On or about 25 November 2019, The Supreme Court of Appeal (“the SCA”) upheld an appeal against an order of the KwaZulu-Natal Division of the High Court, Durban.
The appeal was lodged by Tellytrack, a partnership between Phumelela Gaming and Leisure Limited, Gold Circle (Pty) Ltd and Kenilworth Racing (Pty) Ltd.
In the court below, as in the SCA, Tellytrack claimed that Marshalls World of Sport (Pty) Ltd and six other Respondents, who all run bookmakers businesses, infringed Tellytrack’s copyright in cinematograph films by allowing the viewing by the public at their places of business live national and international horse racing events, on Tellytrack’s DSTV channel 239.
In denying infringement of copyright, the Respondents submitted that what was being shown on the Tellytrack channel was not a cinematograph film, but a broadcast. The Respondents further contended that the images shown on channel 239 were not fixated or stored, inter alia, on film or any other material of data, and therefore did not satisfy the definition of a cinematograph film in terms of s 1 of the Copyright Act 98 of 1978.
In determining whether or not Tellytrack was displaying a cinematograph film, the Court considered the work done by Tellytrack’s employees before the live races were viewed by the public on channel 239.
The Court found:
- that the images from the race events were recorded on more than one occasion to allow for the adding of enhancements such as audio and graphics;
- that what the bookmakers allowed the public to view at its business premises on the Tellytrack channel were “a sequence of images seen as a moving picture constituting in the main horse racing events”; and
- what was seen on channel 239 was already recorded and stored at the Tellytrack control room at the time the race event was seen on channel 239
The SCA held that there had been an infringement of copyright and the appeal was consequently upheld with costs, including costs consequent upon the employment of two counsel.
Written by Jonathan Green and Stefan Bezuidenhout