As reported by the media, DStv had YouTube take down the launch video of a new Afrikaans streaming service based on a suspicious copyright claim.
AfriForumTV, a new Afrikaans-focused video streaming service was launched by the civil rights organisation AfriForum on Monday.
The live event for AfriForumTV’s launch went smoothly. However, by Tuesday morning, the recording of the launch’s livestream had been removed, accompanied by the message:
“This video contains content from DStv, who has blocked it on copyright grounds.”
Sources say that the motivation for the copyright claim was related to a 3-minute trailer for Tainted Heroes, the AfriForum-produced documentary which details the ANC’s rise to power during the liberation struggle, focusing on violent strategies used during and after the Soweto Uprising.
According to Afriforum, the rights to broadcast the trailer during the event, which contained amongst others news footage of the SABC, were purchased from the SABC through the correct legal channels.
However, DStv previously purchased “exclusive access” to the SABC’s archives in the controversial 2013 deal where former SABC COO Hlaudi Motsoeneng received a success bonus of R11.5 million Rand which has since been declared unlawful by the Johannesburg High Court and ordered Motsoeneng to pay back.
Although the bonus received by Motsoeneng has been held to be unlawful, the agreement in relation to the 2013 deal has not been held to be unlawful as of yet and therefore is enforceable.
In terms of the Copyright legislation, an exclusive licensee may institute legal proceedings on any infringement of such licensed copyright material, however, the legislation is clear that in order for a licensee to acquire exclusive rights (exclusive even to the SABC) the formal requirements, the agreement needs to be in writing and signed by both parties.
Accepting that DStv duly acquired the exclusive rights to this content (having a signed agreement in writing acquiring the exclusive rights) the SABC did not have the rights to sell or license such copyrighted works to AfriForum.
This can potentially constitute a breach of the agreement between the SABC and DStv, exposing the SABC for liability towards DStv.
Additionally, this would also constitute a material misrepresentation or a breach of warranty by the SABC in the agreement that it concluded with AfriForum, exposing the SABC for liability towards AfriForum.
However, what is peculiar is that AfriForum has had the same 3-minute trailer on their YouTube channel for 6 years and DStv only decided now to proceed with take down action.
What is even more peculiar, is that the entire Tainted Heroes documentary has been published in January 2017 on YouTube, by YouTube user “Josias De Witt” which is still viewable and neither the SABC nor DStv have actioned take down procedures with YouTube.
It will be interesting to see what a Court’s view would be on the rights of AfriForum and DStv considering both have purchased, at least to some extent, the rights to broadcast the footage where the ownership to the footage seemingly still vests with the SABC.
