
added that it was not just that the research was not available, but the magnitude of the study would need so
many retailers, so many different formats of music would have to be tested, so many variables would have to
be kept track of and even then one could not be sure that the simple result would generalise to all retailers.
He added that anybody considering this type of research would consider that it was going to cost a lot of
money, take a lot of time and whatever conclusion was attained may not apply to all retailers. Accordingly in
his view, one could not expect the retailers in this case to carry out this type of research.
[34] Mr David du Plessis, a member of the board of SAMPRA, stated that any attempt by the retailers to measure
the economic value of playing music in their stores, would produce a result that would be speculative and
subject to a wide range of variables. He explained that different users may extract different value from the
use of the same repertoire of music. Even within one retailer, one might find a different usage of the same
music. He had no expectation that the retailers would be able to say what the actual monetary value was to
them, of playing music in their stores.
[35] Prof Donald Ross, a professor in the school of economics at the University of Cape Town, was called by the
retailers to comment on the tariff set by SAMPRA, how it would compare with one that a free market would be
expected to set and how it compared with a tariff that would optimise overall social welfare. He stated that no
research had been done by any party that would quantitatively estimate the value range to retailers of
broadcasting copyright protected music. It would not be impossible to investigate this but would require time
consuming, carefully designed and relatively expensive experiments. The outcome of such research at a
particular retailer's store would not, however, be sufficient to set a tariff for all stores. In addition, the sample
of retailers studied would have to be random with respect to all the variables in the structural model, and