In the Supreme Court |14 June 2021

Intelvision to pay MultiChoice Africa in content piracy case

The Supreme Court of Seychelles’ decision that Intelvision Limited pay MultiChoice Africa Holdings B.V and SuperSport International (Pty) Ltd the sum decided on by court after receipt of a report by the commissioner for breach of copyrights has not only made headlines on the African continent, but also sent out a strong message about the protection of intellectual property rights and the fight against content piracy.

On April 7, 2021, Supreme Court Judge Mohan Burhan delivered the ruling in the case and he also pointed out that further damages under section 30 of the Copyright Act 2014 (CA) as may be ordered by court after the commissioner appointed pursuant to prayer (a) has reported and costs.

Some newspapers have been writing that the recent finding of the Supreme Court of Seychelles in the anti-piracy case offers hope for the continent’s creative industries, but the fight against piracy is far from over…

The court found that Intelvision was breaking the law when it broadcast matches from the 2019 African Cup of Nations (Afcon) football tournament, for which it did not have broadcast rights. This is the first successful application of the Seychelles’ Copyright Act.

This decision sets a strong national and regional precedent in upholding content-sharing agreements to ensure that the rights of content providers are protected at every level of the supply chain. The goal is to ensure that creators are remunerated fairly and the content ecosystem – on which much of modern media is built – remains sustainable.

The court ordered that a commissioner be appointed to investigate Intelvision’s accounts to assess the benefit derived by Intelvision from the illegal broadcast of the Afcon tournament. Once the investigation is complete, the court will determine the amount to be paid by Intelvision to MultiChoice Africa and SuperSport as damages suffered by these parties.

Content piracy takes many forms, often simply amounting to intentional content theft. The respondent, Intelvision, was found to be in breach of copyright for its blatant disregard of the rights held by the content producers and rights owners.

Critics have it that while the Seychelles ruling is to be applauded, the fight against piracy is global and Africa is meeting the challenge head on. They say that civil-society organisations and government agencies across the continent are actively working to protect content-creator and owner rights by developing policy, passing laws and enforcing them.

Although this ruling is being seen as good in the fight against piracy, at the same time it does not augur well for the Seychelles-based company ‒ Intelvision Limited ‒ and the country itself as it tarnishes our image and reputation.

Both The Herald of Zimbabwe and sunnewsonline.com write that as the MultiChoice and SuperSport victory in the Seychelles demonstrates, there is also a willingness among content stakeholders to assert their own rights.

“Increasingly, Africa is building a united front against piracy and fighting for copyright-protection enforcement,” The Herald continued.

Content piracy involves unauthorised use of content, whether broadcast, shared, streamed or accessed in any way. Illegally streaming content on digital platforms without paying for it or having the rights to do so has exploded globally, and on the African continent, particularly during the pandemic. Other forms of piracy are hardware-related crimes – such as illegal connections and the sale of counterfeit decoders.

The Herald added that piracy robs content creators, artists and entire creative communities of their royalties.

“In the creative-entertainment space, this war against piracy is about protecting Africa’s creative industry. Only when artists, screenwriters, directors, actors and sporting codes, to name a few, are assured of being adequately compensated for the work they create, will they dedicate themselves to such careers as a viable livelihood – thereby ensuring a legacy of creativity for future generations,” writes The Herald.

It adds that “when content is stolen, creators do not get paid. New content stops becoming available and audiences suffer. Confidence evaporates, investment stagnates and entire industries die. It is not hyperbole to say that piracy can lead to the death of African entertainment.”

The Supreme Court in Seychelles heard MultiChoice Africa’s case against Intelvision on merit. MultiChoice Africa reproached Intelvision Limited the fact that it continued to downlink and offer its content to its subscribers even after the termination of the agreement between the two companies in July 2007. Intelvision defended this decision by saying that MultiChoice Africa’s content wasn’t copyright protected in Seychelles.

MultiChoice Africa believed otherwise and was requesting US $24 million in damages from Intelvision.

The plaintiffs (MultiChoice Africa and SuperSport) averred that the said action of the defendant (Intelvision) infringed the provisions of the Copyright Act 2014 (CA) in Seychelles, (Act 5 of 2014) and therefore the defendant is 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.

It was also averred in the plaint that as the plaintiffs have no access to the accounts of the defendant the plaintiffs are unable to assess their quantum of damages to be claimed due to the aforementioned causes of action.

It is to be remembered that although the plaintiffs had filed an application before the Supreme Court seeking an injunction restraining the respondent from televising the tournament, by the time the application was heard the tournament had been concluded and therefore no further injunctive relief was sort.

Compiled by Gerard Govinden