Some pitfalls of digital streaming platforms' takedown notification system: South African High Court comes to the rescue

Late last month (June), a High Court in South Africa delivered a ruling in Mdletshe and Another v Youtube Channel and Another - a dispute between two musicians and their former management company in which the management company had requested YouTube and other digital streaming platforms to takedown the musicians' songs from their platform on grounds of alleged copyright infringement. The court granted the Applicants' application for an interim injunction restraining the second Respondent from interfering in the contracts between the Applicants and various digital streaming platforms.

Background

The applicants are music producers and musicians and members of a music group named ‘Blaq Diamond’. Prior to January 2022 when they established their own music record and publishing company and entered into an exclusive digital distribution agreement with another company, the Applicants were signed to the 2nd respondent’s music and artist management company under an Artist Management Agreement; an Exclusive Management Agreement and Publication Agreement (the ‘Agreements’). Under the Agreements, the 2nd Respondent was exclusively and solely responsible for inter alia facilitating digital distribution of the Applicants’ music and remitting payments to the Applicants. 

The Applicants had through their own record label, released and uploaded their music to their YouTube channel as well as to other digital streaming platforms such as Deezer; Spotify; iTunes; etc. The 2nd Respondent was of the view that the Agreements with the Applicants did not permit them to release their music on those platforms without the 2nd Respondent’s permission or consent. Indeed, the Applicants had received a letter from YouTube indicating that YouTube would delete the Applicants’ channel if the Applicants did not take down the uploaded music per the second Respondent’s allegation.

The Applicants’ application to the High Court was for an interim injunction to inter alia stop the 2nd Respondent and/or any digital streaming service acting on the 2nd Respondent’s request/instruction from removing the Applicants’ YouTube channel and/or removing the Applicants’ music from any digital streaming platform pending the determination of the substantive application. 

The decision

In granting the interim injunction sought, the High Court noted that the relief sought by the Applicants was to protect their contractual relationship with digital streaming platforms including YouTube. This, according to the court was a valid cause of action and as such, there was nothing preventing the Applicants from seeking the relief sought in their application. 

The court also found that the Applicants satisfied other elements for the grant of an interim injunction viz: the existence of a prima facie right; a reasonable apprehension that if the interim relief is not granted the applicant will suffer irreparable harm; the balance of convenience favours the granting of the interim relief; and the absence of any other satisfactory remedy. According to the court, the 2nd Respondent’s actions in causing several takedown notices to be served on the Applicants constituted fault (or harm) against the Applicants. Further, the Applicants established prima facie right in showing that the 2nd Respondent had no legal basis for its interference with the Applicants’ contract with third parties as the 2nd Respondent had not paid royalties to the Applicants and that the Agreements had expired by effluxion of time.

Comment

This case underscores the limitations of dispute resolution systems such as YouTube’s notice and takedown system which seems more focused on avoiding copyright infringement liability. Were it not for the court in this case, YouTube may have deleted the Applicant’s YouTube channel and by extension, access to the Applicant’s music based on the claims by a party (i.e., the 2nd Respondent) who was not in a position to make the claims it made. That said, the Applicants filed their application on the urgent list in 2022 but could not make progress and the matter was only heard in 2023 on the court’s regular cause list. In that period, the 2nd Respondent may have succeeded in interfering with the Applicants’ contract with various digital streaming platforms.