Thursday, 23 February 2017

Darren Olivier

SABC v Via : Freedom of Expression and Copyright in SA

One minute read

The SABC asserted a copyright infringement and contractual claim over a documentary that it had commissioned from Via and paid for, and had never aired, against Via. Via defended arguing that it had a right under freedom of expression to retain a single copy and use it because the SABC never intended to broadcast it, and because it was in the public’s interest. Via also claimed that broadcasting it was within other fair dealing exceptions, and that the decision not to air the documentary should be reviewed under the Promotion of Administrative Justice Act.

In a thorough judgment by acting judge Nowosenetz which traverses the principles of copyright legislation within the context of the South Africa’s constitution, both parties were successful to some extent. However, the Copyright Act was the most successful of all. The SABC obtained their interdict successfully arguing against the exploitation and single copy exception based on the constitution and the broadening of the defined fair dealing exceptions under the Act. Via managed  to curtail their obligations to deliver up all that was asked for.

Discussion & Summary

Copyright legislation in South Africa has taken a real hammering lately. From the much talked about changes mooted in the Copyright Amendment Bill to the tough judgment in Moneyweb v Media 24, it has been a testing time for the 39 year old piece of legislation.

The South African Broadcasting Corporation (SABC) has also been the subject of criticism and calls for reform, so perhaps when it sought an interdict against the broadcast of one of its commissioned works, on the basis of copyright, it found an equally war-torn but ultimately worthy bedfellow.

In its case against film production house Via-Vollenhoven and Appollis Independent CC and others (collectively, Via), which evoked interest from the Freedom Of Expression Institute, the SABC and copyright had to endure a legal barrage based on constitutional principles.
Notably, Via argued (see para 25) that the Copyright Act was never intended to prevent distribution of a documentary when the owner (SABC) has no intention to exploit the film (the exploitation exception). In other words Via retained a right to exploit the work even though SABC held the copyright. This is somewhat of a similar justification to the compulsory licensing provisions found in patent legislation.

The facts
The facts, rather briefly, are that SABC commissioned an investigative documentary which was entitled “Project Spear: - Stolen billions, spies and lies” (the work) in 2011; a piece about apparently illegal financial lifeboats given to financial institutions under the previous government. By 2012 a version of the work was delivered to SABC. The work was rejected by the SABC for being defamatory and contrary to their editorial policy, according to the papers.
Via wanted to broadcast the work and took steps to do so using Noseweek and 702 but stopped when requested to do so by SABC’s lawyers, making various undertakings. SABC then approached the court for relief on breach of copyright and on a contractual claim relating to its commissioning agreement with Via. Amongst the defences and counter claims were that:

1.     The Copyright Act (the Act) entitles Via to retain a single copy of the work;
2.     The Act should be interpreted to imply the exploitation exception based on freedom of expression:

Courts are bound to read legislative provisions through the prism of the Constitution.” according to the decision.

Housekeeping issues
The court methodically concluded that the work is protected by copyright, that the SABC (in commissioning the work and paying for it) is the owner of the copyright (subject to any agreement to the contrary) and that copyright is a positive right enabling it to “exploit” the work in a number of ways, subject of course to certain limited fair dealing exceptions (research and private study, reporting on current events etc – see para 17 of the judgement).
There is also an exception if the reproduction is prescribed by regulation and is not in conflict with or unreasonably prejudicial to the legitimate interests of the copyright owner (S13 of the Act).
Through this analysis, the court also concluded that the use of raw footage required to make the work would, effectively, infringe the copyright in the work. It did not consider it a separate work. This is important because copyright bestows a positive right i.e. a right to, for example, reproduce the work
There is also the factual conclusion reached by the court that the SABC had no intention to exploit the work or the raw footage (para 24). This is important in the context of Via’s constitutional defence.

The exploitation exception denounced
The exception is thoroughly dealt with at paras 25-33. The court concluded:
“[Via’s] construction of public good or welfare is equated to dissemination of ideas and this is nowhere to be found or implied [in the rationale for copyright protection, not just in South Africa but elsewhere too]”
In applying a constitutionally compliant meaning to legislation, the interpretation must not be “unduly strained”.
“This statutory shift of authorship of a film does not necessarily mean that the filmmaker cannot be the owner [i.e. it can be changed through agreement]”
“Even then it does not per se limit freedom of expression…”

The single copy exception
Via were arguing that the author of the work should be entitled to keep a single copy of it as part of a general right to fair dealing. Reliance was placed on S13 (see above) and that SABC were not going to exploit the work ie that this was a special case. However the court was having none of it, concluding that there is no single copy exception in the Act and that, unlike the position in other countries, the fair dealing exception in South Africa is confined to a finite list.
Via then argued that using the work fell within the exceptions relating to “criticism and review” and/or “reporting on current events”. Again the court was not persuaded going as far as to say that this version on the facts, was “patently a sham”. Via’s intention was to “get the story out there”, and the work did not cover current events.

Constitutional invalidity
The argument was that the exclusion of an exploitation exception was contrary to Via’s freedom of expression. The difficulty Via had with this argument was that the right to tell the story was not prohibited by the Act, only the use of the work (for which the SABC had paid) was restricted. Hence it did not violate freedom of expression.
The Court also upheld the notion that intellectual property rights are contemplated as a form of property in the Constitution (see para 41). You may recall that this formed the basis of Dean’s argument on the unconstitutionality of plain paper packaging regulations. In this decision it formed the basis of the court’s view that the Act balances freedom of expression with proprietary rights under Section 25 of the Constitution and that the relevant provisions of the Copyright Act are justifiable law (see para 43).
The Court also dealt with the rationale behind ownership of the work vesting in the SABC – the corporate, and not Via – the creator, under copyright legislation. It concludes that the Act “strikes a balance” between their interests.

The review under PAJA
Added to Via’s extensive arguments was that SABC’s decision not to exploit the work and/or not sell it the work to one of the respondents should be reviewed under the Promotion of Administrative Justice Act. SABC, a state owned company, contented that the decisions do not constitute administrative decisions but contractual ones under their agreement with Via. The court agreed (para 48-9).
The remainder of the judgment deals with specifics of the delivery up and a counterclaim based on a contract for SABC to negotiate in good faith with Via including but not limited to the sale of the work.
In short, SABC were partly successful in obtaining the interdict and delivery up of the raw footage but Via successfully obtained an order that SABC had to negotiate with them in good faith, as had been agreed in the commissioning agreement.

Final Comment
Whether the attack on the provisions of the Copyright Act based on constitutional grounds was a function of the strength of the Legal Resources Centre in this area or because the copyright defenses were so weak is not clear but it does show the vulnerabilities of intellectual property legislation to constitutional challenges. It is not the first of these cases and will not be the last.

The judgment has not been appealed. The story though, is still in the press.

Darren Olivier  

Darren Olivier

Darren Olivier

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