2012:
"Because I have heard nothing from you I am assuming that the SABC no longer wishes to discuss seriously as well
as timeously the broadcast of this film".
Page 633 of [2016] 4 All SA 623 (GJ)
Again on 28 June 2013, she wrote to the applicant:
"I would like to know if I can now assume that (a) the SABC has no intention of broadcasting this film and that (b)
they do not wish to continue the discussion about the same. Clarity on this point would help me to plan the way
forward. In the absence of any clarity I am going to assume that this film will never see the light of day at the SABC."
[22] The applicant did not comment on the clarification sought by Vollenhoven but in its email to her dated 29
November 2012, Mr Pretorius stated: "The Business plan for the sale of Project Spear is going around. Henk
Lamberts will contact you to conclude." She received no response. She reminded Mr Pretorius in an email on
19 March 2013 that she was awaiting a response and wanted to know when the process for the sale would
be complete as she had clients who were interested in purchasing the rights. She received no response until
the applicant's attorney's letter of demand dated 21 June 2013 indicting the applicant would not sell the work.
This letter was a complete and unexplained about turn from its previous stance.
[23] In her email dated 28 June 2013, Vollenhoven explained that the raw footage was with the editor, Eileen de
Klerk and the only reason it was not returned to the applicant was because the broadcast issue had been
previously unresolved and the industry practice by producers was not to return rare raw footage as the
archiving of the applicant was understood to be poor. Vollenhoven gave an assurance that the editor would
make the raw footage available at the end of July 2013. By then, these proceedings had been instituted.
[24] The applicant does not explain in its papers why it has not availed itself of Vollenhoven's offer to make the
raw footage available and since July 2013 there is no evidence at all of any effort to retrieve this raw footage
and to use it. Thus as at the date of the hearing, almost three years later, the status quo has not changed.
The applicant has sought to distinguish its intention not to broadcast the work in its current form from its
intention to adapt it. No specific plans have been revealed by the applicant for the contemplated use of the
raw footage or the work. No budget has been mentioned nor any project contemplated to achieve this task.
As at 29 November 2012, the applicant had no intention of exploiting the work as it declared that the
business plan for the sale was being circulated. This stance changed in June 2013 when the applicant
confronted the respondents regarding infringement of copyright in the letter of demand immediately prior to
instituting these proceedings and advised that it was not prepared to sell the work. As stated, this change of
stance is not explained. The applicant has not shown any commitment to exploit the work. Preparedness to
sell the work to VIA is irreconcilable with an intention to exploit. The applicant's inconsistency, vagueness and
lack of action to date persuades me that for all practical purposes, it does not have a bona fide intention to
exploit the work.
Exploitation exception
[25] Since the coming into force of the Constitution, the courts are bound to read legislative provisions through the
prism of the Constitution. Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC) at paragraph 87 [also reported at
Page 634 of [2016] 4 All SA 623 (GJ)
2016 (6) BCLR 709 (CC) Ed]. 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 second option, it is argued, is to regard the exploitation
exception as a form of��fair dealing. The respondents contended that the underlying purposes of the Act were
to protect the personality right of authors; to ensure that the acquisition and use of intellectual property is
fair; to promote the free spread of art, ideas and information, not to hinder it and to regulate copyright so as
to enhance a vibrant culture in South Africa. Thus on a purposeful interpretation of the Act, so it is argued, it is
not just to protect owners of copyright but to advance the public good: The general scheme of the Act does
not grant absolute rights to holders of copyright. Reliance was placed on Frank & Hirsch (Pty) L t d v A
Roopanand Brothers (Pty) Ltd 1991 (3) SA 240 (D) per Booysen J at 245BC [also reported at [1991] 2 All SA 85
(D) Ed]:
"In general terms the principal purpose of copyright law is to advance public welfare by rewarding the talent of
authors of original artistic or literary works with a limited monopoly over their works . . . , or to put it differently by
enabling them to prevent others from copying and exploiting their work without their consent."
There is nothing in this dictum to support the meaning of public good relied on by the respondents. Their
construction of public good or welfare is equated to dissemination of ideas and this is nowhere to be found or
implied.
[26] Four traditional theories, it was submitted, undergird copyright: (a) personality; (b) fairness; (c) welfare; and
(d) cultural. Justin Hughes "The Philosophy of Intellectual Properly" (1988) 77 Georgetown Law Journal 287.
Emphasis was placed on the fairness theory which posits "no waste and no harm" as exceptions to copyright.
Thus the argument is that the non exploitation by the applicant of the work constitutes a waste of the
intellectual property and the use by VIA would not harm the applicant's rights.
[27] The nature of copyright has been contested and criticised in legal scholarly writing. The following conceptions
are in similar vein:
"Copyright doctrine is informed by a commonly perceived, seemingly basic contradiction of purpose. On the one
hand, copyright aims to promote public disclosure and dissemination of works of 'authorship'; on the other hand, it