South Africa: A rare copyright judgment

cinematograph film
17 Jan 2020

Copyright judgments from South Africa’s Supreme Court of Appeal (SCA) are relatively rare. So the recent judgment of Tellytrack v Marshalls World of Sport (Pty) Ltd and others (971/2018) (2019) ZASCA 153 is worth some discussion. Even if it does deal with some very specific facts and a rather narrow area of copyright law.

What happened here was that Tellytrack, a partnership made up of racetrack operators and betting companies, claimed that various bookmakers had infringed the copyright that the partnership Tellytrack owned in particular cinematograph films. The claim was that the bookmakers had done this by allowing the public to view live national and international horse racing events at their premises on a dedicated horse racing channel (Channel 239) on South Africa’s digital satellite TV service (DSTV) – this channel is in fact owned by the partnership Tellytrack.

The evidence showed that Tellytrack receives raw TV footage from various racetracks around the world, including South Africa. In the case of South African racetracks Tellytrack does have production teams at the racetracks operating from outdoor broadcast vans. Tellytrack edits, compiles and adds graphics to the footage and, once enhanced, the footage is sent to the headquarters of DSTV to be shown on Channel 239.

The defence of the various bookmakers was that what was being shown at their premises was not a cinematograph film but a broadcast, with the images not being fixated or stored on film. But the court disagreed. It held that what was being shown at the bookmakers was indeed a cinematograph film, a term that is defined in the Copyright Act as follows: ‘The first fixation by any means whatsoever on film or any other material of a sequence of images capable, when, used in conjunction with any mechanical, electronic or other device, of being seen as a moving picture and of reproduction, and includes the sounds embodied in a sound-track associated with the film.’

The court said that ‘what the public is allowed to see at the respondents’ business premises are a sequence of images seen as a moving picture constituting in the main horse racing events…those images and others, including those of studio interviews and the overlay of all the items imposed by way of the computer program, have indisputably been reduced to material form, by way of the recordings on the aforesaid occasions.’

In coming to its decision the court referred to a well-known earlier South African judgment dealing with Nintendo, where the court held that a video game qualifies as a cinematograph film.

As we said earlier this judgment deals with an unusual and very specific issue. It is, however, reassuring to see the appeal court come down in favour of the copyright owner.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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