South African Broadcasting Corporation Soc Ltd v Via Vollenhoven & Appollis Independent CC and others
(Freedom of Expression Institute as amicus curiae)
[2016] 4 All SA 623 (GJ)
Division:
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date:
2 September 2016
Case No:
13/23293
Before:
L NOWOSENETZ AJ
Sourced by:
T Nzimande and L Rakgwale
Summarised by:
DPC Harris
. Editor's Summary . Cases Referred to . Judgment .
Intellectual property Copyright Vesting of ownership Copyright Act 98 of 1978 Section 21(1)(c) Section provides
that where a person commissions the making of a cinematograph film and pays or agrees to pay for it, and the work is
made in pursuance of that commission, such person shall be the owner of any copyright.
Editor's Summary
In terms of an agreement entered into between the parties, the first respondent ("VIA"), a film production house,
was commissioned by the applicant ("SABC") to make two documentary film episodes. The second respondent
("Vollenhoven") was a film maker and member of the first respondent. The applicant purchased the copyright in the
films. One episode was broadcast, but not the other. The work which had not been broadcasted by the applicant
was the subject matter of the present dispute. The applicant sought a final interdict against the first and second
respondents from infringing the applicant's copyright in the work ("distribution interdict") and delivery up of
specified production materials ("delivery interdict"). It relied in that regard on the protection afforded under the
Copyright Act 98 of 1978 (the "Act") as well as the agreement.
The SABC had not broadcast the work as it was not happy with its content. It contended that the documentary
went against the SABC editorial policies, their mandate and broadcasting legislation.
On subsequently becoming aware that Vollenhoven intended to screen the work at a literary festival in 2013, the
SABC contacted Vollenhoven claiming copyright and seeking an undertaking that the film would not be screened.
Such an undertaking was given and complied with. Vollenhoven also asked about finalising a move to buy back the
rights to the documentary. SABC responded with a refusal to sell any of its rights in the work to the respondents,
and demanded that the respondents hand over all materials in respect of the work. Vollenhoven's failure to comply
led to the present application.
Held Exclusive rights acquired in a cinematograph film are wide ranging and are explicitly listed in section 8(1) of
the Act. These include the right to reproduce the film, causing the film to be publicly shown, broadcasting, and make
adaptations. Section 3(1)(b) confers copyright on an author who is a qualified person. Ownership of such copyright
conferred in terms of section 3 vests in the author of the work. Section 1(d) defines the author in relation to a
cinematograph film as "the person by whom the arrangements for the making of
Page 624 of [2016] 4 All SA 623 (GJ)
the film were made". Section 21(1) provides that the ownership of any copyright conferred by section 3 ( i e a
qualified person) shall vest in the author. Section 21(1)(c) provides that where a person commissions the making of
a cinematograph film and pays or agrees to pay for it, and the work is made in pursuance of that commission, such
person shall be the owner of any copyright. Of critical importance is section 21(e) which makes provision for
excluding by agreement the effect of a commission agreement contemplated by section 21(1)(c). In other words,
the Act only vests the commissioning party of a cinematograph work with copyright ownership in the absence the
parties agreeing otherwise.
The interdictory relief sought by the applicant was based on the Act and the contractual rights emanating from
the agreement between the parties.
The requirements for obtaining a final interdict are a clear right; an actual or threatened injury or a reasonable
apprehension of harm; and the absence of an alternative suitable legal remedy.
The applicant as owner of the work, prima facie had a right to seek relief by way of an interdict. That right was
challenged by the respondents with the defences and counterapplication. The exploitation exception was based on
the argument that the Act was never intended to prevent the distribution of a work when it would provide no
benefit to the holder of the copyright. It was submitted that the applicant had no intention to exploit the work. The
Court noted the SABC's vagueness about its intentions in respect of the work. Its inconsistency, vagueness and
lack of action to date persuaded the court that for all practical purposes, it did not have a bona fide intention to
exploit the work. The Act does not contain an explicit exploitation exception. It was submitted on behalf of VIA that
it should be read into section 24(1) that any person attempting to enforce a copyright must establish that it intends
to exploit the work. The Court could not uphold that contention. It also held that the respondents' view that
copyright aims to promote public disclosure and dissemination of works cannot be regarded as a true reflection of
the purpose or intent of the Act and is not part of our copyright law. Having regard to section 21(1)(c), it flowed
from the statutory shift in the definition of authorship of a cinematographic work that the author's moral right
vested in the SABC and not the second respondent.