Nonexclusive implied licence
[94] The plaintiff dealt with this defence fully in its heads of argument, not knowing that the defendant would
abandon it during argument. The defendant did deal with it (defence) in its heads of argument. Even though
interesting points were raised by both parties around this defence, the fact that the defendants decided not
to proceed with it makes it unnecessary for me to deal with it.
Constitutional limitations or imperatives
[95] It is trite that a statute should be interpreted in the context of constitutional imperatives. In the judgment of
Laugh It Off Promotions CC v SAB International (Finance) BV t/a SAB Mark International and another,54 t h e
Constitutional Court commented about this aspect as follows:
"[18] The SCA correctly held that s 34(1)(c) must be construed in the light of the Constitution and applied in a
manner that does not unduly trample upon freedom of expression. This approach would necessitate the
weighing up of the constitutional safeguard of free expression of the unauthorised user against the right to
intellectual property of the trademark owner and where appropriate the owner's freedoms of trade, occupation
for profession."
[96] The above judgment dealt with trademarks. I agree with suggestions that it is of equal application in
copyright cases.
[97] Section 16(1) of the Constitution of the RSA defines "freedom of expression" as follows:
"(1)
Everyone has the right to freedom of expression, which includes
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity;
(d)
academic freedom and freedom of scientific research."
[98] The defendant relies mainly on section 16(1)(b) above, ie freedom to receive or impart information or ideas.
[99] My understanding of section 16(1) of the Constitution is that although information in general comprises facts,
the section also protects, not only the imparting or receiving of the factual empirical content of expression but
also the elements of expression which may be novel, controversial or which involve creativity.55
Page 489 of [2014] 2 All SA 461 (GJ)
[100] The defendant submitted the following on this aspect or point: The Copyright Act is on all constructions meant
to bear a meaning which is the least destructive of free expression rights. That in this case, protection is
sought for a literary work consisting on a compilation, ie database from which an annual fixture list is printed
out, which has nothing meritorious about it. Its very purpose, according to the defendant further, is to inform
a wide public interested in South African football of the games to be played. That at the end of the day, the
fixtures are:
". . . the results of the efforts of the plaintiff in organising the league fixtures to be played. And it is for this very
purpose of organising the league fixtures to be played for the foremost league in South Africa that the plaintiff exists.
Its very purpose is to arrange the matches to be played by the leading football teams in South Africa and to inform
the public of the details of when and where each match is to be played."56
[101] That may be so. However, the defendant goes on to state the following:
". . . Once the interested public have been informed of the fixture lists to be played, the fixture list has served its
purpose. It is untenable that thereafter copyright should be abused so as to prevent the use of the disseminated
information by the public."57 (My underlining.)
[102] I do not think the defendant is justified to equate itself with members of the public in this sense. The
injunction to construe statutes consistent with the Constitution in my view means that where reasonably
possible the court is obliged to promote the rights entrenched by the Constitution. The court is obliged to
balance out the interests of the plaintiff as owner of the copyright against the claim of free expression for
purposes of determining the scope of the plaintiff's right to prevent the reproduction, adaptation of
information contained in the plaintiff's fixture lists, among others.58 In balancing the rights afforded by the
Copyright Act as against the imperatives of the Constitution in order to determine the scope of rights of
copyright, one must have regard to the purpose underlying copyright in compilations.
[103] The defendant further rubbishes the plaintiff's copyright infringement allegations by stating among others that
the plaintiff's claim of right is not as protected as was the case in Bosal Afrika (Pty) Ltd v Grapnel (supra); Payen
Components SA Ltd v Bovick CC59 and/or Board of Healthcare Funders v Discovery Health.60 It (defendant)
argued and submitted that in our present case, the fixtures or lists or the databases concerned and the
information contained in those databases do not constitute valuable property in themselves on an ongoing
basis, where the appropriation of the information in those databases would cause substantial harm. It
(defendant) reiterates several times that the use of the information contained in the databases and the
reproduction thereof in the "Sport Stake" game do not cause the plaintiff, in this case harm and that neither
does it do harm to the works
Page 490 of [2014] 2 All SA 461 (GJ)
in question which are of shortlived duration. In short, the defendant was saying that the plaintiff had
imparted information and the public at large, including itself in that definition of "public", are within their rights