Wednesday 30 September 2009

Darren Olivier

Mr Video appeal

Yesterday the Supreme Court of Appeal handed down its decision in the much awaited Mr Video case. This original case was reported on by Afro-IP last year (here) and since that time has had many a practitioner twisted around the logic of the Copyright Act applied to the rental of DVD's under contracts of exclusivity. Those who felt confused will still feel confused - this judgment did not delve deeply into that logic when focusing on the grounds of appeal which were:

a. the standing of Nu Metro (it being contended that Nu Metro had not proved that it had a valid licence to proceed against the Video Group)
b. the Owner's entitlement to order for delivery up; and
c. three issues as to costs

Right: copyright koeksister - before Mr Video (left diagram) after Mr Video (right diagram)

Advocates Ginsburg SC and Marriott had the successful trip to Bloemfontein this time. Sholto-Douglas SC and Gordon, appearing for the Appellants, were not as fortunate as the appeal bench dismissed the appeal on all three grounds finding that:

a. Nu Metro was entitled to join the proceedings as the only local distributor of the Owners in circumstances where the Video Group had conceded to copyright infringement;
b. The judge's discretion to order delivery up of the DVDs was warranted. It was not necessary for the Owners to allege and prove that the making of the article (DVD's) in RSA by the person who as a fact made the article in the USA would have constituted an infringement in RSA. The Judge felt that there was an inference that such infringement would occur (ed- those wanting an explanation of exactly how the infringement occurs under the Copyright Act will be disappointed); and
c. The conduct of the Video Group (eg the flagrant way in which the Group bypassed the coding restrictions) justified an order for a special/higher costs award against them.

The Mr Video facts seem quite antiquated in a copyright space dominated these days by the issues relating to peer-to-peer file sharing concerns, as illustrated in the recent Pirate Bay case in Sweden and its commentary (see here, for instance). The decision does show though that RSA courts recognise and enforce the rights of content creators and are likely to do so whatever the format of the copying or sharing.

Darren Olivier

Darren Olivier

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