South African Music Rights Organisation Ltd v Trust Butchers (Pty) Ltd 1978 (1) SA 1052 | Tobias Schonwetter | January 12, 2016

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South African Music Rights Organisation Ltd v Trust Butchers (Pty) Ltd 1978 (1) SA 1052

by Tobias Schonwetter
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SOUTH AFRICAN MUSIC RIGHTS ORGANISATION LTD v TRUST BUTCHERS (PTY) LTD 1978 (1) SA 1052 (E)

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Citation

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1978 (1) SA 1052 (E) 

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Court

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Eastern Cape Division

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Judge

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Addleson J

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Heard

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May 23, 1977; May 24, 1977

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Judgment

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June 30, 1977

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Annotations

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Link to Case Annotations

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Judgment

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ADDLESON, J.:

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The plaintiff claims an interdict and damages in the sum of R1 000 against the defendant for alleged breach of copyright.

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The defendant's plea put practically all the plaintiff's material allegations in issue but the disputes were substantially curtailed by an agreement reached at the pre-trial conference and recorded in the minute handed in under Rule 37. As a result the following facts are not in dispute:

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    (a) The plaintiff is a non-profit company, limited by guarantee. It holds, by assignment, the copyright "of the majority of original musical works written and published in South Africa since 1962". The copyright owned by the plaintiff includes the right to perform those musical works in public and to authorise others to perform them and to collect royalties for such performance. The plaintiff also holds, by assignment from the Performing Rights Society of England, the copyright in a very large number of similar works written and published in the United Kingdom, North America, Europe and South Africa.

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   (b) The copyright referred to is that which exists under the Copyright Act, 63 of 1965, to which reference will later be made; and as a result the plaintiff at all material times had the exclusive right in South Africa to authorise public performances, and to collect royalties for such performances, of the musical works in which it held the copyright. Such authorisation is permitted by the plaintiff by way of licence to, or the payment of royalties by, the persons so authorised.

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    (c) The defendant has since 1968 conducted the business of a butchery in Mount Road, Port Elizabeth, to which butchery (which is a retail self-service institution) the public have access.

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   (d) For a period which is in dispute the defendant has had a radio receiver on the premises and has from time to time operated that receiver to receive broadcasts from the South African Broadcasting Corporation. During the time when those broadcasts were being received, including 12 and 21 March 1975, a number of musical (to use that word in its most generous sense) works were "played" by the defendant in its butchery; that is, the works were emitted from the loudspeaker of the radio in the butchery. The names of these works are set out in para. 10 of the plaintiff's particulars of claim and are works in which the plaintiff holds the copyright.

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 It is common cause that the defendant was not licensed by the plaintiff to perform in public any of the works in question.

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The plaintiff contends that the defendant has caused those works to be performed in public "since at least November 1972... to date hereof" and has also caused other works in which the plaintiff holds the copyright to be performed and has thereby infringed the plaintiff's rights in such works; and that it believes that the defendant will continue to infringe those rights. The plaintiff therefore claims an order interdicting the defendant from performing or permitting the performance in public, without the plaintiff's authorisation, of the musical works in which the plaintiff holds the copyright. The plaintiff also claims damages in the sum of R1 000 for the defendant's past infringement of copyright, the details of which claim I shall discuss later.

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In terms of the Rule 37 minute "the only issues between the parties for determination" by this Court are said to be:

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   "(ii) whether the performance of the musical works by the defendant as alleged by the plaintiff was public";

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and

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  "(ii) whether the plaintiff has established damages in the sum claimed."

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However, since the defendant has also disputed the plaintiff's right to an interdict, that claim also has to be determined.

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The first issue really involves two questions of fact. Firstly, was the radio on the defendant's premises played sufficiently loudly to be heard  G by members of defendant's staff and customers in the shop; or was it played so softly that it could only be heard by the defendant's managing director, Mr. Coleske and his wife in their office? In the former event, it was conceded by the defendant that this would constitute the "public" performance of the works in question; that is indeed clear from the discussion of the meaning of "public performance" in Copyright Law by Copeling at pp. 76 - 77, and Copinger and Skone James on Copyright, 10th ed. at pp. 198 - 200, and see also The Performing Rights Society v Rangers F.C. Supporters Club and Others, 1975 R.P.C. 626 at pp. 635 et seq.

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The first question, whether the performance was public, seems to me to present no difficulty of decision and does not require extensive reference to the evidence. In fact, Mr. Rossouw for the defendant, in the course of his argument, did not attempt to attack the substance of the plaintiff's evidence in this regard - and in my view, wisely so. There is clear and acceptable evidence from Mr. Bell, an inspector employed by the plaintiff, and his assistant, Mr. Chauke, that on 21 October 1972, 13 February 1975, 12 March 1975 and 31 March 1975 they visited the defendant's premises and heard musical works playing in the butchery - and indeed, that the music was audible from the pavement outside; that they saw a radio connected to two extension loudspeakers on either side of the store from which the music was emanating and that it was clearly audible to staff and customers in the butchery. On 12 and 21 March, Mr. Bell made arrangements to tape-record the same music as was being played in the butchery (excluding a gramophone record which was at one stage played on a record player there) and established that over a period of several hours the defendant caused to be publicly performed, as part of a programme being broadcast on the radio, a number of works in which the plaintiff holds the copyright. The names of these works are recorded on Mr. Bell's reports, exhs. "D" and "E".

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As far as this part of the case is concerned, the evidence of Bell and Chauke was not seriously or effectively attacked in cross-examination. While I am aware that they are employees of the plaintiff and might therefore be inclined to favour and to attempt to re-inforce the plaintiff's case, I can find no basis for doubting their evidence. By contrast the evidence for the defendant on this issue was singularly tentative and unimpressive. In effect Mr. Coleske admitted that between October 1972 and August 1975 (when the summons in this case was served on him) the radio with its two loudspeakers was played in a fairly central and entirely open position in the butchery. Although he contended that the loudspeakers were next to each other and not on opposite walls; and that the quality of the radio reception was not always good (when machinery was being used in the butchery) I prefer and accept the evidence of Bell and Chauke, whose demeanour and credibility were superior to that of Coleske. The other witness for the defendant, an employee named Coetzee, was most unsatisfactory and unconvincing. He was thoroughly ill at ease in the witness-box and hesitant and vague in his answers and I feel that I can place no reliance whatsoever on his evidence. In addition, when Mr. Bell visited Mr. Coleske, the latter did not deny that the music was clearly audible in the butchery. Similarly, a number of letters to the defendant between 1 November 1972 and 4 January 1973, and again between 21 February 1975 and 23 June 1975, specifically alleged that the defendant was "publicly performing copyright music in your store"; and the defendant's only reaction throughout that period was a letter of 9 January 1973 in which it was stated that

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   "the radio playing in the above business is merely a radio, no tapes, records or any other compositions are attached or played. The radio is for my own use and not for public use."

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In the light of the evidence, the statement in the last sentence is clearly not correct and the defendant's attitude in general seems to me to support the evidence for the plaintiff that the defendant had created facilities in its butchery whereby music was publicly performed, in that the music received on the radio was clearly audible to staff and customers on the premises.

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The second factual question is the period over which this public performance took place. Mr. Coleske said that he acquired control of the defendant in 1968 and at that time had a small portable radio in his office, which he played for his own benefit and for that of his wife, mainly in order to hear the news. In 1972 that radio was stolen in a burglary and he then acquired the present apparatus - a combination of radio and record-player with the two separate loudspeakers. Because reception was poor in the centre of the shop, he placed the new radio near the front door, where it was seen by Bell and Chauke. When he received the plaintiff's summons in August 1975, he caused the radio to be disconnected and to be stored with its loudspeakers on top of the office partition - as it appears in the transparencies, exhs. F1 and F2, which were taken by the plaintiff in December 1976. He admitted that, approximately one week ago, Bell saw the radio and loudspeakers in the same position as they had been during his previous visits; but he explained that they had recently  C been placed in that position in case they were required for inspection for the purposes of this case.

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There is evidence that the portable radio remained in the defendant's office and that the position of the office itself has been moved from time to time since 1968. Coleske himself is hard of hearing; the office consisted of partitions without a "ceiling" and with a swing door. Coleske in fact did not seriously deny that radio could have been heard by staff and customers and such denials as he made were very half-hearted and unimpressive. It seems clear to me that his attitude, all along, was that he possessed a radio listener's licence and was entitled to play his radio in the butchery; and presumably he was not even conscious up to 1972 that he might be infringing copyright in doing so. I have already indicated that I can attach no value whatsoever to the evidence of Coetzee. While, therefore, there is no evidence for the plaintiff as to the date when these public performances commenced, it seems to me that on the evidence of Coleske, his attitude towards his right to play his radio as he wished and on the probabilities, I am entitled to find that the public performance of music over the radio commenced in 1968 and took place continuously thereafter.

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As to the date on which the performances ceased, however, I can find no basis for rejecting Coleske's evidence (supported, for what it is worth, by Coetzee) that he disconnected the radio when he received the summons in this case. It seems probable that he would do so, at least until the action were determined, when faced with a claim for an interdict, damages and Supreme Court costs. Moreover there is some corroboration for his evidence in the fact that the radio was apparently not in use when the transparencies, Fl and F2, were taken in December 1976. While I am sceptical of his explanation for recently restoring it to its previous position, I cannot reject that explanation on the evidence before me.

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 I find therefore that the defendant regularly caused public performances, to take place, from 1968 to August 1975, of musical works broadcast by the South African Broadcasting Corporation and received by the radios, then in the butchery. Since it is not disputed that the plaintiff holds the copyright in approximately 90 per cent of the works in which copyright subsists, it follows on a balance of probabilities that there was an infringement of the plaintiff's copyright in each of the years from 1968 - 1975 inclusive. There is no reason to believe - nor was it suggested by the defendant - that music was not "played" on the radio in the defendant's premises in any of those years, or that in any particular year the "playing" of the radio was so limited as to exclude the probability that there was a breach of the plaintiff's copyright in any of those years, of the works in which it held the copyright.

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Since it is common cause that the defendant was not licensed by the plaintiff for such public performances, the defendant's breach of copyright entitled the plaintiff to damages.

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Sec. 18 of the Copyright Act provides as follows:

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   "(1) Subject to the provisions of this Act, infringements of copyright shall be actionable at the suit of the owner of the copyright, and in any action for such an infringement all such relief by way of damages, interdict, accounts or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringements of other proprietary rights.

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   (2) Where in an action under this section an infringement of copyright is proved or admitted, and the court having regard (in addition to all other material considerations) to:

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   (a)   the flagrancy of the infringement; and

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   (b)   any benefit shown to have accrued to the defendant by reason of the infringement,

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   is satisfied that effective relief would not otherwise be available to  D the plaintiff, the court shall in assessing damages for the infringement have power to award such additional damages as the court may consider appropriate in the circumstances."

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The actual damages suffered by the plaintiff would include the licence fees which the defendant should have paid for the years during which the copyright was infringed. See Performing Rights Society v Berman and Another1966 (2) SA 355 (SR) at p. 356. The evidence of Mr. Roos, the secretary of the plaintiff, explains the basis on which such licence fees are calculated, namely on the area of the premises in which the performance takes place and the number of staff there employed. On the information which was finally disclosed by the defendant at the trial and  F the calculations done by Mr. Roos on exh. "T", the total licence fees, together with interest at 10 per cent, which the plaintiff should have received for the years 1968 - 1975 inclusive, amount to R220,13 and this sum must therefore be awarded to the plaintiff.

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In addition, Mr. MacArthur, for the plaintiff, has asked that damages include the costs incurred by the plaintiff in establishing the breach of copyright. He contended that this would at least include a pro rata share of the cost of investigations by Bell and Chauke. Mr. Roos estimated that these could conservatively be calculated as follows, taking into account the daily cost of such investigations:

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Two visits of one hour each in 1972      R15

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Two visits of one hour each in 1975   R20

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Two full days of taping the performances in the defendant's

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premises in March 1975 and checking the information and

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writing the necessary reports   R160

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   ______

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   Total   R195

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   ______

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Mr. Roos emphasised that these costs excluded a pro rata share of many related costs, such as administrative expenses, correspondence etc. and he contended that R195 was the minimum amount expended by the plaintiff in establishing the defendant's infringement of copyright.

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The defendant was not in a position to dispute the figures quoted by Mr. Roos but Mr. Rossouw contended that these costs were not damages but were part of the costs of preparing for this action and should therefore be recoverable, if at all, as part of the costs of a successful action. Although he did not quote any authority for this proposition, he equated the investigations of Bell and Chauke with the cost of a medical examination intended to qualify a doctor to give evidence on damages in an action arising out of a motor accident.

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Although I regret that counsel on both sides did not give me more assistance on the question of damages, I do not think that Mr. Rossouw's analogy is a good one. It is part of the plaintiff's functions to collect licence fees in respect of the performance of works of which it holds the copyright: and, in order to protect the artists to whom royalties are due, the plaintiff must necessarily investigate whether infringements of the nature with which this case is concerned are occurring. It seems to me that, if a person is persistently infringing such rights, he cannot complain if the plaintiff claims from him the reasonable and necessary costs of establishing that such an infringement has occurred. The position would in my view be different in regard to investigations which take place after a clear infringement has been detected and which are then done solely for the purpose of proving the infringement in Court. In the present case, however, the plaintiff's ability to enforce and protect its copyright depended on discovery that such copyright was being infringed and that could only be done by the investigations in question. Moreover it must be borne in mind that the defendant failed to respond satisfactorily to written complaints that he was infringing the copyright. The plaintiff was therefore obliged to incur expenses, not in proving the infringement, but establishing whether there was such an infringement in order to take steps to protect its rights. Such expenses do not seem to me to be too remote from the defendant's wrongful conduct to disqualify them from being regarded as damages flowing from that conduct. The expenses of Bell and Chauke itemised above seem to me to have been part of the cost of establishing that the defendant was causing public performances of the works in question and that such performances were regularly taking place. The last such visit in respect of which these expenses are claimed was on 21 March 1975 and it seems to me that up to that stage those expenses were reasonably incurred by the plaintiff in determining whether an infringement of copyright was taking place, the extent of such infringement and whether action could and should be brought to protect the copyright. I am therefore of the view that they constitute damages flowing directly from the defendant's infringement and that the amount of R195 should be awarded to the plaintiff.

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Mr. MacArthur also asked that I award an additional sum under sec. 18 (3) of the Act as "exemplary" or "penal' damages. Such damages could not be awarded under sec. 18 (3) (b), since it has not been "shown" that any benefit has accrued to the defendant, by reason of the infringement, on which such damages could be calculated. It was suggested that an award could be made under sec. 18 (3) (a) having regard to "the flagrancy of the infringement". I have however several difficulties with that contention.

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Firstly, such additional damages may only be awarded if the Court is satisfied "that effective relief would not otherwise be available to the plaintiff". In the present case, I propose to award the plaintiff the actual pecuniary loss it has suffered and an interdict, which, it seems to me, should constitute effective relief to the plaintiff. Secondly, no yardstick has been suggested by which such additional damages can be assessed; and, although it is suggested in Copeling, op. cit. at p. 153, that the amount to be awarded is entirely in the Court's discretion, I cannot simply pluck a figure out of the air without some basis on which to assess it. None of the cases (all of which are English authorities) to which I was referred seem to me to be in pari materia. Thirdly, even though the defendant's conduct is open to criticism (as I shall indicate later when dealing with costs), it does not seem to me to be comparable to the type of conduct dealt with in the English cases, or discussed in Copeling and Copinger and Skone-James (at p. 217), or of a "flagrancy" deserving of a special award of exemplary damages. Mr. MacArthur said that the matter was res nova in South Africa and in my view it is not an appropriate case for the award of damages beyond the normal ambit of compensation for pecuniary loss.

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In the circumstances it seems to me that the plaintiff's damages must be limited to the two amounts mentioned above, namely R220,13 and R195, a total of R415,13.

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Although the granting of an interdict against the defendant was not one of the matters put in dispute in the Rule 37 minute, Mr. Rossouw argued that I should not grant this relief because the evidence for the defendant (which the plaintiff cannot contest) is that he ceased to infringe the plaintiff's copyright in August 1975. If that is the case I do not see how (subject to the question of costs) he can in any way be prejudiced by the granting of the interdict which the plaintiff seeks. This was the view taken in Performing Rights Society v Berman and Another, supra at pp. 357 - 8. In that case, as here, the defendant had given no undertaking not to repeat the infringement and there is no guarantee that he will not repeat such infringement in the future, unless he is prevented from doing so. His past conduct, his contemptuous disregard for the plaintiff's letters, warnings and requests that he pay a licence fee, ("ek het dit as belaglik beskou") his specious reliance on the fact that he held a radio listener's licence; the fact that he only ceased his infringements when served with a summons; and the fact that he has restored the radio to its former place (for reasons of which I am somewhat sceptical) do not inspire confidence that he will not in the future resume his infringement of the plaintiff's copyright. Up to three days before trial he was persisting in his denial of the plaintiff's rights and his denial that he had breached them. It seems to me therefore that the plaintiff has established the requisites for the granting of an interdict and that it should be granted against the defendant.

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Finally, as regards costs, I am of the view that, despite the fact that the damages awarded are only some R415 and that the matter fell within the jurisdiction of a magistrate's court, this is a proper case to award the plaintiff costs on the Supreme Court scale. My reasons are briefly as follows:

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   (a)   The defendant pleaded a complete denial of all the plaintiff's allegations, including the plaintiff's copyright and denied anyinfringement of such rights. All the material facts were in dispute until three days before the trial.

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   (b)   Apart from its letter of 9 January 1973 the defendant did not respond in any way to the letters from the plaintiff. In particular, it made no rebuttal of the basis on which the plaintiff calculated the licence fees due, nor did it give any information as to how long the performance of the works had been taking place. The plaintiff therefore had no way of accurately assessing the damages which might be awarded to it.

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  (c)   The defendant at no time, even after issue of summons, placed on record that it had ceased allowing the public performance of the copyright works nor did it acknowledge the plaintiff's right to a licence fee if copyright works were being publicly performed; nor did it undertake, if it were breaching such copyright, to cease to do so.

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   (d)   Up to three days before trial, therefore, the plaintiff had to come to Court prepared to prove every material allegation in its particulars of claim. These were not simple issues at that stage and it does not seem to me to have been unreasonable to have decided to proceed in the Supreme Court to establish them. The position would have been quite different if the issues had been limited to those on which the trial eventually proceeded.

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For the above reasons it seems to me to be proper that the plaintiff should recover its costs on the Supreme Court scale. I therefore order that:

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  1. The defendant is interdicted and restrained from performing in public  or causing or authorising or permitting the performance in public of, without the plaintiff's authorisation or consent, any musical work, the performing rights of which are owned by the plaintiff.
  2. The defendant pay the plaintiff damages in the sum of R415,13.
  3. The defendant pay the costs of this action.
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Plaintiff's Attorneys: Espin & Espin. Defendant's Attorneys: W. J. Olckers & Son.

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Annotated Text Information

March 16, 2016

South African Music Rights Organisation Ltd v Trust Butchers (Pty) Ltd 1978 (1) SA 1052

South African Music Rights Organisation Ltd v Trust Butchers (Pty) Ltd 1978 (1) SA 1052

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Tobias Schonwetter

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