Allcopy Publishers (Pty) Ltd and Others v Phillips (Leave to Appeal) (00001/2024) [2025] ZAGPPHC 514 (26 May 2025)

REPUBLIC
OF SOUTH AFRICA

IN
THE HIGH COURT OF SOUTH AFRICA

GAUTENG
DIVISION, PRETORIA (COPYRIGHT TRIBUNAL)

Case
Number: 00001/2024

(1) 
REPORTABLE: NO

(2) 
OF INTEREST TO OTHER JUDGES: NO

(3) 
REVISED: NO

In
the matter between:

ALLCOPY
PUBLISHERS (PTY) LTD                                   

First Applicant

JURGENS
JOHANNES BASSON                                        

Second Applicant

JACO
ODENDAAL                                                               

Third Applicant

and

MARK
PHILLIPS                                                                  

Respondent

Delivered:
This judgment was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation to

the parties/their legal representatives by e-mail and by uploading it
to the electronic file of this matter on Caselines. The date
for
hand-down is deemed to be 26 May 2025.

Summary:
Application for leave to appeal. Where the relief sought will have no
practical effect or results, leave to appeal ought
not to be granted
since such an appeal will be dismissed by a Court of appeal. The
applicant bears no prospects of success on the
alleged application of
the doctrine of self-help. There was no dispute that the applicant
refused to grant the publisher and other
authors a copyright licence.
This Tribunal has found that the refusal was unreasonable and
exercised its wide powers in terms of
section 33(5) of the Copyright
Act, 1978. There are no prospects that a Court of appeal will
interfere with the exercise of wide powers to grant the compulsory
licence
with retrospective effect. An appeal does not lie against the
reasons but the order. The applicability or non-applicability of
section 9A of the Act relates to reasons as opposed to the impugned
order.  Held: (1) The application for leave to appeal is
dismissed
with costs.

JUDGMENT-LEAVE TO
APPEAL

MOSHOANA, J

Introduction

[1] 
This is an
opposed application for leave to appeal. The application is launched
in terms of section 17(1) of the Superior Court
Act (SCA)[1].
The legislated test to grant leave to appeal is by now trite and
requires no repetition at every turn. This Tribunal has issued
an
order granting the respondent in the present application, a
compulsory licence, which is to expire at the end of December 2025.

The applicant is disenchanted by the order an now impugns the order
on principally two grounds, namely; (a) this Tribunal ought
to have
found that the applicant was a victim of self-help, the respondent
having taken the law into its hands by using the copyright
without
being licenced; (b) the Tribunal was not empowered to order the
granting of the licence with retrospective effect. Allied
to these
two grounds emerged the issue whether the relief sought will have
practical effect, owing to the common cause fact that
by the time the
appeal is heard, the impugned order would have expired.

[2] 
The applicant contends that should its relief be upheld by the appeal
Court (that the application for the grant of compulsory
copyright
licence be refused), such an order shall pave way for a potential
damages claim that shall arise from the usage of the
copyright
without a licence. On the other hand, the respondent contends that no
practical effect shall be achieved since the Tribunal
has effectively
ordered a reasonable order for the compulsory licence with royalties
being paid over the period of usage.

[3] 
Regard being had to the above, this judgment shall confine itself to
the issues highlighted above. For avoidance of doubt,
those are, (a)
applicability of the self-help doctrine); (b) the retrospectivity of
the compulsory licence; (c) the practical effect
of the relief
sought. Given the view this Tribunal takes at the end, it shall be
more convenient to address the practical effect
issue first.

The
practical effect of the appeal.

[4] 
As indicated above, the lifespan of the order made by this Tribunal
is limited to end of December 2025. Both parties are
in agreement
that, even if leave to appeal is granted by this Tribunal, that is,
if this Tribunal is of the opinion that the legislated
threshold has
been met, by the time the appeal is heard, the relief sought will
have no practical effect. What will impel a Court
of appeal to
dismiss the appeal will not be that it lacks merits, but that the
relief sought will have practical effect. Undoubtedly,
the relief
that the applicant shall seek on appeal is one of refusal of a
compulsory licence. Indisputably, by the time such a
relief sought is
granted, the time-period of the compulsory licence would have
expired.

[5] 
Section 16(2)(a)(i) of the SCA provides that when at the hearing of
an appeal the issues are of such a nature that the
decision sought
will have no practical effect or result, the appeal may be dismissed
on this ground alone. This Tribunal does accept
that the discretion
to dismiss an appeal lies with the Court hearing the appeal. However,
at the stage of application for leave
to appeal, this Tribunal is
entitled to form an opinion as to whether the issues are of such a
nature that the decision sought
will have no practical effect or
results. Differently put, it is against the doctrine of effectiveness
for a Tribunal to grant
leave in order for the Court of appeal simply
to exercise its discretion to dismiss.

[6] 
The section concerns itself with the decision (relief) sought as
opposed to a decision a party may sought. The practicality
or results
relate to the decision sought. This Tribunal takes a view that the
decision sought (refusal of the grant of compulsory
licence) will
provide the applicant with any practical effect or result, in the
circumstances where the impugned order would have
vacated. The
applicant contends that the effect of the decision sought is that the
claim for damages would become available and
such is a practical
result since the applicant has an option to claim damages or accept
reasonable royalties. For reasons to be
outlined below, this Tribunal
disagrees with this contention.

[7] 
Damages are awarded to a claimant if there is a legal basis to do so,
for instance, a delict having been committed or
a contract having
been breached. In this particular instance, section 23(1) of the
Copyright Act provides that a copyright shall be infringed by any
person, not being an owner, who, without the licence of such
owner, does or causes any other person to do, in the Republic,
any act which the owner has exclusive right to do or to authorise.

[8] 
Accordingly, where any person, who is without the licence does any
act which the owner has exclusive right to do or authorise,
that
person is said to have infringed a copyright. That which the
copyright vests exclusive right to do and authorise, is specified
in
section 6(a)-(g) of the Copyright Act. In order to succeed in an
infringement claim, a copyright owner need to allege and prove
commission of any of the acts specified in
the section. It is not
only a without licence that is determinative of an infringement. A
party is still required to allege and
prove the commission of the
acts specified. Section 23(2)(a)-(d) of the Copyright Act creates a
legal basis for infringement. As at the time of hearing this
application, infringement proceedings were stayed, pending the
outcome of the proceedings before this Tribunal. Now that the
proceedings before this Tribunal has been finalised, the applicant

may, if so advised, proceed with his infringement proceedings.

[9] 
The infringement proceedings did not serve before this Tribunal and
those proceedings could not serve. However section 24(1) of the
Copyright Act, avails to the copyright owner all reliefs by way of
damages, interdict, delivery of infringing copies or plates used.
The damages claim is already availed to the applicant. As such, the
question
whether the applicant is entitled to damages, may still be
determined by a Court in the pending infringement proceedings.
Certainly,
damages claim have not as yet been determined by a Court.
This Tribunal had no powers to determine whether the applicant is
entitled
to damages and or in lieu thereof reasonable royalty
be awarded.

[10] 
Apropos the appeal sought, the Court of appeal shall not be
empowered to concern itself with the practical effect or results of
an award
of damages, in the circumstances where the questions whether
damages or reasonable royalties in lieu may or may not be
awarded by the Court seized with the pending infringement action. As
pointed out earlier, it is the decision
sought by an appellant that
must have practical effect or results. Dismissal of the request for a
compulsory licence within the
contemplation of section 33(3) of the
Copyright Act, will not per se pave way for an award of
damages. It is indeed so that usage of a copyright without a licence
may give rise to an action contemplated
in section 24. However, it
cannot guarantee an award for damages. Accordingly, to my mind, no
practical effect or results may arise should the
appeal be decided by
a Court of appeal.

[11] 
The conclusion to reach is that it is inappropriate to trouble a
Court of appeal to decide issues which will have no
practical effect
or results to the applicant. For this reason alone, the application
for leave to appeal must fail.

The
doctrine of self-help

[12] 
With
considerable regret, it is apparent that the applicant and his legal
team has a different understanding of the doctrine of
self-help.
Howbeit, a difference of understanding of a settled principle of law
is not a compelling reason for an appeal to be
heard. In his
understanding, what clearly appears to be an infringement in terms of
section 23(1) of the Copyright Act, constitutes self-help. In Public
Servants obo Ubogu v Head of Department of Health, Gauteng and others
(Ubogo)[2],
the Constitutional Court explained the doctrine thus:

“[66]   …
Self-help, as this Court held in Chief
Lesapo,
“is inimical to a society in which the rule of law prevails, as
envisaged in section 1(c) of our Constitution. Although there may be
circumstances when good reasons exists – justifying
self-help[3]…

[67]    By
aiding self-help, the impugned provisions allows the state to
undermine judicial process – which
requires disputes be
resolved by law as envisaged in section 34 of the Constitution…”

[13] 
In Ubogo, in considering section 38(2)(b)(i) of the Public
Services Act, 1994 (PSA), the Labour Court had found that the
section, by allowing
a state to deduct from a salary of a public
servant, who was wrongly paid, without resorting to a judicial
process amounted to
self-help. That finding received an imprimatur of
the Constitutional Court. In comparison to the present instance, the
respondents
did not take the law into their own hands. On the version
of the applicant, they infringed the copyright. In other words, if
their
action is in contra flagrante delicto such would perhaps
have allowed the applicant to dispossess them immediately and such
would have been a justifiable self-help. In
the circumstances, no
Court would come to a different conclusion than the one reached by
the Tribunal. Even if the hearing of the
appeal would yield practical
effect or results, the applicant lacks prospects of success on appeal
on this ground. For that reason,
application for leave to appeal
falls to be dismissed.

Retrospectivity
of the granting of compulsory licence

[14] 
Section 33(5) of the Act specifically provides that the applicant is
entitled to a licence on such terms and conditions.
Those terms and
conditions are to be determined through an order to be made by the
Tribunal. As prescribed by subsection (5)(b)
the determination ought
to be reasonable in the circumstances. Generally, terms and
conditions refers to rules, guidelines and
obligations outlined in a
document, for an example a contract. Section 33(5) contains wide
powers that a Tribunal, guided by reasonableness,
may exercise when
ordering the granting of a licence. With such wide powers,
retrospectivity is part of the terms and conditions
that are
reasonable, in the circumstances where the refusal to grant a licence
was made by the copyright owner unreasonably.

[15] 
The Supreme Court of Appeal in SAMRO judgment has already
demonstrated that a retrospective order may be made by a Tribunal.
Accordingly, another Court would not reach
a different conclusion
than the one reached by this Tribunal. Such prospects are not only
slim but they are non-existent.

Conclusions

[16] 
Much was made by the applicant that the Tribunal relied on section 9A
with regard to royalties, when the section only
applies to sound
recordings as opposed to literary work. It is by now trite law that
an appeal lies against the order and not reasons.
The Tribunal
referenced section 9A when it rejected a submission that payment of
royalties by the respondent amounted to self-help
or an act of
unlawfulness. There is no reasonable prospect that another Court
would interfere with an order made by this Tribunal
simply because,
when reasoning its order in the manner outlined above referenced a
wrong section of the Act. Context is everything.
The section was
referenced in the context of rejecting an invalid legal submission on
self-help.

[17] 
On account of all the above reasons, the following order is made:

Order

1.  The
application for leave to appeal is dismissed.

2.  The
applicant for leave to appeal is directed to pay the costs of this
application on a party and party scale, which costs include
the costs
of employment of two counsel to be taxed or settled on scale C.

JUDGE
GN MOSHOANA

COMMISSIONER
OF PATENTS

 HIGH
COURT GAUTENG DIVISION, PRETORIA

APPEARANCES:

For
the Respondents:                      

Mr A Sholto-Douglas SC and Ms L Kilmartin SC

Instructed
by:                                   

Von Seidels, Cape Town

For
the Applicant:                             

Mr R Michau SC and Mr C W Pretorius

Instructed
by:                                   

Hirschowitz Flionis Attorneys, Johannesburg

Date
of the hearing:                         

23 May 2025

Date
of judgment:                            

26 May 2025