[15] In Nintendo Co Ltd v Golden China TV Game Centre and others 1995 (1) SA 229 (T) [also reported at [1995] 4 All
SA 421 (T) Ed] a manufacturer of video games sought to interdict the respondents from infringing its
copyright. It was held that the video games were cinematograph films and that the applicant was the author.
In reaching this conclusion the manner in which the games were developed was examined. A team of
employees of the applicant designed and produced the games but some members of the team were
employees of other Japanese companies commissioned to do that particular work. This case was confirmed on
appeal in Golden China TV Game Centre and others v Nintendo Co Ltd 1997 (1) SA 405 (SCA) [also reported at
[1996] 4 All SA 667 (SCA) Ed].
[16] Section 21(1) provides that the ownership of any copyright conferred by section 3 (ie 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 in money or money's worth, 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. Section 24(1) provides that infringements of
copyright shall be actionable at the suit of the owner of the copyright and contains the remedies and
procedures in enforcement proceedings.
[17] The applicant is a juristic person incorporated in the Republic. It commissioned the producer to make a
cinematograph film, ie the work, which was sold to the applicant who has paid the producer. On application of
these principles, the statutory owner and author of the work is the applicant. The producer, however, can
avail itself of the general exceptions to a copyright holders' claims. The Act provides for general exceptions to
protection of film copyright under the rubric of fair dealing: research and private study (section 12(1)(a));
criticism or review of the work section 12(1)(b); for the purpose of reporting current events (section 12(1)
(c)); judicial proceedings (section 12(2)); quotation (section 12(3)); teaching (section 12(4)). A general
reproduction exception provides for where the reproduction of the work is permitted by regulation and is not
in conflict with the normal exploitation of the work. The text of section 13 reads:
"In addition to reproduction permitted in terms of this Act reproduction of a work shall also be permitted as prescribed
by regulation but in such a manner that the reproduction is not in conflict with a normal exploitation of the work and is
not unreasonably prejudicial to the legitimate interests of the owner of the copyright."
[18] The interdictory relief sought by the applicant is based on the Act and bolstered by the contractual rights
emanating from the agreement.
The requirements for obtaining a final interdict are well known. All the elements must be established:
(a)
a clear right;
Page 632 of [2016] 4 All SA 623 (GJ)
(b)
an actual or threatened injury or a reasonable apprehension of harm; and
(c)
the absence of an alternative suitable legal remedy.
The requirements of an interdict based on copyright infringement are the same as any other interdict. Fax
Directories (Pty) Ltd v SA Fax Listings CC 1990 (2) SA 164 (D) at 179BC [also reported at [1990] 1 All SA 107
(D) Ed].
[19] The applicant as owner of the work, prima facie has a right to seek relief by way of an interdict section 24(1).
This right is challenged by the respondents with the defences and counterapplication which are now
considered. The exploitation exception is based on the argument that the Act was never intended to prevent
the distribution of a work when it will provide no benefit to the holder of the copyright. It was submitted that
the applicant has no intention to exploit the work. This a factual issue. If it is found that the applicant has an
intention to exploit, the defence falls away but the intention to exploit issue also impacts on the contractual
counter application.
Applicant's intention to exploit
[20] It is not in dispute that the work has not been broadcasted, adapted, licenced, sold or indeed used in any
manner by the applicant to derive a commercial advantage. I understand this to be the meaning of "exploit" in
this context. The applicant states that the work is incapable of being exploited in its current form but insists
that it is not correct to assert that it does not intend to screen, use or exploit parts of it. In order to avoid
wasteful expenditure it states that it is duty bound to adapt or amend parts of it wherever possible. It states
that it is a common occurrence not to broadcast works it has commissioned, for a variety of reasons including
poor journalistic quality. It is awaiting receipt of the raw footage in which it also has copyright in order to
extract usable parts of this footage. Respondents contend that the raw footage is a separate copyright from
the work and use of the footage is not exploitation of the work. This distinction is artificial as use of the raw
footage is integrally connected to the work.
[21] The intentions of the applicant have been opaque in its communications with Vollenhoven about broadcasting
the work. It did not respond to Vollenhoven's proposal to jointly modify the work. In her letter dated 22
October 2012 after not hearing from Mr Pretorius for a week she made her proposals on major changes. In
that email she observed at the outset " From your silence I assume there is no budget for the major changes
you are suggesting." In conclusion she stated "Now all this will take time and money." She ended on this
note: "(please lets talk about how we move forward with this. I am prepared to compromise but you have to
meet me half way. "No response was forthcoming to these proposals at all. Nor was there any communication
to her as promised that the head of television would make the final decision whether the work would be
broadcasted. After waiting for a response by 1 November 2012, she wrote to the applicant on 19 November