Tellytrack v Marshalls World of Sport (Pty) Ltd & others

Tellytrack is a partnership between Phumelela Gaming and Leisure Limited, Gold Circle (Pty) Ltd, and Kenilworth Racing (Pty) Ltd, the only licensed racetrack operators in South Africa. Tellytrack operates a television control room that receives raw television feeds from domestic and international horse races. It enhances these raw feeds by adding betting scrolls, race previews, totalisator information, and other graphics. The enhanced product (dirty feed) is sent to Multichoice for broadcast on DSTV channel 239. From 2001 to September 2013, Tellytrack had written agreements with bookmakers' associations to provide the channel for a monthly subscription fee on a break-even basis. After the agreements expired in September 2013, Tellytrack sought to charge a percentage of turnover, which the bookmakers refused to pay. The bookmakers stopped paying any subscription but continued to make the DSTV channel 239 available for viewing at their business locations for punters. Tellytrack claimed this constituted copyright infringement under sections 6, 8, 9, 11B, and 23 of the Copyright Act 98 of 1978. The High Court dismissed Tellytrack's action, finding that what was displayed was a broadcast, not a cinematograph film, because the recording occurred simultaneously with the broadcast. The court also found that Multichoice, not Tellytrack, owned the copyright in the broadcast.

• Whether the material shown on DSTV channel 239 constitutes a 'cinematograph film' as defined in section 1 of the Copyright Act 98 of 1978
• Whether the requirement of 'fixation or storage' for copyright protection in cinematograph films was satisfied when recording occurred simultaneously with broadcast
• Whether enabling the public to view the horse racing events at bookmakers' business locations constituted infringement of Tellytrack's copyright under section 8(1)(b) of the Copyright Act
• Who owns the copyright in the broadcast - Tellytrack or Multichoice
• Whether Tellytrack was entitled to additional damages under section 24(3) of the Copyright Act

The appeal was upheld with costs including costs of two counsel. The High Court's order dismissing the action was set aside and substituted with: 1. An interdict restraining the respondents from infringing Tellytrack's copyright in the cinematograph films and raw race feeds by causing them to be seen in public, in terms of section 8(1)(b) of the Copyright Act. 2. An order for an enquiry to determine damages or a reasonable royalty to be paid by the respondents to Tellytrack. 3. Costs to be paid by the respondents jointly and severally, including costs of two counsel.

The binding legal principles established are: 1. A cinematograph film as defined in section 1 of the Copyright Act 98 of 1978 includes material that has been fixed or stored (recorded) even when the recording occurs simultaneously or near-simultaneously with a live event, provided the recording precedes the broadcast, however briefly. 2. The requirement for fixation or storage of data, signals or sequence of images for copyright protection in cinematograph films does not require that the complete work be recorded before any part of it is transmitted. Recording at the time of or concurrent with broadcast satisfies the fixation requirement. 3. Where material broadcast on television has been recorded (however briefly) before transmission, it constitutes a cinematograph film capable of copyright protection, not merely an unprotected live broadcast. 4. Under section 8(1)(b) of the Copyright Act, causing a cinematograph film to be seen in public without the copyright owner's authorization constitutes infringement of copyright, regardless of whether the viewing is from a broadcast or other source. 5. The fact that recordings are made at multiple stages of production and transmission of cinematograph films does not negate copyright protection - each recording evidences fixation in material form as required by section 2(2) of the Act. 6. Additional damages under section 24(3) of the Copyright Act are not available where effective relief is otherwise available to the plaintiff through ordinary damages or reasonable royalty.

The Court made several non-binding observations: 1. The Court noted approvingly the statement from Nintendo that copyright definitions employ 'very wide terms' to 'cover future technical innovations by using general words' and that 'legislative inertia ought not to impede human ingenuity and the reasonable protection thereof'. This indicates the Court's willingness to interpret copyright protection broadly to accommodate technological developments. 2. The Court observed that Tellytrack was 'at times confused about the core of its case' and had expended 'too much unfocused effort' on certain aspects (reproduction under section 8(1)(a)) rather than focusing on the core issue of causing films to be seen in public under section 8(1)(b). This suggests litigants should clearly identify and focus on the most relevant grounds for their claims. 3. The Court noted that 'one cannot broadcast nothing', suggesting a practical approach to copyright protection - if something of substance is being broadcast, there must be underlying material capable of protection. 4. The Court observed that the horse racing industry involves significant scale and commercial interest, with nine domestic race tracks, 400 totalisator betting outlets, channel 239 running continuously from 10:00 to 22:30 daily with a live race every 10 minutes, and most content (over 75%) comprising international races. This contextualizes the commercial importance of the dispute. 5. The Court noted that certain license conditions imposed obligations on Phumelela regarding Gauteng and Eastern Cape which explained a formal tender that remained extant, but these did not militate against the interdict sought except in respect of specific visual broadcasts covered by the tender.

This case is significant in South African copyright law for several reasons: 1. It clarifies the definition and scope of 'cinematograph film' under the Copyright Act, particularly in the context of live broadcasts that are simultaneously recorded. 2. It confirms that the fixation/storage requirement for copyright protection in cinematograph films can be satisfied even when recording occurs simultaneously or near-simultaneously with a live event, provided there is some temporal delay (in this case, at least seven seconds). 3. It demonstrates the broad interpretation courts will give to copyright definitions to ensure protection keeps pace with technological developments, as indicated by the Court's reference to Nintendo's principle that 'legislative inertia ought not to impede human ingenuity and the reasonable protection thereof'. 4. It provides important guidance on section 8(1)(b) of the Copyright Act regarding the exclusive right to cause cinematograph films to be seen in public. 5. It addresses the relationship between copyright in cinematograph films and broadcasts, clarifying that the creator of the underlying cinematograph film may hold copyright separate from the broadcaster. 6. It has practical implications for the horse racing and betting industries, clarifying the rights of content producers versus distributors and commercial viewers.