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[2014] ZAGPJHC 33
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National Soccer League T/A Premier Soccer League v Gidani (Pty) Ltd (10/48519) [2014] ZAGPJHC 33; [2014] 2 All SA 461 (GJ); 2014 BIP 426 (GJ) (28 February 2014)
REPUBLIC
OF
SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NO:10/48519
DATE: 28 FEBRUARY 2014
In
the matter between:
NATIONAL
SOCCER LEAGUE
t/a
PREMIER SOCCER
LEAGUE
.............................................
Plaintiff
And
GIDANI
(PTY)
LTD
................................................................
Defendant
J U D G M E N T
N F
KGOMO, J
:
INTRODUCTION
[1] The plaintiff instituted
action proceedings against the defendant for infringing, since
December 2007, and continuing to infringe, its copyright in the
annual and/or weekly soccer fixtures or lists, which infringement
is
as contemplated by section 23 read with section 6 of the Copyright
Act 1978 (Act 98 of 1978) as amended (“
the
Copyright Act
”
or
“
the Act
”) by using, without licence or
permission or authority from the plaintiff, its weekly and/or annual
fixture lists in its
Sport Stake betting game or business.
[2] The defendant has defended
the action.
[3] The specific allegations in
the plaintiff’s particulars of claim are that –
3.1
Since
the creation of the annual list in respect of the season commencing
August 2007 and the weekly list since December 2007, the
defendant
has infringed, and continues to infringe, the plaintiff’s
copyright in the annual list and/or the weekly list as
contemplated
by section 23, read with
section 6
of the
Copyright Act, by
virtue of
the following:
3.1.1
The
defendant is not the owner or the licensee of the copyright in any of
the lists.
3.1.2
The
defendant has unlawfully reproduced – and continues to
unlawfully reproduce – a 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
pre-determined matches drawn from
inter
alia
,
South African professional soccer fixtures.
3.1.3
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.
3.2
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.
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 delivery-up 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) of the
Act, to restrain the 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 000 000,00.
[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 R 5 000 000,00, as contemplated by section 24(3) of the Act; and
4.5
Delivery-up
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
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 000 000,00, 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
die 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
,
the
onus
to prove its need or necessity lies with the defendant; and
7.3
the
plaintiff may not initially cross-examine 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.
THE
PARTIES
[8] The plaintiff, National
Soccer League t/a The Premier Soccer League, is a
universitas
conducting its affairs, and having its principal place of business at
PSL Place, 2 Winchester Road, Jan Smuts Avenue, Parktown,
Johannesburg, Gauteng Province (“
the plaintiff
”).
[9] The defendant, Gidani (Pty)
Ltd is a registered private limited liability company, duly
incorporated as such in terms of the Companies Act, 2008, (Act 71 of
2008) as amended, with its principal place of business and
head
office situate at Gidani House, Stand 405, Halfway House Extension 2,
Old Pretoria Main Road, Halfway House (Midrand), Gauteng
Province.
[10] The defendant is the official National
Lottery operator.
APPLICABLE
PROVISIONS OF
COPYRIGHT ACT RELIED
UPON
[11] In terms of section 2 of the Copyright
Act 1978 (Act 98 of 1978) as amended (“
the
Copyright Act
”
or
“
the Act
”) –
“
2.
Works
eligible for copyright
.
(1) …,
the following works, if they are original, shall be eligible for
copyright -
(a)
literary
works;
(b)
musical
works;
(c)
artistic
works;
(d)
cinematograph
films;
(e)
sound
recordings;
(f)
broadcasts;
(g)
programme-carrying
signals;
(h)
published
editions;
(i)
computer
programmes.
(2) A work,
except a broadcast or programme-carrying signal, shall not be
eligible for copyright
unless the work has been otherwise reduced to
a material form.
(2A) …
(3)
A work shall not be ineligible for
copyright by reason only that the making of the work, or the
doing of
any act in relation to the work, involved an infringement of
copyright in some other work.
”
[12] Section 23 of the Act deals with the
infringement of copyright as well as the remedies therefor.
It
reads as follows:
“
23.
Infringement
.
- (1) Copyright shall be infringed by any person, not
being the owner of the copyright, who, without the licence of
the
owner, does or causes any other person to do, in the Republic, any
act which the owner has the exclusive rights to do or to
authorise.
(2) Without
derogating from the generality of sub-section (1), copyright shall be
infringed by any
person who, without the licence of the owner of the
copyright, and at a time when copyright subsists in a work -
(a)
…
(b)
sells,
lets or by way of trade offers or exposes for sale, or hire in the
Republic any article;
(c)
distributes
in the Republic any article for the purposes of trade, or for any
other purpose, to such an extent that the owner of
the copyright in
question is prejudicially affected; and
(d)
…
if
to his knowledge the making of such/that article constituted an
infringement of that copyright or would have constituted such
an
infringement if the article has been made in the Republic.
(3)
The copyright in a literary or musical
work shall be infringed by any person who permits a place
of public
entertainment to be used for a performance in public of the work,
where the performance constitutes an infringement of
the copyright in
the work : Provided that this subsection shall not apply in a case
where the person permitting the place of public
entertainment to be
so used was not aware and had no reasonable grounds for suspecting
that the performance would be an infringement
of the copyright.
”
[13] Action likely to be taken by the owner
of a copyright for infringement is governed by section 24
of the Act.
Those subsections relevant to this action we are dealing with are the
following:
Section 24 which reads as follows:
“
(1) Subject to
the provisions of this Act, infringement of copyright shall be
actionable at the suit of
the owner of the copyright, and in any
action for such an infringement all such relief by way of damages,
interdict, delivery of
infringing copies or plates used or intended
to be used for infringing copies or otherwise shall be available to
the plaintiff
as is available in any corresponding proceedings in
respect of infringement of other proprietary rights.
(1A) In lieu of damages the
plaintiff may, at his or her option, be awarded an amount calculated
on the basis
of a reasonable royalty which would have been payable by
a licensee in respect of the work or type of work concerned.
(1B) For the purposes of
determining the amount of damages or a reasonable royalty to be
awarded under this section
or section 25(2), the court may direct an
enquiry to be held and may prescribe such procedures for conducting
such enquiry as the
court considers necessary.
(1C) Before the owner of
copyright institutes proceedings under this section, he or she shall
give notice in writing
to the exclusive licensee or sub-licensee of
the copyright concerned of the intention to do so, and the exclusive
licensee or sub-licensee
may intervene in such proceedings and
recover any damages he or she may have suffered as a result of the
infringement concerned
or a reasonable royalty to which he or she may
be entitled.
(2) Where in an
action for infringement of copyright it is proved or admitted that an
infringement
was committed but that at the time of the infringement
the defendant was not aware and had no reasonable grounds for
suspecting
that copyright subsisted in the work to which the action
relates, the plaintiff shall not be entitled under this section to
any
damages against the defendant in respect of the infringement.
(3) Where in an
action under this section an infringement of copyright is proved or
admitted, and
the court having regard, in addition to all other
material considerations, to -
(a)
the
flagracy of the infringement; and
(b)
any
benefit shown to have accrued to the defendant by reason of the
infringement;
is
satisfied that effective relief would not otherwise be available to
the plaintiff, the court shall in assessing damages for the
infringement have power to award such additional damages as the court
may deem fit.
(4)
…”
[14] Section 25 of the Act deals with those
rights that exclusive licensees and/or exclusive sub-licensees
have,
which is not material here as the defendant is neither licensee or
sub-licensee.
[15] Section 9A deals with copyright
relative to sound recordings
vis-à-vis
artists
performing the works covered by copyright. The general
principles therein set out are of equal application to other
copyrights.
[16] Section 9A(3) is in my view important
and is hereunder set out in full:
“
(3) In the
event of any right to a royalty being assigned to any successor in
title, either by contractual
arrangement, operation of the law,
testamentary disposition or otherwise, any successor in title shall
be entitled to enforce such
right to a royalty against the person who
in terms of this section is obliged to pay or against his or her
successor in title.
”
COMMON
CAUSE FACTS
[17] It is common cause that the defendant
succeeded Uthingo (Pty) Ltd as the National Lotteries Operator
in
South Africa. Uthingo and the plaintiff had a contractual
relationship in relation to the former’s use or utilisation
of
the latter’s fixture lists and a royalty was being paid to the
plaintiff by Uthingo (Pty) Ltd (“
Uthingo
”) as
agreed.
[18] The plaintiff engaged the defendant at
the latter’s principal place of business in Midrand,
Johannesburg, Gauteng Province around December 2007 with a view to
re-negotiating similar or comparable terms for the defendant’s
use or continued use of its fixture lists without licence or
permission or authority. According to the plaintiff the negotiations
or talks were inconclusive and the defendant promised to revert to
them but never did. According to the defendant as gleaned
from
utterances by its counsel during the leading of evidence, there was
and is still currently no justification for a royalty
to be exacted
from it by the plaintiff for the former’s use of its football
or soccer fixture lists. After several engagements
a stalemate was
reached.
[19] The above situation culminated in the
plaintiff issuing, through its attorneys of record, Messrs
Werkmans
Attorneys, a letter of demand which is dated 5 September 2008.
[20] It is my considered view and finding
that the contents of this letter of demand needs to be reproduced
in
full herein, which I hereby do. The material parts thereof read as
follows:
“
Dear Sirs,
PREMIER SOCCER LEAGUE (PSL
)
1.
We represent the Premier
Soccer League, which instructs us as follows:-
1.1
each
year our client compiles, by its skill, labour, time, judgment and
ingenuity, a fixture list of football matches to be played
during the
year;
1.2
copyright
in our client’s fixture list vests in our client;
1.3
on
25 March 2008, you sent a proposal to our client regarding your use
of its fixture list. Your proposal is still under consideration
and
no final decision has been made on it by our client;
1.4
on 19 August 2008 you addressed a
letter to our client’s chairman, Dr Irvin Khoza, in which
you
stated, amongst other things, that ‘Gidani intends to include
PSL fixtures in Sport Stake
’
;
1.4
the
Sport Stake website, which is compiled by you, states that ‘the
Sport Stake fixture Lists [which you define as the soccer
fixtures
which players will bet on during the week] … ‘…
will be available at the National Lottery outlets
from a Monday.
It will also be possible to obtain these through the media such as
newspapers and TV’;
1.5
our
client has not authorised you to reproduce or distribute its fixture
lists in any manner or form;
2.
Any
reproduction, adaptation or distribution of our client’s
fixture lists by you, will constitute an infringement of our
client’s
copyright in its fixture lists.
3.
Our
client has instructed us therefore to demand of you, as we hereby do,
that by no later than 12h00 on Tuesday 9 September 2008,
you provide
our office with a written irrevocable undertaking that you will not,
in any manner or form, reproduce or distribute
our client’s
fixture lists without its written authority. You are
furthermore required, at the same time that you provide
your written
undertaking, to deliver to our office all copies in your or your
agents’ possession of our client’s fixture
lists
reproduced or adapted by you.
4.
If
you do not comply with the demand set out in paragraph 3 above, our
instructions are, without further delay, to approach the
Witwatersrand Local Division of the High Court, for the appropriate
relief against you, which will include a claim for damages
and costs.
5.
Our
client’s rights are reserved.
”
[21] The defendant’s response to the
above letter of demand was penned by its attorneys of record,
Messrs
Spoor and Fisher, on 9 September 2008. A full re-gurgitation of
its contents will in my view bring out its import
and context.
[22] It reads as follows insofar as the
material parts thereof are concerned:
“
Dear Sirs
South Africa:
Premier Soccer League (PSL) / Gidani (Pty) Limited – Fixture
Lists
We
advise that we act on behalf of Gidani (Pty) Limited. Your
correspondence dated 5 September 2008 has been forwarded to
us for
reply.
Our
client had determined that, as this is a business matter, there would
be no need to involve attorneys. Our client has
instructed us
to record that it is only pursuant to your client instructing its
attorneys to address a letter of demand to our
client that our client
has deemed it necessary to instruct Spoor & Fisher.
Our
client has instructed us that, in fact, in 2007, your client
approached our client with a view of developing a mutually beneficial
business relationship. On the basis of that approach, our
client determined to refrain from including PSL matches in our
client’s SportStake soccer pool. Our client had hoped
that it could enter into a strategic alliance with your client
along
the lines set out in its proposal forwarded to your client under
cover of our client’s correspondence dated 25 March
2006.
With that aim in mind, our client has had various meetings with your
client and has addressed reminders to your client,
all apparently in
vain as your client has, to date, not reverted to our client, either
accepting or rejecting our client’s
proposal.
We are instructed to respond to your
correspondence as follows:
1.
Ad
paragraphs 1.1 and 1.2
:
Our client denies that the fixture list has sufficient substance to
warrant being the subject of a work capable of copyright
protection.
The fixture list is common place, trite, trivial and our client
denies that copyright can subsist in the fixture list.
2.
However, and
notwithstanding the aforegoing, and as your client is asserting that
it is the copyright proprietor of your client’s fixture lists
and that the fixture list is compiled each year by your client’s
skill, labour, time, judgment and ingenuity you are requested to
advise us:
2.1 The name of
the individual/s who compiled the fixture list.
2.2
You
are required to furnish us with the name, date of birth and place of
residence of such individual/s.
2.3
Full
details as to how the fixture list is created.
2.4
Full
details of where the individual/s referred to in the previous
subparagraphs are employed. In the event that they are employed
by
your client, our client will require a copy of their appointment
letter.
3.
Ad
paragraph 1.3
:
Our client admits that it forwarded your client a proposal on 25
March 2008. However, the proposal was for a strategic
relationship between our respective clients to explore ways to
promote the development soccer in the Republic of South Africa and
to
market the game. Our client did not seek your client’s
authority to reproduce your client’s fixture list as:
3.1
our client has never intended
reproducing your client’s fixture list; and
3.2
our client denies that copyright
can subsist in the fixture list.
4.
Ad
paragraph 1.4
:
Our client admits that on 19 August 2008, it addressed further
correspondence to your client. However, our client
denies that
it has advised your client that our client intends using your
client’s fixture list. In fact, what our
clients stated
was that it intends to include PSL fixtures (PSL soccer games) in our
client’s SportStake.
5.
Ad
paragraph 1.6
:
Our client denies that it is reproducing your client’s fixture
list. Our client obtains details regarding the soccer
matches to be
included in the SportStake, amongst others, newspaper reports, the
AOL online website, the Football 365 website and
Sport24 website, to
name a few. This information has been obtained from the public
domain. Furthermore, should our client
determine to include PSL
soccer matches in our client’s SportStake our client will use
no more than 4 matches a week. Hence,
your assertion that our client
is reproducing your client’s fixture list is diametrically
opposed to the true situation.
6.
Ad paragraph 2
:
The fixture lists released by your client to the media (including but
not limited to the newspapers and wbsites) are released
in order to
enable members of the public (including our client) to be aware of
the soccer matches taking place during the course
of the soccer
calendar. In releasing these fixtures to the press and various
other publications, your client is authorising
the public to use the
fixture list and, therefore, even should your client’s
assertions regarding the placement of the fixtures
on our client’s
SportStake be correct and that this would constitute a reproduction
of your client’s fixture list (all
of which is denied by our
client) then our client contends that it is authorised to do so due
to the fact that your client has
released the fixture list to the
public as set out above.
7.
Ad paragraph 3
:
Notwithstanding the aforegoing, we have been instructed by our client
to furnish your client with an undertaking to the
effect that it will
not use any fixtures of PSL league matches prior to the end of the
month. The undertaking given, however,
is given on the basis
that our client expects your client to revert to our client regarding
the aforementioned business proposal.
All
our client has required from your client is the courtesy of a
response. With this in mind, our client suggests, once again,
that a meeting be held with your client as soon as possible in order
to establish whether or not it is possible to develop a mutually
beneficial business relationship with our client.
Our
client’s failure to deal with any of the assertions or
allegations contained in your correspondence under reply must not
be
regarded as an admission thereof and all our client’s rights
are reserved.”
EVIDENCE
LED
[23] The plaintiff led the evidence of two
witnesses originally, namely, Mr Derek Blanckensee and Prof
Ronald
“
Ronnie
” Schloss in support of the two primary
issues it relied upon, namely:
23.1
the
subsistence of copyright; and
23.2
its
(copyright’s) infringement.
It testified first because it bore the
onus
.
[24] The defendant initially called no
witnesses of its own in rebuttal of those two issues but later
called
two witnesses, Messrs Wiseman Ntombela and Sibusiso Simelane, in
support of its claim of alleged non-exclusive implied licence.
In rebuttal of this latter evidence the plaintiff re-called Prof
Ronnie Schloss and further called Ms Sisanda Qumsa.
EVIDENCE
OF MR BLANCKENSEE AND PROF SCHLOSS
[25] Both Mr Blankensee and Prof Schloss
confirmed that they were South African citizens for purposes
of
section 3(1)(a) of the Act. Both further confirmed that they
are and were also at all relevant times hereto, employees
of the
plaintiff when especially ownership of the copyright vesting in the
plaintiff in terms of section 21(1)(d) of the Act is
anything to go
by.
[26] They both confirmed the existence and
validity of the plaintiff’s Constitution. In Article
2 of
that Constitution it appears that the plaintiff –
“…
is a legal personality endowed with rights sand
duties distinct from the individuals who comprise it; has
perpetual succession
and is capable of owning property apart from its
constituent members, the clubs …
”
[27] Mr Blanckensee testified that he has
been employed by the plaintiff since November 2010 to date as
its
general manager : football. His duties entailed, insofar as
this case is concerned, to prepare the plaintiff’s
fixture
lists for soccer fixtures. His experience in the compilation of
fixtures started well before November 2010, from the times
he was the
president of the Southern Transvaal Football Association between 1987
and 1992. He also did the same job in his
capacity as the
general manager of Wits University Football Club between 1998 and
2006 as well as in this capacity as chief executive
officer of the
same club between 2006 and 2008.
[28] Prof Schloss in turn testified that he
had been the plaintiff’s chief operating officer since
2006. He
is currently semi-retired. Just like Mr Blanckensee, he also
had been involved in soccer administration virtually
his whole adult
life. He had been involved in the preparation of fixture lists
since, at the earliest, the beginning of the
2007 soccer season which
commenced in August that year. He did the same for the seasons
2008 and 2009. The actual compilers
of the fixtures at plaintiff’s,
Messrs Dan Leboa and Ace Ngcobo, during the 2008/2009 seasons
reported to him. He supervised
the preparation of the fixtures,
generally keeping an eye in that regard. During the season commencing
August 2010 he, along with
his son Jonathan as well as Messrs Van Wyk
and Siem, were all jointly authors of the fixture lists. All
the abovementioned
persons were employed by and at plaintiff.
All were South African citizens except Mr Siem who, although he was a
permanent
resident of South Africa, was nevertheless a foreign
national employed on contract by the plaintiff.
[29] Both Messrs Blanckensee and Prof
Schloss confirmed in evidence that the fixture lists in issue were
of
two kinds : annual lists and weekly lists. The annual lists was
prepared at the beginning of the season, which was a composite
list
of all fixtures expected for that season, which started in August of
a particular year and ended in May the following year.
The weekly
list was published each week during the season. It is
essentially the fixtures for the week in question appearing
in the
relevant week contained in the annual list, together with any changes
to those fixtures which may have become necessary
since the
publication of the annual list.
[30] Mr Blanckensee further confirmed that
he was responsible for each weekly list since his employment
with the
plaintiff in November 2010 to date, and for each annual list from the
season commencing August 2011 to date. Prof
Schloss was overall
in charge, in a supervisory capacity, of the annual lists for the
seasons commencing August 2007, August 2008
and August 2009 together
with all weekly lists produced for those seasons as well as being the
co-author of the annual list for
the season commencing August 2010 as
well as all the weekly lists thereunder. According Prof Schloss
further, the authors
of the lists from August 2007 to the season
commencing August 2009 were Messrs Dan Leboa and Ace Ngcobo who, as
indicated above,
are South African citizens and employees of the
plaintiff. According to Prof Schloss, Ace Ngcobo regularly needed
more supervision
and guidance by him as he was not as experienced as
Dan Leboa.
[31]
Prof Schloss identified the annual lists
compiled and published under his supervision for the seasons
August
2007, August 2008 and August 2009.
[1]
He also identified to this Court the annual list for the season
August 2010 of which he was a co-author.
[2]
The weekly lists he identified appear in Exhibit “E” at
pages 79 to 197.
[32]
Mr Blanckensee identified an extract from
the annual list for the season August 2010 to May 2011 of
which he
was a co-author
[3]
as well as a weekly list for that period.
[4]
He also identified an extract from the annual list for the season
August 2013
[5]
as well as a weekly list for that period.
[6]
[33] Both testified to the manner in which
the fixture lists were prepared: IT went like this :
Since the
season commencing August 2007, a computer programme had been used in
the preparation of the fixture lists. Mr Blanckensee
was the
writer of this programme. It was called “
Fixtures
”.
It was one of the three programmes he created comprising a suite
called “
soccer software
”. These programmes
were used or utilised at plaintiff. As Mr Blanckensee pointed out,
although he was not employed
by the plaintiff prior to November 2010,
he was nevertheless called in by the plaintiff now and then since at
least August 2007
to assist those preparing the fixture lists with
the use of his “
fixtures
” programme. Consequently,
so testified Mr Blanckensee, even though he did not himself compile
the fixture lists during that
period, he nevertheless knew what the
compilers were doing as they used his brain child.
[34] Before “
fixtures
”
came into use the fixture lists were prepared differently according
to these two witnesses: Mr Blanckensee stated
that they were
done on “
bits of paper
”. According to Prof
Schloss “
a large piece of paper
” was utilised to
prepare the fixtures on, in addition to a computer programme. The
advent of “
fixtures
” only served to streamline the
process. The programme was aimed at aiding in the presentation of the
fixture lists and to
enable corrections to be done more easily to the
fixtures comprising it. It did not itself produce fixture lists by
imputing data.
It was used as a tool to assist in the task of
presenting the lists. This process was repeated or done each football
year.
During the 2012/2013 season Mr Blanckensee wrote a
document titled “
fixture planning process
” to
further facilitate the process.
[35] Prof Schloss confirmed that the process
contained in the “
fixture planning process 2012-2013
”
was in general the process which was followed prior to Mr
Blanckensee’s arrival at plaintiff. He indicated that although
no public draws were conducted during those previous years, the
principle detailed in the “
fixture planning process
2012-2013
” document was followed and that some computer
programming process similar to Mr Blanckensee’s software was
also used.
[36] These two witnesses’s testimony
corroborated each other in all respects.
[37] Mr Blanckensee expatiated on the
“
fixture planning process
” 2012-2013 as entailing
the following:
37.1 An overall process consist of
three distinct stages: first, an overall schedule containing fixture
block dates;
second, a refinement of the block dates through an
extensive consultation process; and third, a random draw and the
application
of the “
fixtures
”
software to produce an annual list.
37.2
In
the first stage, according Mr Blanckensee, a white board
[7]
was used. According to Prof Schloss during his times previously no
white boards were used; however, the same information as that
appearing in the white boards was presented on pieces of paper
stapled together to form one big piece.
37.3
What
both witnesses agreed on is that the first step was aimed at blocking
out certain dates on which fixtures could not be played,
such as
Fifa-sanctioned match dates, CAF match dates and certain public
holidays like Christmas Day for example. Thereafter certain
Cup
competition dates like the MTN 8, Telkom Knock-out, Nedbank Cup and
all their qualifiers had to be blocked out. Mostly the
Cup
competitions and their qualifiers required a number of weekends as
well as mid-week fixtures.
37.4
At
the end of the above process the remaining fixture dates would be
used to schedule Absa Premiership games.
37.5
These
fixture weekends are called “
blocks
”
and normally 30 are required for the Absa Premiership.
37.6
This
case revolves around the Absa Premier League fixtures.
37.7
The
“
fixtures
”
programme was used to mechanically allocate thirty (30) blocks of
fixtures one after the other with no consideration for
anything.
37.8
The
fixture blocks arrived at by the process this far are then converted
into spreadsheets for purposes of the consultation process,
using the
Excel computer programme. Such consultation process entails a
to-and-from interaction with the South African Football
Association
(“
SAFA
”)
(soccer controlling body in South Africa), sponsors, broadcasters and
other affected stakeholders to ascertain their individual
preferences. During this consultation process, at times a revision of
the previously arrived at fixture blocks take place.
37.9
Thereafter
the revised fixture blocks go back to plaintiff’s management
for approval and then to plaintiff’s executive
committee for
verification. Other revisions can take place during this process.
37.10
Individual
fixtures within the blocks need then to be arrived at. During this
phase the teams or clubs themselves are consulted
with a view of
obtaining their inputs. Those inputs may include preferred venues,
preferred kick-off times and whether the fixture
is a day-time or
night one. These inputs or preferences are assessed in the
light of broadcasting times and requisites. A
balancing act must be
done by those involved in the compilation to ensure fairness to all
concerned. What is important is that
the compilers of the lists are
not beholden to what those giving inputs want or wish for. Then
follows the fixture draw process.
[8]
Part of this entails the application of the English Football
Association formula of identifying what is called “
opposites
”.
Where teams are scheduled or allocated as “
opposites
”
they should not or will not play “
at
home
”
together in the same block. This process of identifying “
opposites
”
is done manually. The allocation of “
opposites
”
is required where, for example, two teams share the same venue
[9]
or for other reasons.
[10]
The idea is to produce a pairing of teams as “
opposites
”
available for a random draw followed by a draw for the individual
matches. Thereafter the plaintiff will attempt to
accommodate
the teams’ inputs or preferences in terms of weekends and
weekdays, time of day or night, etc. while also taking
into account
other stakeholders’ requirements, such as those of
broadcasters, while all the time striving to ensure fairness
to all
concerned.
37.11
It
is at this stage, just prior to the random draw, that the “
fixtures
”
programme or software is used: Team names, block dates, special dates
and other relevant considerations are fed into the
computer.
After the software had captured the outcome of the above process
(random draw) the teams’ and broadcasters’
preferences or
inputs are fed into the system. Then follows an extensive process of
manual checking for anomalies such as for example,
matches being held
too close to one another such that one team is required to play
another team too soon after another match thus
affording it
insufficient rest time or double-booking of venues or over-use of
venues to mention a few as examples. Any anomalies
are resolved
manually.
37.12
The
fixtures are then forwarded to the broadcaster(s) for perusal and
further inputs. Such inputs may entail the availability
of its
resources such as broadcasting trucks and satellite bookings; the
fact that the Absa Premiership game clashes with its already
scheduled European Champions League fixture or that the venue of a
fixture is not conclusive for a night or rainy-day game due
to the
absence of adequate floodlights. All these requirements must be
addressed by dealing with them manually and effecting changes
to the
fixture lists in the computer software where necessary.
37.13
The
teams then come up with their further inputs, followed by the
broadcasters having a re-look at the fixtures if they have changed
between then and their last peek at them.
37.14
By
the exercise of “
skill
and judgment
”
the annual lists are then produced.
37.15
The
weekly lists are then produced. Weekly lists are partly a
confirmation of the fixtures appearing in the annual lists. However,
they also serve to incorporate any supervening changes that might
need to be effected at that stage, i.e. weekly. Such changes
may be
occasioned as a result of changes requested by the clubs for reason,
say, of a stadium no longer being available; or for
logistic reasons
such as the team playing elsewhere in a different competition –
as was the case in the near past where Orlando
Pirates had to play
African Champions League game in the Democratic Republic of Congo and
Egypt. It may be the result of
a request from the plaintiff
itself, such as where a pitch at a scheduled stadium is not in an
acceptable state, say after the
stadium was used in a political rally
or a music festival.
37.16
Any
such changes are approved by the plaintiff’s football
departments and the weekly lists are issued.
[38] Prof Schloss testified further that the
process of fixture list compilation is a laborious one that
takes
many hours and/or weeks. The plaintiff held extensive
consultations with clubs, sponsors and broadcasters so as to
achieve
the balance and fairness-to-all stated hereinbefore. The
process is not easy as everybody wants something that suits
him or
it. Each fixture in each block must be gone through in order to
achieve this. Furthermore, the process is not “
mechanical at
all
”. It needs a lot of thought, hard work,
innovativeness and discretion. At times there is a need to liaise
with rugby
authorities whenever the bigger rugby stadiums are
required.
[39] Both witnesses testified to the
discretionary nature of the preparation of the fixture lists. Prof
Schloss in particular confirmed that it was totally impossible simply
to carry over the previous season’s fixture list into
the
following soccer season. The reason can be for example, that
the dates differ as a consequence of the problems introduced
by the
Gregorian calendar, teams may not be the same as some of them could
have been relegated and others promoted from lower divisions
during
the previous season, there may be new tournaments introduced or
others discontinued. Mr Blanckensee agreed with Prof Schloss:
He made
mention of Fifa dates changing, actual dates of the months not being
the same and so on. Both agreed in their testimonies
that each year’s
list was always new. There is no question of copying from past lists.
[40] The name of the league, the number of
teams in the league, the number of times the teams play each
other,
the earliest and latest allowable kick-off times and the preferred
kick-off times are some of the additional data that must
go into the
mix when the fixture list is compiled.
[41] Cross-examination of these two
witnesses was long and incisive. However, at the end of it all, their
testimonies remained intact. However, the defendant’s
counsel raised a number of issues during cross-examination that
need
to be mentioned in this judgment. Among others he put it to the
witness that:
41.1
there
was no seeding of teams and no assessment made of their relative
strengths at any time;
41.2
the
clubs were the choosers of the venues and the plaintiff only checked
that the grounds are of acceptable standard;
41.3
the
business of the defendant was not the reproduction of fixture lists
but only selected games for its Sport Stake game;
41.4
the
witnesses could not say whether the defendant consulted other sources
than the plaintiff’s fixture lists in compiling
its Sport Stake
games;
41.5
the
formula was developed by the English Football Association and that it
was part of the operation of the software;
41.6
the
sponsors of cup competitions decided or fixed the dates of the final
and the plaintiff then is compelled to work backwards in
order to
accommodate the other fixtures in that competition;
41.7
the
Professional Soccer League (the plaintiff’s league) is the
showpiece of South African professional football and forms
an
important part of the lives of ordinary South Africans;
41.8
the
unreliability of the annual fixture lists is such that weekly lists
are used to correct anomalies;
41.9
the
fixture lists are usually out there in newspapers and also advertised
on bill-boarded in taverns as a means of disseminating
them as widely
as possible, with a multiplicity of interest groups freely using them
without recriminations from the plaintiff;
thus they being in the
public domain;
41.10
no
marketing agreement was required or necessary before the defendant
can use or utilise the plaintiff’s fixture lists;
41.11
Prof
Schloss was not authorised or permitted by the Chief Operations
Officer of the plaintiff to engage in the compilations of the
lists.
[42] There were answers to the above
questions as well as to others which in my view precipitated a state
of affairs after the witness’s testimonies that their versions
remained unshaken.
[43] The witnesses were adamant that there
were no “
givens
” in the process of compiling the
fixture lists. Mr Blanckensee further dismissed suggestions that
blocks of fixtures could
not be manipulated, within constraints, to
make the league exciting. He insisted that there were times when
broadcasters’
preferences were not accommodated to maintain
peace amongst the plaintiff’s clubs.
[44] It is the plaintiff’s
submission that despite many constraints – some fixed like
Christmas and some public holidays and others variable like Cup games
– there remains a very large creative margin to the
fixture
compiler in the preparation and finalisation of each annual list. It
further submitted that the manner in which that creative
margin is
interpreted to and applied in the annual list – taking into
account the many and varied and often competing interests
of the
clubs and stakeholders – give rise to the originality of the
fixture list as a literary work in which copyright subsists.
The
weekly list also has copyright attaching to it as it is also an
original literary work. According to the plaintiff further,
should
the weekly fixture list be a pure copy or extract of the relevant
portion of the annual fixture list, i.e. where no changes
to the
annual list have not been effected, it then remains an original
literary work to the same extent as that portion of the
annual list
is an original literary work.
[45] However, should it consist of the
relevant portion of the annual list after changes have been effected
due to supervening considerations, it will remain an original
literary work to the same extent as the original annual list, save
that it may contain additional elements of originality to the extent
of any of those changes.
[46] Plaintiff further contended that since
it was the owner of the copyright by virtue of its being the
employer
of the various authors of the fixture lists it is entitled to
protecting and that since the defendant had previously published
and
is still publishing to date in an ongoing manner, despite demand that
it stops doing so or until such time that it regularises
the
situation by agreeing to pay for it, the plaintiff should succeed in
its claim.
EVIDENCE
OF THE OTHER WITNESSES
[47] Ms Susanda Qumze’s evidence did
not advance either party’s case. She was a secretary
at
plaintiff whose duty entailed sending weekly lists to people or
instances on a mailing list at plaintiff’s offices. The
defendant was on that mailing list. What she did was a continuation
of what her predecessor, one Ms Thwala, did before her.
[48] Mr Wiseman Ntombela started work at the
defendant in November 2007 as a brand manager for, among
others,
Sport Stake, which was launched in that month. He stated that that
first Sport Stakes game did not include the plaintiff’s
game.
[49] During August 2008 he was instructed by
his employers to include two PSL games or fixtures for a
Sport Stake
game, which he did. He was then inexplicably told to desist from
using plaintiff’s fixtures but without explanation
again
ordered to use six such fixtures. On his own initiative he approached
Zanele Thwala at the plaintiff to place him on the
mailing list,
which the latter did. He is presently employed at the South African
Broadcasting Corporation (“
SABC
”). Before
joining the SABC he owned or ran a tavern in Soweto where fixture
lists of the plaintiff were openly displayed.
His clients used the
fixtures to play the Sport Stake.
[50]
He was referred by the counsel (defendant’s)
leading him to four draws, namely, numbers 145,
188, 184 and 185.
[11]
[51] The
modus operandi
he followed
was first, to gather together all the fixtures of a particular day
from a number of websites. From the web-pages
he printed out
the fixtures of the relevant leagues from which he was to make his
twelve selections. He would then check
the fixtures on the
various websites, including the plaintiff to verify the home and away
teams and the kick-off times for instance.
He confirmed that
the pages in respect of the four draws mentioned above were the
defendant’s records that he could locate.
He had never
met Ms Thwala face to face and had asked to be placed on the
plaintiff’s mailing list as he wanted to receive
data “
from
the horse’s mouth
”. He stated that he thought
there existed an agreement between the plaintiff and his employer to
use the former’s
fixture lists. He was not aware of any
negotiations that may have been underway between them then and now.
[52] Mr Sibusiso Simelane is a manager at
the defendant who succeeded Mr Ntombela when the latter resigned.
He
is currently the branch manager at the Sport Stake division. He
testified that he grew the Sport Stake game to where it is today
where it generates between R240 and R255 million per annum.
Retailers of Sport Stake coupons as well as those who cashed
winning
bets received 6.1% commission for each of the two options, otherwise
his testimony echoed that of Mr Ntombela.
[53] He stated during cross-examination that
in addition to the PSL game fixture list he received and
utilised in
the compilation of the Sport Stake he also used other websites.
RELEVANT
LEGAL PRINCIPLES INVOLVED
[54] The
Copyright Act
(“
the Act
”)
protects certain defined classes or categories of works provided that
they meet certain conditions. The starting point
is for one to
establish whether the item over which copyright is claimed is
eligible for copyright.
[55] The plaintiff contends that its fixture
lists are literary works within the meaning of section 1(1)
of the
Act.
[56] The material part of the definition of
“
literary work
” in section 1(1) of the Act reads
as follows:
“’
Literary
work’ includes irrespective of literary quality, and in
whatever mode or form expressed –
(g)
tables
and compilations, including tables and compilations of data stored or
embodied in a computer or a medium used in conjunction
with a
computer;
but
shall not include a computer programme.
”
[12]
[57]
Coppinger
and Scone James on Copyright
[13]
describes what constitute a table or a compilation as follows:
“
A
dictionary definition of a table in an arrangement of numbers, words
or items of any kind, in a definite and compact form, so
as to
exhibit some set of facts, or relations, in a distinct and
comprehensible way. A dictionary definition of the verb ‘to
compile’ is to construct a written or printed work out of
materials collected from various sources. Whilst the two
terms
clearly overlap, and the term ‘compilation’ is often used
in this work to cover both the essential characteristic
of a table
lies in what determines the arrangement between the items contained
in the table, that of a compilation lies in the
gathering together of
the items … As a matter of terminology, a data-base will
almost inevitably also be a table or compilation.
But a table of
compilation requires that there has been some tabulation or
compiling, respectively. The mere coming together of
items will not
be enough … The items which are arranged together in a table
or assembled in a compilation may, individually
be entitled to
copyright; such individual copyright remains independent of the
separate copyright in the table or compilation.
”
[58] From the above definitions it is clear
that tables and compilations include databases.
[59]
The European Community have adopted a
so-called “
Council
Directive on the Legal Protection of Databases
”.
[14]
This database directive broadly defines a database as –
“…
a
collection of independent works, data or materials arranged in a
systematic methodical way and individually accessible by electronic
or other means.
”
[15]
[60]
The authority, Dean :
Handbook
of South African Copyright Law
[16]
states as follows:
“
This
definition is a broad one, and comments itself as a suitable
description of what is generally accepted as constituting a
database.
Computer programmes used in the manufacture or
operation of databases are specifically excluded from protection
under the database
directive and this approach corresponds with the
definition of ‘literary work’ in the South African Act.
”
REQUIREMENT
OF ORIGINALITY
[61]
Original literary works, which include
tables and compilations, are eligible for copyright protection
in
terms of section 2(1)(a) of the Act. Such copyright protection
vests initially in its author or authors
[17]
but, where the work in question has been made “…
in
the course of the author’s employment by another person under a
contract of service or apprenticeship …
”,
that other person shall be the owner of the copyright subsisting in
the work.
[18]
[62]
“
Original
”
or “
Originality
”
is not defined in the Act. The Supreme Court of Appeal
interpreted the term(s) in its acceptance of the ruling in
CCH
Canadian Ltd v Law Society of Upper Canada
[19]
in
Haupt
t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and
Others.
[20]
The first-mentioned case deals with the terms in the following
manner:
“
[A]
n
original work must be the product of an author’s exercise of
skill and judgment. The exercise of skill and judgment required
to
produce the work must not be so trivial that it could be
characterised as a purely mechanical exercise. While creative
works will by definition be ‘original’ and covered by
copyright creativity is not required to make a work ‘original’
.”
[63]
Under certain circumstances, extensive
effort in making a compilation may be enough to render it original,
even where there may be less skill involved. Accordingly, there
is merit in the submission (by plaintiff) that where enough
effort
has been put in compiling a work, that is sufficient to make the work
original and susceptible to copyright protection.
As stated in
Bosal
Africa (Pty) Ltd v Grapnel (Pty) Ltd and Another:
[21]
“
It
was further argued that there was no ‘originality’
displayed in compiling the list of numbers in the plaintiff’s
price list. It may not have required a great deal of judgment to
develop and list all the parts, but it certainly required a great
deal of effort to compile the list of numbers, in the same way as
compiling a street directory. Such work and effort the
courts
will protect. (Copeling : Copyright Law at 68-69.)
”
[64]
Equally, where a directory had been compiled
of users of telefax equipment by means of obtaining lists
of
purchasers of such equipment from distributors and also by canvassing
such users telephonically, it was accepted that copyright
subsisted
in the directories thus produced.
[22]
Similarly, where the Practice Code Numbering System (PCNS) allots
numbers or codes to healthcare providers in South Africa
– and
the PCNS comprises a set or compilation of numbers or codes based on
the provider’s personal particulars and
preferred payment
method – it has been held that the PCNS was an original
literary work in the form of a compilation in which
copyright
subsisted.
[23]
[65]
In English law copyright was extended even
more liberally. The learned authors Cornish, Llewelyn
&
Aplin
[24]
put it as follows:
“…
copyright has been allowed in such mundane
compilations of information as a timetable index, trade catalogue,
examination papers,
street directories, football fixture lists, a
racing information service and the listing of programmes to be
broadcast …
”
[66] The learned authors go on to point out
the following at 11-09:
“
The
strictly limited level of ‘original’ achievement that is
required in order to attract literary copyright can be
explained in
two ways. First, it reduces to a minimum the element of subjective
judgment (and attended uncertainties) in deciding
what qualifies for
protection. Secondly, it allows protection for any investment of
labour and capital that in some way produces
a literary result:
this is true equally of the compiler of mundane facts and of the
deviser of a football pool form whose
real effort is in the market
research determining the best bets to combine.
”
[67] The above talk to the requirements of
section 2(1)(a) of the Act which decrees that for copyright
to
subsist in a work, that work must fall within the definition of “
a
literary work
” and be “
original
”.
[68]
Whether an alleged work is a proper subject
for copyright protection involves an objective test, both
in respect
of originality and the work itself.
[25]
How much skill or labour is necessary for copyright to attach to the
work depends upon the facts of each particular case.
[26]
[69]
The court sounded a word of caution in
Occular
Sciences Ltd v Aspect Vision Care Ltd
[27]
when it stated the following:
“
A
court … has to exercise a value judgment on whether the
material in which copyright is claimed constitute a ‘work’
or is too trivial to merit protection. Once it has decided that a
‘work’ has been created, the further enquiry is whether
it is of so commonplace a nature that it does not attract copyright.
This is an objective test but a court must also consider what
the
consequences would be of awarding copyright to a particular work.
”
OWNERSHIP
OF COPYRIGHT
[70] As regards ownership of a copyright,
where reliance is placed on section 21(1)(d) of the Act, i.e.
where
it is alleged that the plaintiff is the owner by virtue of the fact
that the work was made by the author under a contract
of service or
employment with the plaintiff, as is the case in this case, it is
sufficient if there was –
“
some
form of contract even if it were an implied or tacit one between the
applicant and its staff or employees.
”
[28]
Failing
that, section 26(3) of the Act provides that where the literary work
is anonymous or pseudonymous and was first published
in the Republic
(RSA) and that a name purporting to be the publisher appeared on
copies of the work as first published, then, unless
the contrary is
shown, copyright shall be presumed to exist in the work and the
person whose name so appeared shall be presumed
to have been the
owner of the copyright at the time of publication.
[29]
[71] The two main witnesses for the
plaintiff herein, Mr Blanckensee and Prof Schloss had valid contracts
of service with the plaintiff which were never disputed by the
defendant.
[72]
Where only part of a work is claimed for
copyright the law does not disallow such a claim. Originality
still remains the key concept. The claimant must however
clearly identify that part of the work for which the copyright is
claimed.
[30]
REPRODUCTION
OF WORK WITH COPYRIGHT ATTACHING
[73]
Copyright is infringed by anybody who, not
being the owner or not holding a licence from the owner,
does or
causes another to do in the RSA any of the acts restricted to the
owner
[31]
or utilises same without consent or authority. In the case of a
literary work, such restricted acts include the reproduction
of the
work in any form,
[32]
the publication of the work if hitherto unpublished
[33]
and the making of an adaptation of the work.
[74]
The word, “
reproduction
”
as used in the Act includes “...
a
reproduction made from a reproduction of the work …
”.
[34]
It therefore makes no difference in an action for infringement of
copyright whether the work reproduced is an original or
a copy
thereof. A copy of either is a reproduction for purposes of
infringement.
[75]
There is a fundamental difference between
“
use
”
and “
reproduction
”.
The former is not an infringement of copyright, whereas the latter
is. This distinction was well illustrated in Copinger
and Skone James
in their work,
Copyright
[35]
as
follows:
“
A
person may therefore
use
a
work such as a directory to contact the listed names as many times as
he wishes. If however, in the course of doing so or
afterwards
he writes down or makes some other record of the substantial amount
of the information obtained from the plaintiff’s
work, then he
is liable to infringe.
”
[36]
[76]
The issue relating to computers need to be
clarified. When a computer has been used to produce the
work in
question, our law draws an important distinction between the work as
being “
computer
generated
”
or “
computer
aided
”
or “
computer
assisted
”.
[37]
A work is regarded as “
computer
generated
”
if –
“…
it
was created by a computer in circumstances where there is no human
author of the work. If there is a human author, the work is
computer
assisted and not computer generated.
”
[38]
A computer assisted work is one where the work is –
“…
made
by an individual using a computer as a tool or instrument. In a
computer assisted work, the computer in essence plays
the role of a
sophisticated writing or drawing instrument.
[39]
[77]
Reproduction or copying for purposes of
section 23 is satisfied whenever there has been a substantial
copying
of the work in question.
[40]
By “
substantial
”
is meant that –
“…
quality
not quantity takes the test. It has repeatedly been held that
‘substantial’ in this context or connection
relates much
more to the quality of what has been taken than to the quantity …
Thus, if so much is taken that the value
of the original is sensibly
diminished, or that the labours of the original author are
substantially, and to an injurious extent,
appropriated by another,
that is sufficient, in law, to constitute a piracy
pro
tanto
.
In
deciding questions of this sort, regard must be had to the nature and
objects of the selection mode, the quantity and value of
the
materials used, and the degree to which the use may prejudice the
sale, or diminish the profits, direct or indirect, or supersede
the
objects of the original work. It may be relevant to consider
whether there has been an
animus
furandi
on
the part of the defendant in the sense of an intention on the part of
the defendant to take for the purposes of saving himself
labour.
Many mixed ingredients enter into the consideration of such
questions. In short, the question of substantiality is
a matter of
degree in each case and will be considered having regard to the
circumstances. Generally, it is not useful to
refer the
particular decisions as to the quantity taken.
”
[41]
[78] The authors of the latest issue of
Copyright put it as follows at 7-28:
“
The
test (for ‘substantial part’) has been put in a number of
similar ways. Has the infringer incorporated a substantial
part of
the independent skill, labour, etc contributed by the original author
in creating the copyright work? Has there been
a substantial
appropriation of the independent labours of the author? Has
there been an appropriation of part of the work
on which a
substantial part of the author’s skill and labour was
expended? Has there been an over-borrowing of the
skill, labour
and judgment which went into the making of the claimant’s work?
Has the defendant made a substantial use of
those features of the
claimant’s work in which copyright subsists?
”
[79] In the 16
th
Edition of
Copyright at 7-30, page 441 the authors continue to expatiate on the
meaning of the expression “
substantial
” copying as
follows:
“
The
quality or importance of what has been taken is much more important
than the quantity. The issue thus depends therefore not
just on the
physical amount taken, but on its substantial significance or
importance to the copyright work, so that the quality,
or importance,
of the part is frequently more significant than the proportion which
the borrowed part bears to the whole …
Quality and importance
must therefore be understood in terms of the features of the work
which made it an original in the first
place. It follows that
the quality relevant for the purposes of substantiality in the case
of a literary work refers to the
originality of that which was been
copied.
”
[80]
As confirmed in several judgments,
[42]
in general terms, what is worth copying is
prima
facie
worth protecting. In the
Payen
Components
case (
supra
)
the Appellate Division, as it then was, concluded that copyright
existed in the plaintiff’s
Payen
Code
”
which was a code consisting of five digits, the first two whereof
being letters and the other two, numbers, and that the
defendant, who
had used the code for identifying and listing gaskets in South
Africa, had copied it and had infringed the plaintiff’s
copyright in it.
[43]
English law follows a similar approach.
[44]
[81]
Where the literary work consists of multiple
entries however, such as the directory of telefax users
which was the
subject of the proceedings in the
Fax
Directories
case,
the question would be whether the owner of the copyright had proved
the necessary element of “
substantial
copying
”.
In that case, the directory consisted of 11 000 entries of which the
applicant had shown only 28 or 29 instances
of copying. This the
applicant did by putting into evidence only the fictitious entries
deliberately placed by the applicant into
the directory so as to
check more easily whether copying had indeed occurred or to put it
simply, to trap prospective copiers.
The respondent therein argued
that this limited number of instances of copying shown refuted
suggestions of wholesale copying.
The court quoted with approval the
following passage from
Ladbroke
(Football) Ltd v William Hill (Football) Ltd
[45]
which passage has been referred to and quoted with approval by
Corbett JA (as he was then) in
Galago
Publishers (Pty) Ltd and Another v Erasmus
[46]
and
by Harms JA (as he was then) in
Biotech
Laboratories (Pty) Ltd v Beecham Group Plc and Another
:
[47]
“
If
he does copy the question whether he has copied a substantial part
depends more on the quality rather than the quantity of what
has been
taken. One test may be whether the part which he has taken is
novel or striking, or is merely a common-place arrangement
or
ordinary words or well-known data. So it may sometimes be a
convenient short-cut to ask whether the part taken could by itself
be
the subject of copyright. But in my view, that is only a
shortcut, and the more correct approach is first to determine
whether
the plaintiff’s work as a whole is ‘original’ and
protected by copyright, and then to enquire whether
the part taken by
the defendant is substantial. A wrong result can easily be
reached if one begins by dissecting the plaintiff’s
work and
asking, could section A be the subject of copyright if stood by
itself, and so on. To my mind, it does not follow that
because the
fragments taken separately would not be copyright, therefore the
whole cannot be. Indeed it has often been recognised
that if
sufficient skill and judgment have been exercised in devising the
arrangements of the whole work, that can be an important
or even
decisive element in deciding whether the work as a whole is protected
by copyright.
”
[82] Just like in the
Fax Directories
case (
supra
) at 178E-F, the court in the above case
concluded as follows at 178F-I:
“
On
the facts of the present case the inference is inescapable that the
28 or so instances mentioned above were copied directly or
indirectly
from the applicant's works, most of them probably from the first
edition but at least one from a subsequent edition.
It is
inconceivable that the respondent could only have selected these 28
or 29 cases to copy. The probabilities are overwhelming
that there
must have been many more entries that were simply copied.
Mr
Levinsohn was quite right when he argued that it is impossible to
determine what the extent of the copying was. I do not think,
however, that it is necessary for the applicant to show the exact
extent of the copying, provided that he does show that the copying
was not insubstantial.
Having
regard to the nature of the work in question, a directory, which must
by its nature aim to be as complete as possible, a
deletion of 28
entries therefrom would in itself render the work substantially less
valuable. (The fact that
in
casu
the
28 entries are in any event fictitious or erroneous is not the point.
I am attempting to demonstrate that 28 entries alone can
be a
substantial part of the whole.) And if one considers that this is
only the tip of the iceberg, as it were, then the inference
is
well-nigh inescapable that what was copied was substantial even if
the precise extent thereof is not known.
”
[83]
The English Courts also had the opportunity
of deciding issues similar to the one we are dealing with
in a case
of
Football
League Ltd v Littlewoods Pools Ltd
[48]
where the Chancery Division had occasion to consider whether the
reproduction by Littlewoods Pools (for purposes of betting on
the
results of matches) of the Football League’s soccer fixtures
was actionable as an infringement of copyright.
[84]
After considering how the author went about
preparing the list of soccer fixtures, the Chancery Division
found
that these (the fixtures) were subject to copyright. It proclaimed so
in the following words:
[49]
“
Every
case must depend on its own facts. It is perfectly true that
Sutcliffe was not employed to produce a work of art
per
se
nor
even a work primarily as a book of reference, such as a directory or
a railway guide, but he was employed to produce the best
possible
programme of fixtures. Of necessity however, that programme had
to be reduced to writing. The League’s duty
is to arrange the
best possible programme of games to please the football public in
general and the clubs’ finances in particular,
and they can
only do so by producing a list or lists of those games. If, as a
result of prolonged cogitations, Sutcliffe reaches
a conclusion that
it will be best if, for example, Arsenal plays Manchester City at
Highbury on September 20, 1958 (as the programme
provided), he is
doing so no doubt primarily because that is best from the point of
view of league football, but if, as a result
of the whole of his
prolonged and skilled cogitations, he produces in a particular form
the season’s list containing 2028
matches or thereabouts, in my
judgment he or the League (who have, by direct assignment, any
copyright which might otherwise vest
in him) are entitled to claim
that the chronological list is produced as a result of the entire
skill, labour, time, judgment and
ingenuity of the League, their
servants and agents. In my judgment, on the facts of this case, it is
not open to the defendants
to try and dissect and break down the
efforts of Sutcliffe in the way suggested. Accordingly in my
judgment, the plaintiffs are
entitled to copyright in the
chronological list.
”
[85] As to whether or not an infringement
had occurred, the learned judge, Upjohn J, went to find as follows
at
pages 657 to 658 of the same judgment:
“
The
undisputed facts fundamental to my decision in this case are that the
chronological list itself is taken by the defendants and
used by them
line by line and division by division in exactly the same order as
the plaintiffs for the preparation of each of their
coupons week by
week throughout the season (except for a few, cup-tie weeks, which
together with a few league match changes, as
I have already pointed
out, may be regarded as
de
minimis
)
and they do this deliberately and under a claim of right to do so …
What in fact the defendants have done each week is
in substance to
copy exactly the League list for that week throughout the season.
I
find some assistance on this point from the
Cate
v Devon & Exetor Constitutional Newspaper Co
(1889)
40 ChD 500
;
5 T.L.R. 229.
In that case the plaintiff published
weekly a list of bankruptcies, bills of sale, and so on, the names
being listed by counties.
The defendants took week by week such
names for the county of Devon. The relevant entries pirated
formed naturally a very
small part of the whole. That case,
while not on all fours with the present, has, however, a strong
family resemblance.
North J said:
‘
Then
there is a further point raised by the defendants that the amount
that has been taken from the copyright publication is very
small.
In one paper I think out of the three weeks papers which have been
put up in evidence there was only one entry taken;
in another there
were, I think, four; in the third only a small number; but in
considering these it must be borne in mind that
all that is material
for the defendants for the purpose of their newspaper has been taken,
and that it is taken entirely –
copied exactly, from the paper
– taken regularly, systematically, every week, and published
for the purpose of giving information
to the very persons to whom the
plaintiffs intend their publications to give that information; and,
what is more important still,
the defendants now claim to do it as of
right; and that of itself is quite sufficient to put them in the
wrong in the action and
get over any question as to the amount of the
matter actually taken from the particular publication which is in
evidence. It seems
to me, therefore, that the defendants have been
wrong throughout : they had no right to take this matter in which the
plaintiffs
have copyright, and the action is well founded.’
Upon
the whole, I have come to the conclusion that this systematic
pirating by the defendants work week by week throughout the season
of
that part of the League’s list which is relevant to that week
deliberately and (by their defence of this action) under
a claim of
right amounts in the end to a reproduction of the plaintiff’s
compilations and infringes accordingly.
”
[86]
It should be mentioned that the above
expositions of English law on copyright infringement is as the
law
was before the situation was c hanged through Directive 96/9 of the
European Parliament which was implemented into English
law by the
adoption of the Copyright and Rights in Databases Regulations
1997
[50]
which came into force in England on 1 January 1998. The effect of
that Directive is to alter the law as it was in terms of the
judgment
of Upjohn J in the
Little
Pools
case to the effect that soccer fixture lists are no longer protected,
in consequence of the Directive.
[51]
[87] It is my finding that because South
Africa cannot be or is not affected by the above Directive, the
law
as laid down by Upjohn J is still good law, based as it is on the
English
Copyright Act from
where our law is derived, without
influence from the European Parliament’s Directive.
Consequently the defendant’s
argument that international
developments should be looked into as they may be a helpful guide to
this Court in exercising its value
judgment here cannot stand.
[88] The plaintiff’s witnesses, Mr
Blanckensee and Prof Schloss were the only witnesses on the issue
of
infringement. Both were able to show that the defendant copied annual
lists and corresponding weekly lists. Mr Blanckensee
testified
to the infringement in the above manner for the 2012-2013 and
2013-2014 lists or fixtures. Prof Schloss’s
testimony
proved the infringements in respect of the 2008-2009, 2009-2010 and
2010-2011 seasons. In all the above respects
the defendant used
the copied fixtures or lists in their Sport Stake games.
[89] The defendant attempted to prove
alleged implied non-exclusive licence to make use of the plaintiff’s
lists. It tendered evidence purporting to contain a schedule of
the plaintiff’s fixtures selected by it (defendant)
between the
period 30 August 2008 and 28 November 2010, all in all amounting to
293 fixtures copied and/or used. This was
out of a total of 517
weekly fixtures or lists for the period 30 August 2008 to 10 November
2010 and annual lists from 13 November
2010 to 28 November 2010.
Percentage wise, it boils down to the defendant having used 56,67% of
the plaintiff’s fixture lists
or contents thereof during the
period mentioned above.
[90]
The plaintiff also managed to prove that the
defendant was continuing to copy and use its lists and/or
fixtures to
date. They thus managed, in my view, to prove that from a qualitative
point of view, there is little doubt that the
fixtures taken by the
defendant for purposes of its “
Sport
Stake
”
are substantially significant
[52]
to the whole list. It is clear or common cause that the integrity of
the list would be compromised by the exclusion of the fixtures
copied
by the defendant, i.e. the list would be incomplete to such a degree
that its very reliability as a fixture would be at
stake were the
copied fixtures excluded from it.
[91] In addition to the plaintiff having
shown that the defendant infringed its copyright, it is my further
view and finding that this infringement is occurring up to this
moment on an ongoing basis.
[92]
It is our law that it is not incumbent on a
plaintiff to establish each and every infringement.
In
casu
,
the probabilities are in my view clear-cut in favour of the
conclusion that the examples shown establish an existing trend that
points towards the so-called “
tip-of-the-iceberg
”
as found by our courts if the
Fax
Directories
judgment
[53]
is anything to go by.
[93] The testimony of Mr Sibusiso Simelane
who was called by the defendant to substantiate its defence
of
alleged non-exclusive implied licence in my view and finding
confirmed that the “
Sport Stake
” list was
published twice a week.
NON-EXCLUSIVE
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 (Freedom of Expression Institute as amicus
curiae
)
[54]
the 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, i.e. 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]
[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, i.e. 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 CC
[59]
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 in question which are of
short-lived
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 to use it including commercial use of it.
[104] The defendant as a National Lottery Operator cannot be
considered to be “
the press
” or “
other
media
”. It is also not an information provider. It is
a company which runs a commercial gambling business. Furthermore, the
defendant’s business is not “
to receive or impart
information or ideas
”. It is run as a business. What
it is doing is not receiving or imparting information or ideas, but
rather publicising
its gambling game in the form of “
Sport
Stake
”. Publishing one’s business for
commercial gain is not the receipt or imparting of information or
ideas.
The defendant consciously, knowingly and deliberately
copied and is still copying selections from the plaintiff’s
fixture
lists specifically for purposes of operating its Sport Stake
gambling game. This “
selection
” cannot be
considered on any basis to be to inform the public of the fixtures.
[105] It is not gainsaid that the fixture lists are the
plaintiff’s property. The plaintiff’s property rights
are
also entrenched and protected in the Constitution. Section
25(c) of the Constitution reads as follows:
“
Property
.
25.(1)
No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of
property.
”
[106]
In
Laugh
It Off v SAB International
[61]
it was held among others that in the related but by no means
identical field of trademark protection, the anti-dilution provisions
contained in
section 34(1)(c)
of the
Trade Marks Act 194 of 1993
should be construed in the light of the freedom of expression
provisions contained in
section 16
of the Constitution. The
court should investigate whether there is “
unfair
advantage
”
or “
unfair
detriment
”
shown. In turn, what must be considered (in the context of the
trademark in question in that case) is whether the offending
use of
the mark “
would
be likely (to) be hurtful in the economic and trade sense, to the
repute of the marks …
”
What must be shown is “…
material
harm in the commercial sense
”
or “
substantial
economic detriment
”.
[62]
[107] The form of freedom of expression invoked by the
defendant is parody. The relevant conduct in the present matter
is commercial exploitation by the defendant of the defendant’s
fixture lists. As stated above, according to the defendant’s
witness Mr Ntombela, the “
Sport Stake
” revenue
went up to R243 million per annum. According to Mr Simelane, also a
witness called by the defendant, the revenue
varied between R240
million and R300 million per annum.
[108]
When one examines the form of the defendant’s conduct to
determine whether any infringement of the plaintiff’s
copyright
may be justified under section 16(1) or (b) of the Constitution, one
finds that the defendant’s conduct is not
a form of speech or
expression identified for protection by the Constitution. On
the contrary all indications or pointers
point or lead to the
appropriation of an intellectual property asset belonging to the
plaintiff, not for purposes of parody or
lampooning or for other
social purposes, but is instead for no purpose other than to generate
commercial gain for itself.
[63]
Section 16(1)(a) or (b) of the Constitution on any construction does
not permit commercial exploitation of another’s
intellectual
property under the guise of supposedly informing the public.
[109] It is my finding that the defendant here seeks, not to
inform the public, but to profit from the public by inviting
it to
participate in its gambling game of “
Sport Stake
”.
[110]
The history of these fixtures lists is also revealing. There
is uncontroverted evidence that the plaintiff had previously
licensed
its fixture lists to the defendant’s immediate predecessor,
Uthingo. The defendant itself half-heartedly started
engagements with
the plaintiff aimed at obtaining permission or licence to use the
fixture lists : When Mr Ntombela was in the
witness stand,
correspondence exchanged between the plaintiff and the defendant was
laid bare. In a letter from the plaintiff’s
attorneys
addressed to the defendant’s chairman and chief executive
officer dated 5 September 2008 it transpired that on
25 March 2008
the defendant sent a proposal to the plaintiff regarding this issue
of licence to used the plaintiff’s lists.
In the same letter
mention is also made that on 19 August 2008 the defendant’s
chairman intimated to the plaintiff’s
chairman among others
that it was the defendant’s intention to include PSL
[64]
fixtures in “
Sport
Stake
”.
The plaintiff’s response to this is contained in paragraph 1.6
of this letter dated 5 September 2008 in which the
defendant was
advised that the plaintiff –
“…
has not authorised you to reproduce or
distribute its fixture lists in any manner or form …
”
The advice proceeds in paragraph 2 of the letter wherein the
following stands:
“…
any reproduction, adaptation or distribution of
(the plaintiff’s) fixture lists by (the defendant would)
constitute an infringement
of (the plaintiff’s) copyright in
its fixture lists.
”
[111] The defendant simply went ahead and infringed that
copyright despite the above warning.
[112] All the above extracts from mutual correspondence is
common cause or uncontradicted by the defendant.
[113] It is therefore my finding that reliance on the
protection of section 16 of the Constitution by the defendant is
misplaced in the peculiar circumstances of this case. The
conduct of the defendant in reproducing the plaintiff’s fixture
lists for no purpose other than the generation of revenue for itself
without the plaintiff enjoying any part of that revenue through
its
Sport Stake gambling game is not only likely to be commercially
harmful to the plaintiff, but is also indeed causing commercial
harm
to it.
[114] The defendant attempted to mitigate or ameliorate the
impact of its conduct by stating that 34% of its “
Sport
Stake
” revenue is for “
good causes
”. It
is in my finding also misplaced. According to Mr Simelane’s
evidence, the defendant is contractually bound to
pay a certain fixed
percentage of its revenue to the Government through the National
Lottery Distribution Trust Fund. It is a
causa causans
for the
granting by the Government to it of a licence or tender to operate
the lottery. Even if its claim was true, there is no
basis in law for
supposed and/or self-determined “
good causes
” to
serve as a basis to limit copyright recognition or otherwise excuse
copyright infringement. The Act in question makes
no provision for
this or in this regard.
[115] After analysing all arguments and submissions from both
sides and considering the matter, it is my considered view
and
finding that the plaintiff should succeed in its claim to the extent
of its amended prayers herein.
[116] As regards costs, both parties were
ad idem
that
costs should follow the suit. They also are agreed that the
costs to be awarded should include the costs consequent
to the
employment of two counsel. I agree. The complexity of issues
raised and dealt with in this matter justifies the employment
of two
counsel. Furthermore, irrespective of the parties’ agreement
that costs should follow the suit, I have myself applied
my mind to
the question as to whether this general rule relating to the awarding
of costs is the appropriate costs order to grant
or not.
[117] I am mindful of the fact that the court has a wide
discretion when it comes to the awarding of costs at the end of
a
trial. I am satisfied that costs should follow the suit in this
case.
ORDER
[118] The following order is made/issued:
118.1
It
is hereby ordered and declared that the plaintiff’s annual
fixture lists and weekly fixture lists are each subject to copyright
protection as afforded by
section 6
of the
Copyright Act in
favour of
the plaintiff;
118.2
The
defendant is ordered to deliver-up all infringing copies,
reproductions and/or adaptations of all the plaintiff’s annual
and/or weekly lists in its possession or under its control;
118.3
The
following declarator is issued:
“
The plaintiff’s copyright in its
annual and/or weekly soccer fixture lists from the 2008/2009 South
African soccer season
to date has been infringed by the defendant to
the extent to which any soccer fixture in the aforesaid or relevant
season to date
appears in the defendant’s ‘Sport Stake’
product offering.
”
118.4
The
defendant is ordered to pay the costs of the action, which costs
shall include the costs consequent upon the appointment or
use of two
counsel.
N
F KGOMO
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
FOR THE PLAINTIFF
ADV C E PUCKRIN SC
ASSISTED BY
ADV K SPOTTISWOODE
INSTRUCTED BY
WERKMANS ATTORNEYS
SANDTON, JOHANNESBURG
TEL NO: 011 535 8000
FOR THE DEFENDANT
ADV G E MORLEY
SC
ASSISTED BY
ADV G R THATCHER
INSTRUCTED BY
SPOOR & FISHER ATTORNEYS
012 676 1222
c/o ROUTLEDGE MODISE INC
TEL NO: 011 523 6059
DATE OF HEARING
18 NOVEMBER 2013
DATE
OF JUDGMENT
28 FEBRUARY 2014
[1]
They
appear as Exhibit “E” in the paginated papers herein at
pages 17-32, 33-47 and 48-62 respectively.
[2]
Exhibit
“E” pages 63-79 of the papers herein.
[3]
Appears
in Exhibit “A” at pages 448-449 of paginated record.
[4]
Exhibit
“A”, p age 450 of paginated record.
[5]
Exhibit
“A”, page 406A.
[6]
Exhibit
“A”, page 406B.
[7]
Photographs
thereof appear in Exhibit “A”, pages 405 and 406.
[8]
This
process is set out in a slide played to the court as well as in the
“
Draw
for the fixtures of the Absa Premiership 2012-2013
”
document Exhibit “C” at pages 12-34.
[9]
Such
as Ajax Cape Town and Santos in Cape Town and Mamelodi Sundowns and
Supersport United in Pretoria.
[10]
Such
as Orlando Pirates and Kaizer Chiefs never having to play one
another midweek at night for safety and security reasons.
[11]
Draw
145 is at Annexure “C” 174(a) to (i); Draw 184 is
at C175(a) to 175(g); Draw 185 is at C177(a) to (n) and
Draw 188 is
at C175(a) to (g).
[12]
See
Accesso
CC v Aliforms (Pty) Ltd and Another
[1996] 4 All SA 655
(T) at 666d-667b.
[13]
Sweet
& Maxwell
,
16
th
Edition at para [3-24].
[14]
Per
Council directive 96/9 dated 11 March 1996.
[15]
Article
1(2) of the Council Directive.
[16]
Juta,
at page 1.10 paragraph 2.4.9.
[17]
Section
21(2)(a) of the Act.
[18]
Section
21(2)(d).
[19]
2004 SCC 13
;
[2004]
1 SCR 339
at para 25.
[20]
[2006] ZASCA 40
;
2006
(4) SA 458
(SCA) at
[35]
to [37].
[21]
1985
(4) SA 882
(C) at 893C.
[22]
Fax
Directories (Pty) Ltd v S A Fax Listings CC
1990
(2) SA 164 (D).
[23]
Board
of Healthcare Funders v Discovery Medical Scheme and Others
(Unreported
judgment of Kollapen J in North Gauteng High Court dated 15 November
2012 under Case No 35769/2010) at paras [2],
[6] to [18], [29] to
[32].
[24]
Intellectual
Property : Patents, Copyright, Trade Marks and Allied Rights,
7
th
Ed, 2010.
[25]
Waylite
Dairy CC v First National Bank Ltd
[1994] ZASCA 135
;
1995 (1) SA 645
(AD) at 650D-E.
[26]
Appleton
and Another v Harnischfeger Corporation and Another
[1994] ZASCA 141
;
1995 (2) SA 247
(AD) at 262E;
Klepp
Valves (Pty) Ltd v Saunders Valve Co Ltd
1987 (2) SA 1
(AD) at 22H to 23B.
[27]
[1997]
RPC 289 (ChD) 428-430.
[28]
Fax
Directories (supra)
at 175C-D.
[29]
Fax
Directories (supra)
at 175I.
[30]
Insamcor
(Pty) Ltd v Maschienenfabriek Sidler AG t/a Sistag
1987 (4) SA 660
(W) at 663H-I and 664C;
Jacana
Education (Pty) Ltd v Frandsen Publishers (Pty) Ltd
[1997] ZASCA 109
;
1998 (2) SA 965
(SCA).
[31]
Section
23(1) of the Act.
[32]
Section
6(a) of the Act.
[33]
Section
6(b) of the Act.
[34]
Section
1 of the Act.
[35]
Supra
,
16
th
Ed, 2011 at 3-147.
[36]
See
Board
of Healthcare Funders (supra)
at [39].
[37]
Payen
Components SA Ltd v Bavic CC and Others
[1995] ZASCA 57
;
1995 (4) SA 441
(A) at 450E; D H Dean :
Copyright
at 1-36 para 4.8.
[38]
Haupt
t/a Soft Copy (supra)
at [31].
[39]
O H
Decan :
Handbook
of South African Copyright Law (supra)
at para 4.8 page 1-36.
[40]
Payen
Components (supra)
at 451D.
[41]
Copinger
and Skone James (supra)
at 8-26 and 8-27 as quoted in
Payen
Components (supra)
at 451J-452C; see also
Copyright
(supra)
at 7-28.
[42]
University
of London Press Ld v University Tutorial Press Ltd
[1916] 2 Ch 601
at 610 (quoted with approval in
Payen
Components (supra)
at 482D;
Fax
Directories (supra)
at 177I.
[43]
Payen
Components (supra)
at 446A-B, 451B and 452I.
[44]
Cornish,
Llewelyn & Aplin (supra
)
at 12-06.
[45]
[1964]
1 All ER 465 (HL).
[46]
1989
(1) SA 276
(A) at 285C-E.
[47]
2002
(4) SA 249
(SCA) at para [9].
[48]
(1959)
Ch 637 (ChD).
[49]
At
655-656.
[50]
SL
1997, No 3032.
[51]
Football
Data Co Limited and Others v Brittens Pools Limited and Others
,
C-604/10 (a judgment of the Court of Justice of the European Union
dated 01 March 2012.
[52]
i.e.
within the meaning of those words as used by the learned authors of
“
Copyright
”
at 7-30.
[53]
Supra.
[54]
2006
(1) SA 144 (CC).
[55]
Woolman
et
al
:
Constitutional
Law in South Africa
,
2
nd
Edition, Vol 3 at 42-33(c).
[56]
Defendant’s
Heads of Argument, paragraph 34 at page 13 thereof.
[57]
Paragraph
35 thereof.
[58]
Laugh
It Off v SAB International (supra)
at para [44].
[59]
1995
(4) SA 441 (A).
[60]
Supra.
[61]
Supra
at
paras [45], [49] to [50].
[62]
Ibid
at [51] and [56].
[63]
Separate
but concurring judgment of Sachs J in
Laugh
It Off v SAB International
at [85].
[64]
Professional
Soccer League.