South African Music Performance Rights Association v Foschini Retail Group (Pty) Ltd and Others

The South African Music Performance Rights Association (SAMPRA), an accredited collecting society representing copyright owners in sound recordings, set tariffs for royalties payable by Foschini Retail Group and nine other retailers for playing background music in their stores. The parties were unable to agree on the amount of the royalty as contemplated in s 9A of the Copyright Act 98 of 1978. The retailers referred the dispute to the Copyright Tribunal, which determined a tariff lower than that set by SAMPRA but higher than that proposed by the retailers. SAMPRA appealed to the Supreme Court of Appeal, challenging the Tribunal’s jurisdiction, the absence of an onus on the retailers to prove unreasonableness, and the reasonableness of the tariff determined.

The appeal was upheld in part. The order of the Copyright Tribunal relating to the tariff was set aside and substituted with a detailed tariff scale declared to be the reasonable royalty payable with effect from 1 January 2008, subject to annual CPI-based revision. The respondents were ordered to pay 50% of SAMPRA’s costs of appeal, including the costs of two counsel.

This judgment is a leading authority on the jurisdiction and powers of the Copyright Tribunal under s 9A of the Copyright Act. It clarifies that the Tribunal’s jurisdiction arises from the absence of agreement on royalties and that applicants do not bear a formal onus of proof to establish unreasonableness. The case provides important guidance on the determination of reasonable royalties and confirms that comparative foreign tariffs may be taken into account.