substantial part of or make adaptations of the annual list and/or the weekly list and causes
them to be published on the defendant's internet website as part of its "Sport Stake" gambling
game offering. The Sport Stake gambling game involves the correct prediction of the outcomes
of several football matches. In particular, gamblers are required to predict the outcome of 12
predetermined matches drawn from, inter alia, South African professional soccer fixtures.
3.1.3
3.2
The defendant has caused to be published, its aforesaid unlawful reproductions and/or
adaptations on a weekly basis during the soccer season at various petrol stations and retail
outlets in connection with its "Sport Stake" gambling game offering.
Since about December 2007 to date, the defendant has published, in the manner aforesaid, a
reproduction and/or adaptation of a substantial part of the plaintiff's relevant annual and/or weekly list
to a similar extent.
Page 464 of [2014] 2 All SA 461 (GJ)
3.3
In the circumstances, the plaintiff:
3.3.1
is entitled, in respect of past infringement of its copyright, to payment of an amount calculated
on the basis of a reasonable royalty which would have been payable under the circumstances
by a licensee in respect of the plaintiff's copyright of 10% of the defendant's gross sales
earned in betting revenue in respect of its "Sport Stake" gambling game, from December 2007
to date of any interdict made in this action directing the defendant to cease reproducing and/or
making adaptations of any of the plaintiff's lists; and
3.3.2
is entitled to the deliveryup by the defendant of all infringing copies of the annual lists and the
weekly lists in its possession or control, as contemplated by section 24(1) of the Act; and
3.3.3
is entitled to an interdict, as contemplated by section 24(1) o f t h e A c t , t o r e s t r a i n t h e
defendant from any future infringements of the plaintiff's copyright in the annual list and the
weekly list; and
3.3.4
is entitled to additional damages from the defendant, as contemplated by section 24(3) of the
Act, of R5 000 000.
[4] The plaintiff sought the following prayers, to be specific:
4.1
An order declaring that the plaintiff's annual fixture lists and weekly fixture lists are each subject to
copyright protection as afforded by section 6 of the Act in favour of the plaintiff;
4.2
Payment of an amount calculated on the basis of a reasonable royalty which would have been payable
under the circumstances by a licensee in respect of the plaintiff's copyright work of 10% of the
defendant's gross sales earned in betting revenue in respect of its "Sport Stake" gambling game
offering, from December 2007 to the date of any interdict made in this action directing the defendant to
cease reproducing and/or making adaptations of any of the plaintiff's lists;
alternatively
4.3
An enquiry as contemplated by section 24(1B) of the Act, and payment thereupon of such further and/or
alternative amount as a reasonable royalty as is found to be due by the defendant to the plaintiff; and
4.4
Payment of R5 000 000, as contemplated by section 24(3) of the Act; and
4.5
Deliveryup of all infringing copies, reproductions or adaptations of all of the plaintiff's annual or weekly
lists in the possession or under the control of the defendant; and
4.6
An interdict restraining the defendant from infringing the plaintiff's copyright in the annual and weekly
lists of soccer fixtures by reproducing and/or making adaptations of the said lists or any part thereof in
any manner whatsoever; and
Page 465 of [2014] 2 All SA 461 (GJ)
4.7
Interest at the maximum prescribed rate a tempore morae to date of payment in full on:
4.7.1
any amount directed in consequence of prayers 4.1 or 4.2 above; and
4.7.2
the amount of R5 000 000, in consequence of prayer 4.3 above.
[5] In addition to a prayer for costs of suit, the plaintiff also asked for further and/or alternative relief.
[6] The parties agreed inter se that this trial be only in respect of the merits and that the rest of the issues be
postponed sine die. Their wish or request was granted.
[7] The parties were further ad idem that:
7.1
the plaintiff bears the onus to establish its reliance on copyright as well as the defendant's infringement
thereof;
7.2
since a licence as contemplated herein is a pactum non de petendo, t h e onus to prove its need or
necessity lies with the defendant; and
7.3
the plaintiff may not initially crossexamine on those aspects where the onus rests with the defendant
until the defendant had led its evidence whereupon or whereafter the plaintiff may decide whether or
not to lead further evidence in consequence of such defendant's evidence.