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[2016] ZAGPJHC 411
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SABC SOC Ltd vs Via Vollenhoven & Appollis Independent CC and Other (13/23293) [2016] ZAGPJHC 411; 2016 BIP 371 (GJ) (2 September 2016)
REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 13/23293
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
Date:
2 September 2016
In
the matter between:
SOUTH
AFRICAN BROADCASTING CORPORATI0N SOC LTD
Plaintiff
and
VIA
VOLLENHOVEN & APPOLLIS INDEPENDENT CC
First Respondent
SYLVIA
ELIZABETH VOLLENHOVEN
Second
Respondent
CHAUCER
PUBLICATIONS (PTY) LTD
Third
Respondent
MARTIN
SYLVESTER WELTZ
Fourth Respondent
MINISTER
OF TRADE AND INDUSTRY
Fifth Respondent
and
FREEDOM
OF EXPRESSION INSTITUTE
Amicus Curiae
J
U D G M E N T
NOWOSENETZ
AJ:
[1]
The applicant, the SABC, concluded a written Television Production
Commissioning Agreement
(the TPC agreement) with the first
respondent, a close corporation conducting business as a film
production house (VIA) in which
it commissioned VIA to make two
documentary film episodes called “Truth Be Told : Project
Spear”. The second respondent
Ms SE Vollenhoven (Vollenhoven)
is a film maker and member of the first respondent. The first and
second respondents are for convenience
referred to as the
Respondents. The fifth respondent opposes the Respondents’
constitutional challenge but no other relief
is sought.
[2]
The Applicant purchased the copyright in the films for the amount of
R559
169 which was duly paid to VIA. One episode was broadcast on 28
October 2012 and the other entitled “Project Spear: -
Stolen
billions, spies and lies” (the work) has not been broadcasted
by the applicant to date and is the subject matter of
this dispute.
The applicant seeks a final interdict against the first and second
respondents from infringing the applicant’s
copyright in the
work (distribution interdict) and delivery up of specified production
materials (delivery interdict). It relies
on the protection afforded
under the Copyright Act 98 of 1978 (the Act) as well as the
agreement. No relief is sought against the
Third, Fourth and Fifth
Respondents. Argument was addressed on behalf of the Fifth Respondent
relating to the constitutional challenge.
The amicus curiae withdrew
from these proceedings and played no role.
The
copyright dispute
[2]
The applicant’s founding affidavit, deposed to by Ms N Shozi,
acting head of
factual genre, the issue was described thus: During
2010 the applicant released a public Request for Proposals for the
commissioning
of television programmes to fit the channel and genre
criteria of the applicant. The applicant represented its factual
genre as
an opportunity for ordinary South Africans to tell their
story truthfully and honestly; that public broadcasting was crucial
to
a healthy broadcasting; to use story telling as a nation building
tool; that controversy was embraced. The intention was to present
a
subject with in the security that the information has integrity to
create empowerment of the audience. The evaluation criteria
were for
South African innovative and cutting edge material. In short an
investigative documentary.
[3]
Vollenhoven had certain reports which were in the public domain which
she had researched
and which revealed an intrigue regarding
“lifeboats” ie illegal financial assistance given by the
previous government
through the South African Reserve Bank to major
South African financial institutions. These advances had allegedly
never been or
recovered by the new democratic government. This story
formed the basis of the proposal made to the applicant and it was
accepted.
[4]
The TPC agreement was signed on 24 November 2011. Film production
began about May
2012. Shozi was the commissioning editor and was
involved in the management of this project. She states that she
received a rough
cut of the work only two days before receiving the
final mix. By 3 September 2012 it is common cause that the Beta SP
tape transmission
master and FCC sheet was delivered to the
applicant. It is also not in dispute that the applicant has paid the
producer for the
work.
[5]
On 24 August 2012 Shozi confirmed the transmission date on 30
September 2012 for the
work to Vollenhoven. On 4 September 2012 the
first objection to the work was received by Vollenhoven from Shozi in
a lengthy email.
Her objections were based on the first viewing of
the documentary. She found the work to be unacceptable in style and
quality.
She regarded the end product as deviating from the proposed
product in the TPC. She expressed inter alia, reservations about
unbalanced
reportage, excessive reliance of material from Noseweek
(the Third and Fourth Respondent being publisher and editor
respectively),
incrimination of certain public figures such as Mt T
Manuel and Ms G Marcus without the right of reply and placing the
applicant
at risk of liability for defamation. Correspondence was
exchanged by them with suggestions by Vollenhoven to implement
changes.
[6]
The matter was not resolved and was escalated to Mr G Pretorius,
Programme Manager:
SABC Television. On 11 October 2012 he wrote to
Vollenhoven expressing enthusiasm for the work but describing it
inter alia, as
containing emotive and sweeping statements which are
not necessarily 100% accurate. He stated that there are gaping holes
in the
film. He also was concerned about exposure of the applicant to
litigation. He requested a fully annotated script and proof of
sources
for each statement of fact. Vollenhoven objected that a
script was not a contractual deliverable and sought specific
itemisation
of the “gaping holes”. She nevertheless
complied with the request for the annotated script. An internal
review of the
work was held by the applicant and a Regulatory and
Compliance Report was sent her on 15 October 2012. The report was
also enthusiastic
about the film but concluded that it digressed from
the guidelines of the editorial policy by which the applicant was
bound. The
review identified 16 critical points which it found
problematic. The review required major changes to the film. On 16
October 2012
Ms V Barnard a compliance officer of the applicant wrote
a lengthy comment about the film to Vollenhoven stating:
“
Based on the EC
Act, BCCSA Code of Conduct, SABC Editorial Policies and the ICASA CCC
Code I am in agreement that this documentary
goes against the SABC
Editorial Policies, our mandate and our broadcasting legislation. She
concluded thus:
“
Given the absence
of satisfactory truth or reasonableness, I conclude that the
programme is defamatory of all accused parties. Legitimate
public
interest cannot save the programme. Given the obvious deficiencies
(in the programme) I am, furthermore, of the view that
the producer
was negligent in having commissioned the programme.”
[7]
In the interim the screening did not proceed and on 27 September 2012
the applicant
announced in a media release that the work would be
broadcast on SABC 2 on 4 November 2012. A private screening of the
work was
planned for 19 October 2012 but this did not take place. On
22 October 2012 Vollenhoven made proposals for a compromise which
would involve the applicant meeting her half- way. On 29 October 2012
Mr Pretorius advised her on 29 October 2012 that the project
would be
escalated to the head of television for a final decision by the end
of the week. No final decision was communicated to
her by the
applicant. The film was not broadcast on 4 November 2012. On 19
November 2012 Vollenhoven then wrote to Mr Pretorius
that in view of
the applicant not wishing to broadcast the film, she expressed
interest in the producer buying the rights back
from the applicant as
there were some interested buyers to whom the maker could sell the
work. On 29 November 2012 Mr Pretorius
informed her that a business
plan was being circulated for signature and Henk Lamberts will
contact her to conclude. The applicant
did not contact her at all.
[8]
The applicant became aware that Vollenhoven intended to screen the
work at the Franschoek
literary festival which took place on 18 and
19 May 2013. The applicant’s attorneys wrote to Vollenhoven and
the producer
claiming the applicant’s copyright and seeking an
undertaking from them not to screen the film. Such an undertaking was
given
and complied with. Vollenhoven also asked about the progress of
the business plan of the applicant to finalise the buy back of the
rights. It emerged that Noseweek was in possession of a final
edit of the film and after a similar demand by the applicant’s
attorneys an undertaking was given by the fourth respondent and was
honoured.
[9]
In an interview on Talk Radio 702 on 20 May 2013 (702 interview)
Vollenhoven stated:
“We’ve been showing this to industry
people to people involved with the documentary, to small private
audiences.”
She went on further:
“
So, when you say
we‘re determined to get the story out there, yes, despite all
of this and despite what the SABC has done
this weekend, we are very
determined to get this story out there, and I promise you, with the
modern means of communication, the
SABC is in such an old fashioned
mode of thinking, it still thinks of Big Brother; they can decide
what the South Africans can
see. With modern means of communication
that’s just not the truth. We can get the story out there and
we, and we will get
it out there somehow. “
[10]
In a letter dated 21June 2013 the applicants attorneys wrote to the
first and second respondents
alleging that they were in breach of the
agreement by not handing over all materials in respect of the work,
by providing copies
and other copyright materials to the fourth
respondent and by threatening to broadcast the work in the 702
interview. The applicant
also advised them that it did not intend to
sell any of its rights in the work to them. It sought an undertaking
by close of business
on 26 June 2013 together with delivery up of
specified materials failing which it gave notice of its intention to
launch this application.
The form of the undertaking sought was as
follows “…never to broadcast and/or deal with the
Production and related
materials in any form or manner whatsoever or
provide anyone with copies of the production and all materials
created and/or acquired
for the purposes of the production.”
VIA’s
undertakings
[11]
A similar letter was sent by the attorneys to the fourth respondent
who gave an undertaking not
to broadcast the work but he insisted on
keeping the DVD explaining that one day he could show it to his
grandchildren or use it
when he wrote his memoirs. He admitted that
he and the third respondent had a free showing of the work to a small
audience of less
than 100 Noseweek readers about a year previously.
Vollenhoven responded after the expiry date of the applicant’s
ultimatum
in an email dated 28 June 2013 sent at 1239. She gave
following undertaking: “I hereby give you an undertaking never
to broadcast
the documentary “Project Spear” commissioned
by the SABC nor to distribute it. She refused to give an undertaking
never
to deal with the “related materials’ as she
required clarity what this meant. She regarded research materials in
her
possession as being in the public domain. She further stated that
undertaking not to deal with related materials would be gagging
her
and preventing her from doing her work as a journalist and was
contrary to the Constitution. She did not deliver anything and
insisted on retaining one DVD copy. She reiterated her resolve to get
the story out there as it was important. She said
“
I give you my undertaking
that not a single minute of the SABC footage will be used for the
film that I am now planning and that
the story will be considerably
different to the one made for the public broadcaster.”
Defences
and counter-applications
[12]
The first and second respondents have raised a number of defences and
counter-applications: The
defences are -
(a) – the applicant
has failed to establish a right entitling it to the distribution
interdict.
(b) – the applicant
has failed to demonstrate a reasonable apprehension of irreparable
harm.
( c) – the
applicant has alternative remedies to an interdict.
(d) – the applicant
is not entitled to the delivery interdict as Vollenhoven has tendered
or returned the materials; the materials
do not exist.
(e) – properly
interpreted the Act and/or the agreement entitles the producer to
keep a single copy;
(f) - The Act must be
interpreted to imply an exploitation exception alternatively it is
constitutionally invalid to this extent
as a violation of freedom of
expression of the maker and an exploitation exception should be read
into section 24 of the Act.
The counter- applications
are -
(g) – a review is
sought of the applicant’s decision - (i) not to broadcast the
work and (ii) not to negotiate the sale
of the work to the maker,
alternatively declaring that these decisions are in breach of the TPC
agreement;
(h) – a contractual
claim that if the plaintiff does not broadcast the work, it must
negotiate in good faith to sell it to
the producer.
The
TPC agreement
[13]
The salient features of the TPC agreement germane
to the issues should be set out. The first aspect is ownership
and
copyright. Clauses 8 vests ownership in the applicant of “all
physical manufactured or acquired material in creating
the programme”
and clause 21 vests ownership in “all video material and
material made by and/or recorded for the Production”
and the
copyright as well as an array of intellectual property rights
therein. This repeated in Schedule V clause 2.1. The second
aspect is
editorial control. Clause 18 states: ”The SABC shall have final
editorial control over the Production and any episode
thereof, if
applicable, for production and broadcast. In the event that the
production or any part of the production, …
in the exclusive
opinion of the SABC , contravene ….the SABC’s
broadcasting mandate, standard broadcasting rules,
practices and
procedures, then SABC may refuse to broadcast the Production ….”
Clauses 18.1 and 18.2 obligated
the applicant to consult with
the Producer to establish the extent to which the scripts are
defective and to give bona fide consideration
to the views of the
producer. Schedule V clause 1.1.1 provides that standard of technical
and artistic acceptability is entirely
within the discretion of the
applicant to determine. Clause 19 provides: “In the event
that the producer fails to implement
the changes as requested by the
SABC, the SABC shall not be obliged to either broadcast and/or pay
for such production.”
Delivery is regulated under
Schedule V clause 3.1: “The Producer shall deliver to the SABC
a completed product ….and
as part thereof also the final
graded transmission prints, or were [sic] applicable, the final
transmission tapes, the final mixed
magnetic soundtracks of the
Production, trailers (where applicable) the master negative or
positive (where applicable) …
completed final control sheets,
off cuts photographs and all relevant documentation required by the
contract … “.
Schedule V clause 2.8 requires the
producer to furnish the applicant with copies of the music cue
sheets, original consent sheets
and licences. The resale of the work
is contemplated under the circumstances in Schedule V clause 12. 7:
“If, after two years
calculated from the date of final delivery
and acceptance of the production by the SABC, the SABC has not
broadcast the production
for reasons within the control of the SABC,
then the Producer shall be entitled to enter into negotiations with
regard to the Production.
In such event the SABC shall negotiate with
the Producer in good faith.”
Material
provisions of the
Copyright Act
[14
]
The statutory rights created by the Act and which are in issue,
provide the following: Exclusive rights acquired in a cinematograph
film are wide ranging and are explicitly listed in section 8 (1) of
the Act. These include the right to reproduce the film, causing
the
film to be publicly shown, broadcasting, and make adaptations.
Section 3(1)(b) confers copyright on an author who is a qualified
person, which includes in the case of a juristic person, being
incorporated under the laws of the Republic. Ownership of such
copyright conferred in terms of section 3 vests in the author of the
work. Section 1(d) defines the author in relation to a cinematograph
film as “the person by whom the arrangements for the making of
the film were made”.
[15]
In
Nintendo
Co Ltd v Golden China TV Game Centre & Others
1995
(1) SA 229
(T)
a manufacturer of video games sought to interdict the respondents
from infringing its copyright. It was held that the video
games were
cinematograph films and that the applicant was the author. In
reaching this conclusion the manner in which the games
were developed
was examined. A team of employees of the applicant designed and
produced the games but some members of the team
were employees of
other Japanese companies commissioned to do that particular work.
This case was confirmed on appeal in
Golden
China TV Game Centre and Others v Nintendo Co Ltd
1997(1)
SA 405 (SCA).
[16]
Section 21(1) provides that the ownership of any copyright conferred
by s 3 (ie a qualified person)
shall vest in the author. Section
21(1) ( c) provides that where a person commissions the making of a
cinematograph film and pays
or agrees to pay for it in money or
money’s worth , and the work is made in pursuance of that
commission, such person shall
be the owner of any copyright. Of
critical importance is s 21 (e) which makes provision for excluding
by agreement the effect of
a commission agreement contemplated by s
21(1) (c). In other words the Act only vests the commissioning party
of a cinematograph
work with copyright ownership in the absence the
parties agreeing otherwise. Section 24 (1) provides that
infringements of copyright
shall be actionable at the suit of the
owner of the copyright and contains the remedies and procedures in
enforcement proceedings.
[17]
The applicant is a juristic person incorporated in the Republic. It
commissioned the producer
to make a cinematograph film, ie the work,
which was sold to the applicant who has paid the producer. On
application of these principles,
the statutory owner and author
of the work is the applicant. The producer however can avail itself
of the general exceptions
to a copy right holders claims. The Act
provides for general exceptions to protection of film copyright under
the rubric of fair
dealing: research and private study (s 12 (1)
(a)); criticism or review of the work – s 12 (1)(b); for the
purpose of reporting
current events (s 12 (1) (c)); judicial
proceedings (s 12 (2)); quotation (s 12 (3)); teaching (s 12 (4)). A
general reproduction
exception provides for where the reproduction of
the work is permitted by regulation and is not in conflict with the
normal exploitation
of the work. The text of s13 reads:
“
In addition to
reproduction permitted in terms of this Act reproduction of a work
shall also be permitted as prescribed by regulation
but in such a
manner that the reproduction is not in conflict with a normal
exploitation of the work and is not unreasonably prejudicial
to the
legitimate interests of the owner of the copyright.”
[18]
The interdictory relief sought by the applicant is based on the Act
and bolstered by the contractual
rights emanating from the agreement.
The
requirements for obtaining a final interdict are well known. All the
elements must be established :
(a) a clear right;
(b) an actual or
threatened injury or a reasonable apprehension of harm; and
(c ) the absence of
an alternative suitable legal remedy.
The
requirements of an interdict based on copyright infringement are the
same as any other interdict.
Fax Directories (Pty) v SA Fax
Listings CC
1990 (2) SA 164
at 179 B – C.
[19]
The applicant as owner of the work, prima facie has a right to seek
relief by way of an interdict – s 24(1). This right
is
challenged by the respondents with the defences and counter-
application which are now considered. The exploitation exception
is
based on the argument that the Act was never intended to prevent the
distribution of a work when it will provide no benefit
to the holder
of the copyright. It was submitted that the applicant has no
intention to exploit the work. This a factual
issue. If it is
found that the Applicant has an intention to exploit, the defence
falls away but the intention to exploit issue
also impacts on the
contractual counter application.
Applicant’s
intention to exploit
[20]
It is not in dispute that the work has not been broadcasted, adapted,
licenced, sold or indeed
used in any manner by the Applicant to
derive a commercial advantage. I understand this to be the meaning of
‘exploit’
in this context. The applicant states that the
work is incapable of being exploited in its current form but insists
that it is
not correct to assert that it does not intend to screen,
use or exploit parts of it. In order to avoid wasteful expenditure it
states that it is duty bound to adapt or amend parts of it wherever
possible. It states that it is a common occurrence not to broadcast
works it has commissioned, for a variety of reasons including poor
journalistic quality. It is awaiting receipt of the raw footage
in
which it also has copyright in order to extract usable parts of this
footage. Respondents contend that the raw footage is a
separate
copyright from the work and use of the footage is not exploitation of
the work. This distinction is artificial as use
of the raw footage is
integrally connected to the work.
[21]
The intentions of the applicant have been opaque in its
communications with Vollenhoven about
broadcasting the work. It did
not respond to Vollenhoven’s proposal to jointly modify the
work. In her letter dated 22 October
2012 after not hearing from Mr
Pretorius for a week she made her proposals on major changes. In that
email she observed at the
outset “ From your silence I assume
there is no budget for the major changes you are suggesting.”
In conclusion she
stated “ Now all this will take time and
money.” She ended on this note: “ (please lets talk about
how we move
forward with this. I am prepared to compromise but you
have to meet me half way. ” No response was forthcoming to
these proposals
at all. Nor was there any communication to her as
promised that the head of television would make the final decision
whether the
work would be broadcasted. After waiting for a response
by 1 November 2012 she wrote to the applicant on 19 November 2012:
“
Because I have
heard nothing from you I am assuming that the SABC no longer wishes
to discuss seriously as well as timeously the
broadcast of this film”
. Again on 28 June 2013 she wrote to the applicant: “ I would
like to know if I can now assume
that (a) the SABC has no intention
of broadcasting this film and that (b) they do not wish to continue
the discussion about the
same. Clarity on this point would help me to
plan the way forward. In the absence of any clarity I am going to
assume that this
film will never see the light of day at the SABC.”
[22]
The applicant did not comment on the clarification sought by
Vollenhoven but in its email to
her dated 29 November 2012, Mr
Pretorius stated: “ The Business plan for the sale of Project
Spear is going around. Henk
Lamberts will contact you to conclude.”
She received no response. She reminded Mr Pretorius in an email on 19
March 2013
that she was awaiting a response and wanted to khow when
the process for the sale would be complete as she had clients who
were
interested in purchasing the rights. She received no response
until the applicant’s attorney’s letter of demand dated
21 June 2013 indicting the applicant would not sell the work . This
letter was a complete and unexplained about turn from its previous
stance.
[23]
In her email dated 28 June 2013 Vollenhoven explained that the raw
footage was with the editor,
Eileen de Klerk and the only reason it
was not returned to the applicant was because the broadcast issue had
been previously unresolved
and the industry practise by producers was
not to return rare raw footage as the archiving of the applicant was
understood to be
poor. Vollenhoven gave an assurance that the
editor would make the raw footage available at the end of July 2013.
By then
these proceedings had been instituted.
[24]
The applicant does not explain in its papers why it has not availed
itself of Vollenhoven’s
offer to make the raw footage available
and since July 2013 there is no evidence at all of any effort to
retrieve this raw footage
and to use it. Thus as at the date of the
hearing, almost three years later, the status quo has not changed.
The applicant has
sought to distinguish its intention not to
broadcast the work in its current form from its intention to adapt
it. No specific plans
have been revealed by the applicant for the
contemplated use of the raw footage or the work. No budget has been
mentioned nor any
project contemplated to achieve this task. As at 29
November 2012 the applicant had no intention of exploiting the work
as it declared
that the business plan for the sale was being
circulated. This stance changed in June 2013 when the applicant
confronted the respondents
regarding infringement of copyright in the
letter of demand immediately prior to instituting these proceedings
and advised that
it was not prepared to sell the work. As stated,
this change of stance is not explained. The applicant has not shown
any commitment
to exploit the work. Preparedness to sell the work to
VIA is irreconcilable with an intention to exploit. The applicant’s
inconsistency, vagueness and lack of action to date persuades me that
for all practical purposes, it does not have a bona fide
intention to
exploit the work .
Exploitation
exception
[25]
Since the coming into force of the Constitution
the courts are bound to read legislative provisions through
the prism
of the Constitution.
Makate v Vodacom Ltd
2016 (4) SA 121
at
para 87. The Act does not contain an explicit exploitation exception.
It was submitted on behalf of VIA that it should be read
into section
24 (1) that any person attempting to enforce a copyright must
establish that it intends to exploit the work. The second
option, it
is argued, is to regard the exploitation exception as a form of fair
dealing. The respondents contended that the underlying
purposes of
the Act were to protect the personality right of authors; to ensure
that the acquisition and use of intellectual property
is fair; to
promote the free spread of art, ideas and information, not to hinder
it and to regulate copyright so as to enhance
a vibrant culture in
South Africa. Thus on a purposeful interpretation of the Act, so it
is argued, it is not just to protect owners
of copyright but to
advance the public good: The general scheme of the Act does not grant
absolute rights to holders of copyright.
Reliance was placed on
Frank
& Hirsch (Pty) Ltd v A Roopanand Brothers (Pty) Ltd
1991 (3)
SA 240
D per Booysen J at 245B-C:
“
In general terms
the principal purpose of copyright law is to advance public welfare
by rewarding the talent of authors of original
artistic or literary
works with a limited monopoly over their works…, or to put it
differently by enabling them to prevent
others from copying and
exploiting their work without their consent.”
There
is nothing in this dictum to support the meaning of public good
relied on by the Respondents. Their construction of public
good or
welfare is equated to dissemination of ideas and this is nowhere to
be found or implied.
[26]
Four traditional theories, it was submitted,
undergird copyright: (a) personality; (b) fairness; ( c) welfare;
and
(d) cultural. Justin Hughes ‘
The Philosophy of Intellectual
Property’
(1988) 77 Georgetown Law Journal 287.
Emphasis
was placed on the fairness theory which posits “no waste and no
harm” as exceptions to copyright. Thus the
argument is that the
non exploitation by the applicant of the work constitutes a waste of
the intellectual property and the use
by VIA would not harm the
applicant’s rights.
[27]
The nature of copyright has been contested and criticised in legal
scholarly writing. The following conceptions are in
similar
vein:
‘
Copyright doctrine
is informed by a commonly perceived, seemingly basic contradiction of
purpose. On the one hand, copyright aims
to promote public disclosure
and dissemination of works of "authorship"; on the other
hand, it seeks to confer on the
creators the power to restrict or
deny distribution of their works. American courts have conferred on
copyright owners near-absolute
power of control over unpublished
works-no matter how newsworthy or germane to a would-be users'
scholarly projects. In effect,
the Courts are endorsing the use of
copyright as a device to enforce private censorship in the name of
"authorship."
Peter Jasci ‘
Toward a theory
of copyright: the metamorphoses of "authorship
" ‘
Duke Law Journal Vol. 1991 p 455.
The notion below also has currency in
the USA:
‘
Copyright law is a
kind of giant First Amendment duty –free zone. It flouts basic
free speech obligations and standards of
review.’
Jed Rubenfeld ‘
The freedom of
imagination
: Copyright’s constitutionality (2003) 112 Yale
Law 1.
In
addition to these criticisms in
Biotech
Laboratories (Pty) Ltd v Beecham Group Plc
[2002]3
All SA 652 (SCA) at 659 Harms JA observed that South Africa has moved
away from the continental approach emphasising the
rights including
moral rights of the author towards the to the Anglo-American model
where commercial rights are dominant
.
He
said:
‘
The definition of
“author” in s 1 also covers a large number of persons
who, in the ordinary sense of the word, are
not authors but persons
with financial interests in the end result. For instance, the author
of a computer program is the person
who exercised control over its
making. One consequently does not have to be a cynic in order to be
sceptical about the philosophical
premise.’
[28]
Caution should be exercised in elevating lofty pronouncements to
guiding principles in ascertaining
the intent and purport of the Act
within our constitutional framework. In
Bertie van Zyl Ltd and
another v Minister for Safety and Security and others
2010 (2) SA
181
(CC) per Mogoro J at para 90 that the Courts must give effect to
the to the fundamental values of the Constitution when interpreting
legislation. Statutes must be construed contextually and, given
section 39(2) of the Constitution, where possible, consistently
with
the Constitution.
Investigating Directorate Serious Economic
offences and others v Hyundai Motor Distributors: In re Hyundai Motor
Distributors (Pty
) Ltd v Smit NO and others
[2000] ZACC 12
;
2001
(1) SA 545
;2000 (10) BCLR was cited as the proper approach:
‘
[J]udicial
officers must prefer interpretations of legislation that fall within
constitutional bounds over those that do not, provided
that such an
interpretation can reasonably be ascribed to the section.’
Mogoro J stated further:
‘
A
court may thus avoid unconstitutionality by ascribing a
constitutionally compliant meaning to legislation, as long as that
meaning
can reasonably be ascribed to the provision; that is, the
interpretation must not be “unduly strained”. ‘
[29]
The notion that the owner’s copyright is conditional on
exploitation is in principle unrelated
to the main purpose of the Act
which is to grant a qualified monopoly to the copyright owner and to
reward the creator of the intellectual
property. Unlike other forms
of intellectual property such as trade marks, the Act does not
prescribe at all how the owner should
use or exploit the work. Can
non exploitation or publication dilute the owner’s copyright or
remedies for infringement?
In
Salinger v.
Random House, Inc
[1987] USCA2 415
;
811 F.2d 90
(2d Cir.
1987) the US Court of Appeal upheld the right of an author to prevent
the publication of his private unpublished letters
even though he had
no intention of publishing . In this case his right to privacy was
held to override fair use. There was no acknowledgement
in this case
of an exploitation exception.
[30]
The view that copyright aims to promote public disclosure and
dissemination of works cannot be
regarded as a true reflection of the
purpose or intent of the Act and is not part of our copyright law.
The Respondents’
conception of the purposes of the
Copyright
Act is
overbroad. The Act by no means purports to regulate or promote
the free spread of ideas although it undoubtedly is a mechanism by
which this result may be effected. It is straining the proper limits
of the Act to find some kind of implied condition of dissemination
in
the conferral of copyright. In my view the “no waste no harm”
principle finds no place in the Act. Copyright law
has existed for
several centuries in statutory form. It would be expected that a rich
body of law would have crystallised by now,
if not in South Africa
then in other jurisdictions. No such authorities have been produced
by the respondents and in our law none
is to be found.
[31]
South Africa is a signatory to the Berne Convention which
standardises copyright law to a great
extent. Article 14 of the Berne
Convention – Paris text 1971 provides that the owner of
copyright in a cinematographic work
shall have same rights as the
author of an original work and the rights of ownership shall be a
matter for legislation in the country
where the protection is
claimed. This is precisely what section 21 of the Act achieves.
The Act is in conformity with the
obligations of South Africa under
international law in this respect. Thus historically, internationally
and comparatively viewed,
the Act is not out of kilter in not having
an implied exploitation exception. The constitutionality of section
24 is dealt with
further below.
[32]
Creative work has indeed become commoditized. The concept of
authorship has shifted with
the advances in media technology and
production management from the de facto author or creator to the
entrepreneur as noted in
Biotech
. This has enabled the huge
growth of the entertainment and computer software industry which has
bestowed undeniable benefits on
mankind which may not have been
hitherto possible. This statutory shift of authorship of a film does
not necessarily mean that
the film maker cannot be the owner and
enjoy the rewards as expressed the
Frank & Hirsch
case.
[33]
The Act strikes a balance between the rights of the de facto author
ie the creator of the work
and the statutory author ie the copyright
owner. VIA as creator sold its work to the Applicant for substantial
material gain in
a commission agreement. This is the quid pro quo
upon which s 21 of the Act is premised. The parties may contract with
each other
to vary or exclude the ownership of the copyright vesting
in the commissioning party under s 21(1) (e). The Act is therefore
not
the instrument by which the rights of the film maker are
curtailed or excluded. It simply regulates the default rights of the
parties
absent an agreement to the contrary. Even then it does not
per se
limit freedom of expression as set out below. There is
nothing in this arrangement which offends any constitutional value.
The
film maker thus has a choice in retaining its copyright and
thereby exercising the rights of use or exploitation of the work that
VIA claims. In similar manner an employee too can exclude the
operation of the copyright ownership vesting in the employer by
agreement.
Stiff v Reid Daly
2004 BIP 240 W. An implicit
exploitation exception is not required to give effect to the Act and
does not exist.
Single
copy and fair dealing
[34]
The respondents’ single copy exception
argument is that that the non owner author of the work may
keep a
single copy of the film: It is part of the general right to fair
dealing. This proposition requires qualification. No substantive
single copy exception exists in the Act. Reliance was placed on
s 13 read together with regulation 2 of the Copyright Regulations
1978 GN R2350 (22 December 1978). These enactments are an application
of the Berne Convention. The regulation contemplates the
permitted
reproduction of a reasonable portion of the work in such a manner
that the exploitation is not in conflict with a normal
exploitation
of the work and is not unreasonably prejudicial to the legitimate
interests of the owner of the copyright. This exception
will depend
on the facts and is based on the “Berne three step test”
which also requires that the reproduction may
only be permitted in
special cases. Respondents argue that this is a special case: the
applicant, a copyright holder does not wish
to exploit the work but
still wishes to prevent its distribution. Regulation 2 does not stand
alone. When read with regulation
3 and 5, it does not expand the
permitted scope of a reproduction or single copy beyond specified use
by a library or archive and
has no application in this case. There is
simply no warrant under Act beyond the
numerus clausus
of
permitted use, to infer a single copy exception. OH Dean:
Handbook
of South African Copyright Law
(Juta) p1-95 states:
“
Unlike the
position in the United States of America, the
Copyright Act provides
for an express, finite list of fair dealing exceptions, and a
defendant must bring itself within one of the stipulated exceptions.”
[35]
Nor has VIA demonstrated that it qualifies to use a copy of the work
or part thereof for a recognised
category of fair dealing. It was
sought to bring the showing of the work at the Franchhoek Festival
within the purview of
section 12
, as a form of criticism or review.
This is patently a sham. Vollenhoven’s intention is manifestly
clear: It is to “get
the story out there”. It was argued
that Respondents had the right to fair dealing in reporting current
events. Despite the
high public interest of the film, it deals
primarily with the management of public funds by the previous
government and secondarily
the response by the present government.
Vollenhoven has stated “…there is not a single fact in
this story that’s
new”. Only the response by the present
government has a element of currenthood but this is not the
predominant or material
subject of the work. Even this is tenuous.
Many of the actions of the previous government are topics of
controversy and high public
interest which will have an impact on
society which will be discussed for many years to come. The work
cannot be conflated with
current events.
[36]
It was submitted that fair dealing was interpreted liberally in
Canada
Society of Composers Authors and Music Publishers of
Canada(SOCAN) v Bell Canada
2012 SCC 36
para 10 -11 and in
England
Pro Sieben Media AG v Carlton UK Television Ltd
[1999]
1 WLR 605
at 613. The term “fair dealing” has not
received judicial interpretation in South Africa. Various factors
have been
identified in comparative jurisprudence. It was submitted
that the following are included: the nature and purpose of the use;
the
nature of the copyright work; the amount and sustainability of
the use; the effect on the market and the value of the work. These
criteria are premised on bona fide use and without formulating a
comprehensive meaning; the least that can be stated in this case
is
that fairness encompasses a genuine purpose and not a pretext for a
purpose which is not contemplated under fair dealing such
as
dissemination to the public, even to restricted or selected
audiences. In conclusion, no bona fides in dealing with the work
has
been established by the Respondents. No case for the statutory right
to a single copy has been made. The Act does not provide
this right
and in any event there is no such reservation of ownership under the
TPC agreement. On the contrary it clearly vests
ownership in the
applicant of all materials made in producing the work.
[37]
Insofar as reliance was placed on s20 of the Act by VIA, it flows
from the statutory shift in
the definition of authorship of a
cinematographic work that the author’s moral right under s 20
of the Act vests in the Applicant
and not the Second Respondent. VIA
cannot claim any rights as author. There is no residual category of
authorship available to
it under the Act.
Constitutional
invalidity
[38]
The Respondents invoke freedom of expression under
s16 (1) of the Constitution, specifically subsection
(b) freedom to
receive or impart information or ideas and subsection (c) freedom of
artistic creativity. It is contended that the
exclusion of an
exploitation exception in the Act unjustifiably limits these rights
and that an exploitation exception should be
read into s 24. The
respondents say the applicants are violating Vollenhoven’s
freedom of speech by not allowing her
to show or distribute her own
documentary. This is disingenuous. Vollenhoven in her letter dated 28
June 2013 said:
“
I have told you
before that I think this is an important story and I will do my best
to get it out there. My legal advice is that
the SABC cannot stop me
from pursuing a current version of the story because the Corporation
own only a Documentary film made for
them not the whole story and
everything related to it, in perpetuity”.
[39]
The applicant concedes readily that the respondents have right to
tell the story in a different
work and have not attempted to stifle
this form of expression. In truth the respondents’ freedom of
speech is not impinged
at all. What is impinged is the use of the
work which the respondents sold to the applicant and were
substantially rewarded monetarily.
The copyrights are vested by law
in the applicants. This cannot be conflated with an infringement of
freedom of speech. Vollenhoven
shows that she is alive to the
distinction between the work and the underlying story or idea and
does not shirk from asserting
her rights to exploit the story as she
is well entitled to do.
[40]
The proposed wording of the Respondents’ reading is as follows:
“No owner is entitled
to enforce its copyright if the owner has
no intention to exploit that copyright, either commercially or
otherwise, unless the
owner is the author”. An alternative
formulation is “No owner is entitled to enforce its copyright
against the author
if the owner has no intention to exploit that
copyright, either commercially or otherwise”. Both these
proposals run foul
of the statutory definition of authorship. VIA has
no claim to be an author or co-author.
[41]
The Respondents do not challenge the constitutionality with s 21 of
the Act and acknowledge the
choice that VIA exercised in selling the
rights of copyright ownership to the Applicant. Their complaint is
the limitation of VIA’s
rights of freedom of expression under
the Act, no matter how the Applicant acquired those rights. This
position ignores the very
basic constitutional right which underpins
the Act which is the right of property in s 25 of the Constitution.
Although intellectual
property rights are not recognised as a
separate category in the Bill of Rights the courts have accepted that
intellectual property
rights indeed are contemplated by s 25(4) (b)
of the Constitution.
Laugh it Off Promotions CC v South African
Breweries International (finance) BVt/a Sabmark International
[2005] ZACC 7
;
2006
(1) SA 144
para 43. It may be remarked in passing, in that case the
court was concerned not with impugning the Trade Marks Act as
unconstitutional
but with a weighing of conflicting rights ie freedom
of expression v intellectual property rights in adjudicating a
defence to
trade mark infringement. This case is on an entirely
different footing as the respondents impugn the Act in principle as
curtailing freedom of expression.
[42]
In saying that the contractual option under s21 is beside the point
and does not render the Act
free of unconstitutionality, the
respondents’ stance is untenable and in bad faith. They seek to
be indemnified from the
consequences of alienating the work and the
rights thereto but simultaneously accept the quid pro quo under the
TPC agreement.
They are asking for the Act to be read or amended to
override their own consensual arrangements in the event that the
applicant
does not exploit the work – a condition that could
have been but was not stipulated. This undermines the sanctity of
contract
-
pacta servanda sunt
. It negates the
caveat
subscriptor
rule.
George v Fairmead
1958 (2) SA 465
A.
Limitation of freedom is irreconcilable with the right of choice. For
this reason alone the constitutional challenge is misconceived
and
should fail. The Respondents could have reserved exploitation rights
in the work within the four corners of the Act without
requiring any
amendments at all, by contractual arrangements to retain co-ownership
or by a licencing agreement. The submission
of the Fifth
Respondent that the Copyright does not infringe s 16 of the
Constitution is based on this reasoning and is upheld.
[43]
Even if my finding that the Act does not limit the rights under s 16
of the Constitution is incorrect,
I am of the view that the Act
undoubtedly balances freedom of expression under section 16 with
proprietary rights under s 25 of
the Constitution. The Act
strikes an appropriate balance and is justifiable as a law of general
application as contemplated
under s36 of the Constitution. No reading
in of s 24 of the Act is required.
The
review
[44]
The respondents apply in terms of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA)
for a review of the Applicant’s
decisions (i) not to broadcast the work and (ii) not to negotiate the
sale of the work to
the Second Respondent. The applicants contend
that the decisions do not constitute administrative action. Section 1
of PAJA in
its definition of administrative action contemplates that
the decision maker may be either an organ of state (subsection 1(a) )
or
‘
a natural or
juristic person, other than an organ of state , when exercising a
public power or performing a public function in terms
of an
empowering provision, which adversely affects the rights of any
person and which has a direct external legal effect …
‘
[45]
The applicant is a State owned public company regulated under the
Charter of the Corporation
contained in the
Broadcasting Act 4 of
1999
. By definition the applicant is a provider of a public
broadcasting service.
Section 6
(4) provides that the programming
must advance the national and public interest. The objectives of the
applicant are inter alia
under
s 8(g)
to provide radio and television
programmes and under
s 8(i)
‘to commission ….audio
visual material as may be conductive to any of the objects of the
Corporation.’ The objects
are wide ranging going far beyond
broadcasting. These include under
s 8
(j) establishing and
maintaining libraries and archives of materials and to make these
available to the public and under
s 8
(o) to develop, purchase,
acquire, use, sell or dispose of sound recordings films and
materials.
[46]
Thus the business of commissioning the work and deciding whether to
broadcast such work are inextricably
bound with the exercise of the
applicant’s public functions in terms of the empowering
provisions of the Broadcast
Act. However not all decisions which
exercise public functions or powers constitute administrative action.
There is no simple formula.
The definition of a decision in PAJA is
of little assistance as the examples enumerated in sub-sections (a)
to (g) of the definition
are illustrative and not a
numerus
clausus
. In
Bhugwan v JSE Ltd
2010 (3) SA 335
(GSJ).
Claassen J said at para 8: “ “What kind of action
will constitute a decision, will depend on the circumstances
of each
case”. Various tests have been formulated. In
Sokhela
v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal)
2010 (5) SA 574
(KZP) Wallis J said at para 61
“
There is
accordingly no mechanical process by which to determine whether a
particular exercise of a public power or performance
of a public
function will constitute administrative action. There will have to be
determined in each instance by a close analysis
of the nature of the
power or function and its source or purpose.”
[47]
It is argued by the applicant that it was acting in terms of its
editorial policies in deciding
not to broadcast the work and that it
is not uncommon for programmes commissioned by the applicant not to
be broadcast. Furthermore
the applicant expressly reserved the right
not to broadcast the work under clause 18 of the TPC agreement which
bound VIA. The
TPC agreement also conferred physical ownership of the
work and the related materials as well as copyright. VIA thus had no
rights
in the work under the TPC agreement. It was further argued
that the decision not to broadcast did not adversely affect the
rights
of VIA and this excluded the decision from the scope of
administrative action. This is indeed so.
[48]
The source and nature of both decisions sought to be reviewed are
within the purview of the contractual
provisions of the TPC
agreement, ie clause 18 and Schedule 5 clause 12.7. The processing of
the Request for Proposals and the selection
of the proposal certainly
constituted administrative action by the applicant. From the stage of
commissioning VIA and the signing
of the TPC agreement, the
subsequent production relationship between the parties, the
supervisory powers exercised by the applicant
and the pursuant
decisions are no longer administrative but contractual acts. In my
view the applicant was exercising its contractual
rights in making
both decisions. The correctness of the decisions do not play any role
in determining the question whether they
constitute administrative
action. It is accepted that the documentary is of public interest but
this does not somehow transform
the decision not to broadcast or
sell, into administrative action cognisable by PAJA. The decisions of
the applicant and the remedies
of the aggrieved party lie fairly and
squarely within contract.
[49]
Furthermore the actions of the applicant in respect of both decisions
are outside the arena of
its exercise of powers and functions as an
authority in relation to a subordinate party or the public. The
applicant in this context
is a private contractor on equal terms with
VIA, the other private contracting party. This is illustrated by
Cape
Metropolitan Council v Metro Inspection Services Western Cape CC and
Others
2001 (3) SA 1013
(SCA) para 18:
‘
The appellant is a
public authority and, although it derived its power to enter into the
contract with the first respondent from
statute, it derived its power
to cancel the contract from the terms of the contract and the common
law. Those terms were not prescribed
by statute and could not be
dictated by the appellant by virtue of its position as a public
authority. They were agreed to by the
first respondent, a very
substantial commercial undertaking. The appellant, when it concluded
the contract, was, therefore, not
acting from a position of
superiority or authority by virtue of its being a public authority
and, in respect of the cancellation,
did not by virtue of its being a
public authority, find itself in a stronger position, than the
position it would have been in,
had it been a private institution.
When it purported to cancel the contract, it was not performing a
public duty or implementing
legislation; it was purporting to
exercise a contractual right founded on the consensus of the parties,
in respect of a commercial
contract. In all these circumstances it
cannot be said that the appellant was exercising a public power. S 33
of the Constitution
is concerned with the public administration
acting as an administrative authority exercising public powers not
with the public
administration acting as a contracting party from a
position no different from what it would have been in, had it been a
private
individual or institution.’
See
also
Government of the RSA v Thabiso Chemicals
[2009] All SA
249
(SCA) para 18.
[50]
The decisions sought to be reviewed are therefore not administrative
actions under PAJA and this counter-application must fail.
The
distribution interdict
[51]
The applicant has established a right to the distribution interdict.
It must satisfy the requirement
of a reasonable apprehension of
irreparable harm and having no alternative remedy, both of which are
disputed by the respondents.
They contend that Vollenhoven has not
infringed the copyright and has given an undertaking, as mentioned
above. Had the matter
ended there the outcome may have been
different. However subsequent to judgment having been reserved on 25
May 2016, the applicants
filed an interlocutory application for leave
to file a supplementary affidavit. It was unopposed and leave to file
was granted
in an order dated 24 June 2016 .
[52]
The affidavit reported new facts and evidence which came to light
after the matter had been argued.
The deponent, Mr DS Vilakazi, the
acting legal services manager reported that on 25 May 2016 he became
aware of a video link on
Vollenhoven’s Facebook page of the
work. On 30 May and 1 June 2016 both he and Ms Mabaso of the
applicant’s attorneys
of record were able to click on and
actually view the video of the work on her Facebook page. Mabaso
filed a confirmatory affidavit.
He also found on You Tube an internet
video site that the work was posted on it in December 2013 being
after the undertaken by
Vollenhoven on 28 June 2013. An urgent
application for an interim interdict pending this judgment was
brought by the applicant
and was granted by Wepener J on 7 June 2016
( case no 2016/18766). The interdict restrained the respondents from
broadcasting,
reproducing, publicly showing, adapting and letting or
selling the work pending this judgment.
[53]
The respondents did not oppose the interdict and filed a Notice to
Abide. However Vollenhoven
filed an affidavit explaining that she did
not place the video on You Tube and she denied that the work could be
accessed from
her Facebook page. She avers that the deponent and the
attorney could only have seen a screen shot and it was impossible to
see
the video itself. An adverse inference is drawn from her failure
to oppose the urgent application since her affidavit is inconsistent
with abiding by the interdict. Credibility issues are not lightly
made in motion proceedings but due weight must be placed on
corroboration by the applicant’s attorney, as an officer of
this court. It is accepted that “it would play” means
exactly that. As a professional film producer it is also somewhat
unlikely that Vollenhoven would lack the expertise and skill
to
ensure compliance in totally removing the work from social media. The
version of the applicants is accepted. No reliance can
be placed on
the undertaking given by Vollenhoven who has subsequently been shown
to be unreliable. The harm is in the intrinsic
infringement of the
applicant’s lawful copyright in the work and in the contractual
breach by the respondents. Damages are
not appropriate as a remedy in
this situation. No commercial loss is involved.
The
delivery interdict
[54]
The applicant’s claims for delivery of a variety of production
materials is based on the
Act and the TPC agreement. It concedes that
Vollenhoven has already delivered to it one TX Master Tape, one DVD
of TX Masters and
one FC sheet. It claims delivery of (a) one copy of
these items (b) two protection masters, (c) two music cue sheets, (d)
cost
reports and (e) all raw footage. The respondents dispute some of
these items and it is necessary to resolve which items the applicant
has made out a case for an interdict. Several disputes are raised.
The Respondents deny that they have in their possession any
further
copies of items (a). This is not challenged by the applicants. The
respondents say that there is no obligation to provide
protection
masters and that they are no longer needed as the footage is in
digital format. The applicant insists on them for reasons
of storage
space. The Respondent say that the music cue sheets are also
unnecessary as the music is not subject to intellectual
property
rights. Only stock and specially composed music was used. The
applicant says it requires these to know what music was
used, deal
with queries by the composer and royalty issues. In respect of (d)
Vollenhoven sent a cost report in an email dated
28 March 2013. The
applicant says it is inadequate but is vague as to the queries that
the applicant required to be addressed.
This is insufficient reason
in my view. The respondents tendered to provide the raw footage in
the papers but at the time of the
hearing had not yet done so. The
disputes in respect of (b) and (c ) cannot be resolved on the papers.
The first time the applicant
requested delivery of items (a) to (d)
was in the letter of demand prior to instituting these proceedings.
Prior thereto it paid
in full for what it now complains is incomplete
delivery. This inconsistency also weighs with me in exercising my
discretion against
an interdict for (a) to (d) and (f). An interdict
should be granted only in respect of the raw footage (e).
The
contractual counter application
[55]
Having found that the applicant has no actual intention of exploiting
the work clause 12.7 of
Schedule V of the TPC agreement must be
considered. Two years have elapsed since the work was delivered. The
applicants contend
that this did not constitute final delivery
because delivery was incomplete. However the applicant accepted this
delivery, as stated
above by making full payment and this argument is
rejected. The clause provides that the reasons for not broadcasting
the work
should be within the control of the applicant. The
respondents have shown that Vollenhoven offered to co-operate with
the applicant
in implementing the changes it required in terms of
clause 19 which states
“ In the event
that the PRODUCER fails to implement the changes as requested by the
SABC, the SABC shall not be obliged to
either broadcast and/or pay
for such PRODUCTION and /or episode or programme as the case may be”.
[56]
It was within the power of the applicant to ensure that the changes
were made to its satisfaction
and the respondents cannot be held
responsible for the changes not being implemented which led to the
applicant failing to broadcast
the work. The applicant had final
editorial control. Thus the conditions for the applicant to negotiate
in good faith with VIA
have been fulfilled. The clause does not
stipulate that the negotiations should be specifically based on the
applicant selling
the work and its rights to VIA. This is undoubtedly
included in the intent of the clause but is not exhaustive. The
parties may
agree on a licencing arrangement or any other
commercially sound quid pro quo. The purport of the clause is
sufficiently clear
and does not fall foul of the caveat sounded in
Southernport Developments (Pty) Ltd v Transnet Ltd
[2005] 2
All SA 12
(SCA) that a promise to negotiate which is too illusory,
vague or uncertain cannot be enforced.
[57]
The issue is whether the agreement to negotiate (pactum de
contrahendo) is enforceable absent
a deadlock breaking mechanism in
the TPC agreement. There have been conflicting decisions. In
Premier
Free State and others v Firechem Free State (Pty ) Ltd
2000 (4)
SA 413
SCA it was held at para 35 that the parties had an absolute
discretion to agree or disagree and an agreement to negotiate to
conclude
an agreement could not be enforced. In
Everfresh Market
Virginia (Pty) Ltd v Shoprite Checkers (Pty )Ltd
2012 (1) SA 256
(CC) Moseneke DCJ for the majority of the court remarked obiter at
para 72:
“
Were a court to
entertain Everfresh’s argument, the underlying notion of good
faith in contract law, the maxim of contractual
doctrine that
agreements seriously entered into should be enforced, and the value
of ubuntu, which inspires much of our constitutional
compact, may
tilt the argument in its favour. Contracting parties certainly need
to relate to each other in good faith. Where there
is a contractual
obligation to negotiate, it would be hardly imaginable that our
constitutional values would not require that the
negotiation must be
done reasonably, with a view to reaching an agreement and in good
faith.”
[58]
In
Makate v Vodacom Ltd
2016 (4) SA 121
para 100 Jafta J after
considering both these judgements said that this issue remained a
grey area in our law. However the respondents
do not seek a deadlock
breaking mechanism or that a substantive agreement must necessarily
eventuate. They content themselves with
an open ended process of
negotiation in good faith by the applicants as contemplated in clause
12 (7). The reasoning in
Everfresh
is compelling, and even
though obiter, it is of highly persuasive value in this court. It is
unequivocal as to how the common law
of contract should be developed
under the Constitution. I find myself constrained to follow this
approach and the respondents’
counter application should
succeed.
Costs
[59]
Both the applicants and the first and second respondents have been
partly successful and neither
party has conducted itself in a
blameless manner. They should bear their own costs. The fifth
respondent sought no costs order.
The
order
[60]
The following order is made:
1
The first and second respondents are finally interdicted from
infringing
the applicant’s copyright in the cinematographic
film called “TRUTH BE TOLD: PROJECT SPEAR” (the work”)
by:
1.1
broadcasting the work;
1.2
reproducing the work in any manner or form including making a still
photograph therefrom;
1.3
causing the work to be seen or heard in public;
1.4
causing the work to be transmitted in a diffusion service;
1.5
making an adaptation of the work; and
1.6
letting or offering or exposing for hire or sale by way of trade,
directly or indirectly,
a copy of the work.
2
Directing the first respondent to deliver to the applicant within 14
days
of receipt of this Order, the raw footage in relation to the
work.
3
Directing the applicant within 14 days of receipt of this order to
initiate
and enter into negotiations in good faith with the
respondents pursuant to Schedule V clause 12.7 including but not
limited to
the sale of the work.
4
Each party shall pay his/her/its own costs.
L
NOWOSENETZ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel
for the applicant :
C Puckrin SC, T Motau, P Cirone
Instructed
by:
Werksmans Attorneys, Sandton
Counsel
for first and second respondents:
J
Brickhill, M Bishop, N Khumalo
Instructed
by:
Legal Resources Centre, Johannesburg
Counsel
for the fifth respondent : NH
Maenetje SC, K Mhango
Instructed
by:
Werksmans
Attorneys, Sandton
State
Attorney, Johannesburg
Date
of hearing:
23, 12, 1 1May 2014
Date
of judgment: 2
Sept 2016