2.
The determination by the court below is set aside and substituted as follows:
"A
B
×
C × 3
100
Where:
A = the amount of time used by a radio station in any period to broadcast the sound recordings administered
by SAMPRA;
B = the total amount of time used by a radio station in that period to broadcast editorial content,
and
C = a radio station's net broadcasting revenue based on what is certified by its accountants and confirmed in
its financial statements.
'editorial content' is defined as content, including the repertoire, broadcast for entertainment, information or
interest of members of the public and shall not include broadcast time allocated to advertisements."
(Shongwe JA, Swain, Legodi and Mathopo AJJA concurred in the judgment of Navsa JA.)
For the appellant:
CE Puckrin SC and O Salmon instructed by Webber Wentzel, Johannesburg and Honey Attorneys, Bloemfontein
For the respondent:
I Miltz SC and CL Robertson instructed by Edward Nathan Sonnenbergs, Johannesburg and Matsepes Incorporated,
Bloemfontein
Footnotes
1
2
3
4
5
6
7
8
9
10
11
See para [18] of the report of the Advisory Committee of the Copyright Act, dated
5 November 1993.
S 29(1) provides:
"The judge or acting judge who is from time to time designated as Commissioner of Patents in terms of section 8 of
the Patents Act, 1978, shall also be the Copyright Tribunal (in this Chapter referred to as the tribunal) for the
purposes of this Act."
S 36 provides for appeals from the Tribunal to this Court.
SAMPRA was accredited as a representative collecting society in terms of reg 3(1)(a) of the Collecting Society
Regulations published under Government Notice No 517/06 to administer the right to receive payment of royalties in
terms of s 9A of the Act.
See discussion in para [5] of the report referred to in fn 1.
S 6(d) of the Act.
S 9A(2)(c).
S 9A(1) reads as follows:
"(a) In the absence of an agreement to the contrary, no person may broadcast, cause the transmission of or play
a sound recording as contemplated in section 9(c), (d) or (e) without payment of a royalty to the owner of the
relevant copyright.
(b) The amount of any royalty contemplated in paragraph (a) shall be determined by an agreement between the
user of the sound recording, the performer and the owner of the copyright, or between their representative
collecting societies.
(c) In the absence of an agreement contemplated in paragraph (b), the user, performer or owner may refer the
matter to the Copyright Tribunal referred to in section 29(1) or they may agree to refer the matter for
arbitration in terms of the Arbitration Act, 1965 (Act No 42 of 1965)."
GN 517 of 1 June 2006.
GN 517 of 1 June 2006.
OH Dean "Handbook of South African Copyright Law" 2012 at 155.
See para [20] of Oakdene.