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BY Craig Shapiro
Compulsory licences – Part 2
The saga continues… Read Part 1 here.
Background
On 22 July 2024, an infringement application was launched by Mr Phillips in the High Court. On 1 November 2024, Myburgh AJ, in a written judgment, granted the stay of the infringement application pending the decision of the Copyright Tribunal. A full summary of the High Court case is available here, and the case citation is available here.
The applicants brought an application before the Copyright Tribunal for an order granting them a licence to use the educational materials they had previously published (for the past 15 years) in terms of a (now expired) licence agreement.
The Copyright Tribunal
The purpose of the Tribunal is to avoid the abuse of monopoly rights. The Tribunal is statutorily empowered to deprive a copyright owner of full enjoyment of its copyright ownership by licencing such use to another person. Interestingly, this is only the second time the Tribunal has heard a case for compulsory licencing and the first related to literary works that were allegedly co-authored.
Issues
The applicants sought a compulsory license after Mr Phillips, the copyright holder, decided not to extend the license agreement with Allcopy Publishers, which had been in place for 15 years. The applicants argued that the refusal was unreasonable and that they required the license to continue their business operations.
Finding
The Tribunal emphasised the need to prevent the abuse of monopoly rights and ensure fair competition, highlighting the public interest in maintaining access to educational materials. The Tribunal granted the compulsory license, allowing the applicants to continue publishing until 31 December 2025.
Key Lessons
This case underscores the importance of contracts when licencing IP rights. You cannot simply rely on the monopoly afforded by the underlying right. It is important to not only regulate the use of the IP during the term of the agreement, but also what happens after termination.
Craig Shapiro
Executive | Intellectual Property
