Foschini Retail Group (Pty) (Ltd) and 9(Nine) Others v South African Music Performance Rights Association (0003/2009) [2013] ZAGPPHC 304; 2013 BIP 368 (CT) (25 October 2013)

Foschini Retail Group (Pty) (Ltd) and 9(Nine) Others v South African Music Performance Rights Association (0003/2009) [2013] ZAGPPHC 304; 2013 BIP 368 (CT) (25 October 2013)

The Tribunal found that SAMPRA's tariff was invalid as it was set unilaterally without negotiation with users, contrary to the requirements of the Copyright Act and Collecting Society Regulations. The Tribunal held that SAMPRA was obligated to engage with retailers before determining the royalty amount. The economic value of music in retail stores could not be quantified, and market-based approaches were impractical. Benchmarking against international tariffs, particularly Australia's PPCA, was accepted as a reasonable method. The Tribunal set aside SAMPRA's tariff and replaced it with a new tariff based on public welfare optimization, operative from 2008 to December 2014, with future...

Citation
[2013] ZAGPPHC 304
Parties
Applicant: Foschini Retail Group (Pty) (Ltd) and 9 Others; Respondent: South African Music Performance Rights Association
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 October 2013
Case Number
0003/2009
Procedural Posture
Review Application / Referral to Copyright Tribunal Under S 9 A(1)(c) of the Copyright Act
Outcome
SAMPRA's tariff is set aside and replaced with a new tariff as determined by the Tribunal; costs awarded to the retailers.
Judges
A.M.L. Phatudi
Legal Topics
Copyright Royalties, Collecting Societies, Tariff Setting, Needletime Rights, Public Performance, Regulatory Compliance
Intellectual Property Commercial and Corporate Copyright Royalties Collecting Societies Tariff Setting Needletime Rights Public Performance Regulatory Compliance

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Parties

Foschini Retail Group (Pty) (Ltd) and 9 Others

Applicant

South African Music Performance Rights Association

Respondent

Procedural Posture

Review Application / Referral to Copyright Tribunal Under S 9 A(1)(c) of the Copyright Act

Legal Issues

  1. 1 Whether SAMPRA's unilaterally set tariff for background music in retail stores is reasonable in the circumstances.
  2. 2 Whether SAMPRA complied with statutory and regulatory requirements in setting the tariff.
  3. 3 What constitutes a reasonable royalty tariff under South African law for public performance of sound recordings.

Ratio Decidendi

The Tribunal found that SAMPRA's tariff was invalid as it was set unilaterally without negotiation with users, contrary to the requirements of the Copyright Act and Collecting Society Regulations. The Tribunal held that SAMPRA was obligated to engage with retailers before determining the royalty amount. The economic value of music in retail stores could not be quantified, and market-based approaches were impractical. Benchmarking against international tariffs, particularly Australia's PPCA, was accepted as a reasonable method. The Tribunal set aside SAMPRA's tariff and replaced it with a new tariff based on public welfare optimization, operative from 2008 to December 2014, with future...

Court Disposition

SAMPRA's tariff is set aside and replaced with a new tariff as determined by the Tribunal; costs awarded to the retailers.

Orders

  • The tariff set by SAMPRA as set out in paragraph [15] is set aside and replaced with the tariff appearing at paragraph [76].
  • SAMPRA is ordered to pay the retailers' costs, including the costs of two counsel.