February 4, 2020 - South Africa

A Broadcast or a Film... It’s a Photo-Finish!
  by Rachel Sikwane

In South Africa, copyright judgments are few and far between, especially judgments of the Supreme Court of Appeal (“SCA”). This makes the recent case of Tellytrack v Marshalls World of Sport (Pty) Ltd and others, worth noting, even if it does deal with a somewhat esoteric issue.

The case concerned the world of horse racing. In particular, the issue of whether bookmakers who allow customers at their premises to view horse racing events that are broadcast on DStv are infringing copyright or not.

Tellytrack is a partnership between various companies that are involved in the horse racing business: Phumela Gaming and Leisure Limited, Gold Circle (Pty) Ltd and Kenilworth Racing (Pty) Ltd. Horse racing in South Africa is big business, with some nine race tracks, 400 totalisator betting outlets (TABS), and continuous horse racing on DStv channel 239 from 10h00 to 23h00.

Tellytrack operates a television control room that receives raw television feeds from around the world via satellite and, in the case of South African races, Tellytrack has its own outside broadcast units at the tracks. Tellytrack enhances these feeds through computerised editing, adding graphics, data, previews and interviews. Once enhanced, a feed is sent to Multichoice by fibre optic cable to be shown on DStv’s channel 239, where it is billed as a live broadcast. The process is apparently super-fast, with there being no more than a seven-second delay.

Tellytrack sued various bookmakers who were allowing their customers to view these races at their premises, yet weren’t paying the necessary licence fees. Tellytrack wanted an interdict, but it also claimed that it had suffered damages, alternatively that it was entitled to a reasonable royalty.

The legal issue was whether what was being shown in the bookmaker’s premises were cinematograph films rather than broadcasts, two separate categories of works protected by copyright law. The first court found that what was being displayed was a broadcast of a live event, and that there was therefore no fixation or storage of images as required by the definition of a cinematograph film.

The judgment of the SCA was handed down by Judge Navsa. The judge examined the law systematically:

What is a cinematograph film?

Section 1 of the Copyright Act, 1978 gives us a fairly long-winded definition, but the crux of it is that there must be a “fixation” of a “sequence of images” that is capable of being “seen as a moving picture”.

What are the requirements for copyright?

Section 2(1) tells us that in order to be eligible for copyright, a work must be “written down, recorded, represented in digital data or signals or otherwise reduced to a material form.” But there are two exceptions to this: broadcasts and programme carrying signals.

What does the copyright in a cinematograph film entail?

Section 8 says that copyright entails the exclusive right to do or authorise the reproduction of that film or the showing of that film in public.

When is the copyright infringed?

Section 23 says that copyright is infringed if any person, who is not the owner of the copyright and does not have the permission of the copyright owner, does anything that “the owner has the exclusive right to do or authorize.”

What about broadcasts?

As alluded to earlier, a broadcast does not need to be reduced to a material form before it can enjoy copyright. Furthermore, it is not eligible for copyright until it has been broadcast.

Judge Navsa came to a different conclusion to the trial judge. He took the view that what the public saw was a sequence of images seen as a moving image, and that those images including interviews and overlay imposed by a computer program had been reduced to a material form: “What is seen on channel 239 is what has already been recorded at the OB [outside broadcast] van and the Tellytrack control room...at the time that a race event is seen on channel 239 it has already been recorded and stored.”

He went on to say this: “This is not a case in terms of which Multichoice is claiming copyright infringement in relation to the broadcast of the material on channel 239... the case is about Tellytrack claiming copyright in cinematograph films which encompass sound recordings and the graphic enhancement...there is something to be said for the refrain on behalf of the appellant, namely that one cannot broadcast ‘nothing’ and that consequently what the public was being allowed to view at the respondents’ business locations was a cinematograph film.”

So, the court granted an interdict and an enquiry into damages. It did not, however, allow a claim for additional damages (sometimes referred to as “punitive damages”), as provided for in section 24(3) of the legislation.

As stated before, a very specific judgment, but one that is important nonetheless.

In conclusion, it is worth noting that Judge Navsa referred to a rare earlier SCA copyright decision, the case of Golden China TV Game Centre & Others v Nintendo Co. Ltd. Here, the court held that a video game qualifies for protection as a cinematograph film. In the process the court said this, words that can of course have a wider application:

“As with many definitions in the Act and its antecedents very wide terms have been employed. The only reason for this can be an intention to cover future technical innovations by using general words. Legislative inertia ought not to impede human ingenuity and the reasonable protections thereof.”

Rachel Sikwane Executive IP [email protected] +27 83 529 3639