National Association of Broadcasters v South African Music Performance Rights Association and another
[2014] 2 All SA 263 (SCA)
Division:
SUPREME COURT OF APPEAL
Date:
14 March 2014
Case No:
119/2013
Before:
MS NAVSA, JB SHONGWE JJA, MF LEGODI, RS MATHOPO and KGB
SWAIN AJJA
Sourced by:
P Zachia
Summarised by:
DPC Harris
. Editor's Summary . Cases Referred to . Judgment .
Intellectual property Sound recordings Copyright Rate of royalties payable to recording industry and performers for
use of sound recordings in broadcasts Correctness of determination by Copyright Tribunal in terms of the Copyright Act
98 of 1978 of the rate of royalties payable by commercial and public radio stations Where Copyright Tribunal was found
to have ignored relevant factors and evidence, court overturned decision and determined the rate based on available
evidence.
Editor's Summary
The appellant was the National Association of Broadcasters ("NAB"), a nonprofit organisation funded entirely by its
80 members who were participants in the South African Broadcasting Industry. While the members included all
television broadcasters, most commercial and public radio stations, community radio stations and signal distributors,
the present dispute only concerned 31 commercial and public radio stations. The first respondent, the South African
Music Performance Rights Association ("SAMPRA"), was responsible for collecting royalties for sound recordings on
behalf of its only member, the Recording Industry of South Africa ("RISA"), an industry body representing members
of the recording industry.
Legislative amendments to the Copyright Act 98 of 1978 ("the Act") during 2002, compelled commercial and public
radio stations to pay copyright royalties to the recording industry and performers for the use of sound recordings in
their broadcasts. The dispute in this case concerned the rate of royalties which broadcasters are required to pay.
The present appeal and the related crossappeal concerned the correctness of a determination by the Copyright
Tribunal in that regard.
Held The Act and the Performers' Protection Act 11 of 1967 recognises three kinds of copyrights involved in the
broadcast of a given piece of music, viz the rights of the composer in relation to the broadcasting of his work, the
rights of performers, and the owners of copyright in sound recordings. The rate of royalties to be paid by radio
stations to record companies is not prescribed. The Legislature chose to leave it to agreement between radio
stations and owners of copyright in sound recordings, failing which, arbitration or, as in the present case, where the
parties failed to agree on either a rate or referral to arbitration, determination by the Copyright Tribunal.
The dispute in this case was essentially between NAB and SAMPRA, concerning the reasonableness of the rate of
royalties the former should be paying the latter. The two parties differed on the formula to be used in determining
what was due.
Page 264 of [2014] 2 All SA 263 (SCA)
Subsequent to the referral and the crossreferral, the parties were at odds about the extent of the Tribunal's
jurisdiction, including the question whether it had the power to determine the date from which royalties were
payable. NAB therefore approached the High Court and obtained a declaratory order confirming the issues which
the Copyright Tribunal could determine in the dispute.
The parties adduced extensive evidence before the Tribunal. The present Court held that the Tribunal had
wrongly discounted such evidence. To the extent that the Tribunal's determination occurred without reference to
the very important evidence, the determination is liable to be set aside and substituted. The Court arrived at its
own determination of the rate of royalties payable and upheld the appeal to the extent the applicable formula had
to be amended.
The crossappeal was dismissed.
Notes
For Intellectual property see:
.
LAWSA Second Edition Replacement Volume (Vol 29)
.
Burrell TD Burrells South African Patent and Design Law (3ed) Durban LexisNexis 1999
Case referred to in judgment
Oakdene Square Properties (Pty) Ltd and others v Farm Bothasfontein
(Kyalami) (Pty) Ltd and others [2013] 3 All SA 303 (2013 (4) SA 539) (SCA)
Referred to
279