BURHAN J
- The aforementioned plaintiffs initially filed a plaint against the defendant seeking the following reliefs from the court:
- “….that a commissioner be appointed to examine the accounts of the Defendant and to assess the benefit made by the Defendant in transmitting the 2019 edition of the Final Tournament of the Total Africa Cup of Nations, organised in Egypt between 21 June and 19 July 2019;
- …. order the Defendant to pay the Plaintiff’s the sum of SCR 1 million for each breach of copyright; and
- ….grant the Plaintiffs such other civil remedies under section 30 of the Copyright Act as may be just and necessary including such damages as may be appropriate after the commissioner appointed pursuant to prayer a. has reported.”
- It was alleged by the plaintiffs in their plaint that the defendant, Intelvision Limited (“Intelvision"), a company incorporated in the Seychelles and engaged in the business of providing downloaded pay television channels to customers in Seychelles via cable network, in breach of the exclusive pay television rights vested in SuperSport International and without prior permission from the plaintiffs advertised and disseminated the matches of the tournament to its customers in Seychelles from the start of tournament on 21 June 2019 until it ended in July 2019.
- The plaintiffs averred that the said action of the defendant infringed the provisions of the Copyright Act 2014 (“CA”) in the Seychelles, (Act 5 of 2014) and therefore the defendant was liable for damages for breach of copyright and, in the alternative, for exploiting and transmitting of the tournament by the defendant for profit without the permission of the plaintiffs, which constitutes a fault rendering the defendant liable for damages.
- On the 7 April 2021 this Court gave judgment and held it was satisfied that the plaintiffs had established on a balance of probabilities that the agreement P10 can be accepted as proof of an exclusive licence being given to the plaintiffs to broadcast the CAF tournament in English through the DSTV platform in the Seychelles. Therefore, the defendant Intelvision had no right to broadcast such tournament.
- It further held that the defendant was prohibited from unauthorised transmission under section 26(3) of the CA, which protects the rights of the broadcasting organisations; and such action is an infringement of rights protected under the CA, for the purposes of sections 29 (provisional measures) and 30 (civil remedies). The limitations on protection under section 26 as set out in section 27 of the CA did not apply to the defendant. Further this Court held it was satisfied that the provisions of the Copyright Act applies to works that are eligible for protection in Seychelles by virtue of any international convention, treaty or agreement to which Seychelles is a party, including TRIPS by virtue of section 35(2) of the Act.
- Having come to the aforementioned findings this Court granted the prayer of the plaintiffs as set down below:
- That a Commissioner be appointed to examine the accounts of the defendant and to assess the benefit made by the defendant in transmitting the 2019 edition of the Final Tournament of the Total Africa Cup of Nations, organised in Egypt between 21 June and 19 July 2019;
- That the defendant pay the plaintiffs the sum decided on by court after receipt of the report by the Commissioner for breach of copyrights; and
- Such further damages under section 30 of the CA as may be ordered by court after the Commissioner appointed pursuant to prayer (a) has reported and costs.
- Thereafter, following the judgment, the Commissioner’s report dated 8th of March 2022 was filed on 23rd June 2022. Due to errors in mathematical calculations in the report, an addendum dated 3rd July 2023 was filed on 27th June 2024. The addendum relates to sections 9 and 10 of the original report and additionally includes section 11. Section 9 outlines that the Commissioner was tasked with identifying the monetary benefits made by Intelvision, the defendant, in the airing of the AFCON 2019. The section defines monetary benefit and provides the methods used to calculate it. Under section 10, the addendum states that the Commissioner was also tasked with compiling comparative monetary benefits and/or the cost of airing the AFCON 2019 from different sources that had likewise aired the AFCON 2019. The addendum states that the Commissioner sought to obtain this information from various sources, including Multi-Choice Africa. However, despite these efforts, the Commissioner has not been able to obtain any comparative information in time for the report. Therefore, the comparison exercise has not been conducted. Section 11 of the addendum concludes that it was ascertained that Intelvision made SCR6,629.25 as monetary benefit from airing of the AFCON 2019.
- A further addendum dated 25th October 2023 was filed on 27th October 2024. The addendum states that the Commissioner requested MultiChoice to provide the financial value that MultiChoice would have charged Intelvision to acquire the genuine rights to air the AFCON 2019. From there, the Commissioner would assess how this potential payment would have impacted Invelvision’s year-end profit base. It is stated that SuperSport International Pty Ltd valued the rights for Seychelles at USD60,000, being a proportion of the total cost for which the rights would have been valued for sub-Saharan Africa. The addendum refers to the letter from MultiChoice (Annex 1 of the addendum) dated 9th October 2023, which this Court has also examined. The addendum notes that when there is unauthorised transmission by a third-party broadcaster, in this case being Intelvision, MultiChoice could stand to incur potential loss of revenue of advertising or broadcast sponsorship. However, in the absence of relevant information, no assessment could be made to determine the financial loss made by MultiChoice or the financial gain made by Intelvision with regards to the advertising or broadcast sponsorship. In conclusion, the addendum to the report states that if Intelvision were to purchase the CAF2019 airing rights from MultiChoice in the rightful channel, the Intelvision would have paid MultiChoice USD60,000. Hence, Intelvision’s additional expenses and or losses incurred in FY2019, would have been at additional USD60,000.
- Further, the Commissioner, during proceedings of 27th June 2024 at 09:00 AM, while being cross-examined and later re-examined, explained that USD60,000 may also be considered as monetary benefit Invelvision gained by not paying the said amount for licence (see pages 42-43; 46-47).
- Under section 4 of the Copyrights Act, the protected works are:
“(1) Literary and artistic works (hereinafter referred to as "works") are original intellectual creations in the literary and artistic domain, including in particular—
- books, pamphlets, articles and other writings;
- speeches, lectures, addresses, sermons and other oral works;
- dramatic, dramatico-musical works, pantomimes, choreographic works and other works created for stage productions;
- musical works, with or without accompanying words;
- audio-visual works;
- works of architecture;
- works of drawing, painting, sculpture, engraving, lithography, tapestry and other works of fine art;
- photographic works;
- works of applied art;
- computer programmes; and
- illustrations, maps, plans, sketches and three dimensional works relative to geography, topography, architecture or science.
(2)Works shall be protected, when they are fixed or otherwise reduced to material form, irrespective of their mode or form of expression or their content, quality or purpose.
- Broadcasting rights are protected under section 26 of the Act. To reiterate the findings of this Court’s Judgement of 7th April 2021:
[40] As noted earlier, broadcasting of work is one of the economic rights under section 7 of the CA that can be assigned under section 22. Part III of the CA deals with the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. Rights of broadcasting organisations are provided in section 26:
“Rights of broadcasting organisations
26. (1) A broadcasting organisation shall have the exclusive right to carry out or to authorise any of the following acts -
(a) the rebroadcasting of its broadcast;
(b) the communication to the public of its broadcast;
(c) the fixation of its broadcast; or
(d) the reproduction of a fixation of its broadcast.
(2) The rights under this section shall be protected from the moment when the broadcasting takes place until the end of the fiftieth calendar year following the year in which the broadcast takes place.
(3) Any programme-carrying signals transmitted by satellite which are not intended for direct reception by the public, but for simultaneous or subsequent broadcasting or cable distribution by an authorised receiving organisation, may not be broadcast or communicated to the public by any person without authorisation of the person or legal entity that decided what programme the emitted signal would carry.” (emphasis added)
. . .
[42] Section 34 provides that an act under section 26(3) above is a prohibited act deemed to be an infringement of rights:
“34. The acts prohibited under section 26(3) and sections 32 and 33 shall be deemed to be an infringement of rights protected under this Act, for the purposes of sections 29, 30 and 31.”
[43] Therefore, the defendant had, in broadcasting the matches without authorisation to broadcast, infringed the rights resulting in the necessity for remedial action under Part V of the Act.
- Having considered the evidence led before the Court, including the Commissioner’s report and its addendums together with Commissioner’s testimony, this Court determines that the plaintiffs have established that they are entitled to damages for infringement of broadcasting rights under section 30 of the Copyrights Act as prayed under prayer (c). Section 30 of the Copyrights Act provides:
30. Civil remedies
(1) Where an act has been found to be an infringement of any rights protected under this Act, the court may, on an application made by the rights owner, order the infringer to desist from such act.
(2) The owner of any rights protected under this Act shall be entitled to payment, by the infringer who has knowingly or with reasonable grounds to know infringed his rights,—
(a) of damages for the prejudice suffered as a consequence of the act of infringement; and
(b) of expenses caused by the infringement, which may include legal costs.
(3) The amount of damages referred to under subsection (2)(a) shall be determined taking into account the economic and moral prejudice suffered by the owner of the rights.
(4) The court may, while determining damages under subsection (2)(a), order the recovery of profits from the infringer, even when the infringer did not know or had no reasonable grounds to know that he was engaged in infringing activity.
(5) Where goods have been found to be infringing copies, the court may, taking into account the need for proportionality between the seriousness of the infringement and the remedy the legitimate interests of third party, order the destruction or other reasonable disposition of infringing copies and their packaging, without payment of compensation, in such a manner as the court considers appropriate, as to avoid any harm to the rights owner.
(6) The court may, taking into account the conditions set out in subsection (2), order, without payment of compensation of any sort, the destruction or other reasonable disposition of materials and implements the predominant use of which has been the making of infringing copies, in such manner as the court considers appropriate, as to minimise the risks of continuing or subsequent infringements.
(7) The court may, if it considers appropriate, order the infringer to inform the rights owner of the identity of third persons involved in the production and distribution of the infringing goods or rendering of services, and of their channels of distribution, unless this would be out of proportion to the seriousness of the infringement.
- This Court determines that the plaintiffs are entitled to damages for lost licensing fee, namely USD60,000, for the prejudice suffered as a consequence of the act of infringement under section 30(2)(a). The Court is further of the view that the plaintiffs are entitled to profits from the infringement under section 30(4), the amount of which was identified in the Commissioner’s report. Further damages of SCR1 million for breach of copyright as claimed separately under prayer (b) in the view of this Court has not been further substantiated by the plaintiffs and the Commissioner’s report.
- Therefore, this Court makes the following orders that the defendant pays the 1st and 2nd plaintiffs in total a sum of:
- USD60,000 (sixty thousand USD) or the SCR equivalent at the time of making payment as ordered by this Court together with interest at the legal rate to be calculated from the date of filing plaint;
- SCR6,629.25 (six thousand six hundred and twenty-nine and cents twenty-five);
- Costs.
Signed, dated and delivered at Ile du Port on 17 October 2024.
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M Burhan J